Chapter 2 emphasizes the importance of arbitration agreements, their separability from the main contract, and the need for clarity and validity to ensure enforceability of an arbitration award. It also highlights ongoing efforts to modernize and harmonize the interpretation and enforcement of arbitration agreements through international conventions and model laws. First, it discusses the general characteristics of the arbitration clause. Second, it discusses the concept of separability which allows the arbitration clause to remain valid and enforceable even if the main contract is potentially invalid. Third, it discusses the issue of validity of the arbitration agreement and the fact that different courts interpret the requirements for valid arbitration agreement differently, leading to a non-uniform application of the New York Convention. To address this, UNCITRAL has made recommendation for more flexible interpretationd and has revised provisions of the UNCITRAL Model Law on Arbitration to promote harmonization in the interpretation and enforcement of arbitration agreements.

Specific procedures for third-parties joinder in arbitration rules are now included in most institutional rules, and stands out as a key recent development in arbitration procedure. This development highlights the system’s responsiveness and versatility in addressing users’ new needs to respond to the changes in business practice, which has become more complex and involved more parties and transactions.

The chapter provides an overview and assessment of the most frequently used rules, in both commercial and investment arbitration, including under the ICC, LCIA, CIETAC, SIAC, HKIAC and UNCITRAL, in relation to third-parties joinder. These rules have addressed in a variety of ways the central issue of consent of the parties to arbitration, which is a key foundation of international arbitration.

Moreover, the rules have also sought to continue to implement the principles of equality and neutrality, which are fundamental to arbitration and key reasons why parties select to go to arbitration in the first place. Thus, while addressing demands for flexibility and reconfiguration of a bi-lateral into a more multi-lateral system, the rules have also tackled and resolved appropriately the key problem of providing the parties with an equitable way to appoint arbitrators of their own choosing.

This fourth chapter analyses the first of our body categories: the implicit dispute. An implicit dispute is what happens when a person dies, their body enters a medical research and teaching culture, but informed consent is implied, never documented in full for the bereaved. A lot is therefore left unsaid, and deliberately so. It is normal for these sorts of bureaucratic processes to be very light touch, and to have audit procedures that look robust, but are the opposite. The aim being to make it a difficult logistical task to track at the time, or retrace later, exactly what is happening, or has happened, to human material once it enters a system of body supply. Even an insider might not know who exactly had shared a body and body parts, and what scientific studies these relate to. Those grieving thus never got an opportunity to make an informed choice. They are given the impression at the time of a loved one’s death that informed consent existed, when it did not. Instead, it was often implied, particularly by those staffing large teaching hospitals like St Bartholomew’s Hospital in London: our central focus.