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6.1 International commercial transactions and disputes are increasingly multi-party in nature, and a significant number of disputes referred to arbitration involve more than two parties.1 Multi-party scenarios include both situations in which all parties are bound by the same arbitration agreement(s) and are involved in the arbitration proceedings since the beginning, and situations in which the procedural complexity is compounded by the fact that: (1) the dispute arises out of more than one contract, possibly containing multiple arbitration agreements; (2) an additional party is joined in the proceedings after the filing of the request for arbitration; or (3) the multi-party scenario results from the consolidation of two or more already pending arbitrations.2 All these situations are generally also described as ‘complex arbitrations’.3 Some procedural issues, such as the constitution of the arbitral tribunal and the allocation of the advance on the costs of the proceedings, are common to all multi-party cases, others are specific to certain categories of multi-party cases (ie multi-contract cases, joinders and consolidations).
6.2 Multi-party disputes may be brought before state courts, whose jurisdiction is not limited ratione personae as consent is not a requirement before them. National procedural laws generally contain specific provisions that regulate the conduct of complex litigation.4 However, despite the limitation of consent, arbitration presents advantages over court litigation that may make it preferable for the resolution of complex disputes. Therefore, it was felt appropriate to develop specific procedural tools to have these disputes resolved through arbitration, in the interest of avoiding multiple proceedings, cost saving, efficiency and consistency of the decisions.
6.3 Due to the preponderant role of party autonomy in arbitration, the parties may want to regulate these situations directly in the arbitration agreement. It is common practice, especially in complex transactions, to negotiate and conclude complex multi-party arbitration agreements, in which the parties regulate the procedural scenario.5 In drafting these clauses, it is of course essential to bear in mind that third parties are not bound by them,
and that their effects can only extend to signatories, or to entities that can otherwise be considered as parties, to the arbitration agreement.
6.4 With time, several jurisdictions adopted specific legislative provisions to regulate this phenomenon, and, more recently, arbitration rules followed suit.
Institutional rules on complex arbitrations: the respective roles of institutions and arbitrators
6.5 In examining the institutional provisions governing complex arbitrations, it is important to bear in mind the distinction between administration of the procedure, on the one hand, and jurisdiction, on the other. Both the institutional rules on complex arbitrations and the decisions the institution is called upon to make in applying them are intended to organise the proceedings and regulate the parties’ participation therein. Neither the rules, nor the institution in exercising its decision-making power, are concerned with jurisdiction, the assessment of which is to be made by the arbitral tribunal and the courts. In other words, the question as to whether, and to what extent, it is possible to institute arbitration proceedings involving all parties that have participated in an economic transaction, which is the subject matter of institutional rules and decisions, should be distinguished from the question of the existence of an arbitration agreement binding all the parties, which is to be resolved by arbitral tribunals and state courts.66.6 This distinction between the administrative nature of the institution’s rules and decisions and the jurisdictional nature of the arbitral tribunal’s adjudicative power is clearly reflected in Article 6 of the ICC Rules, which regulates the institution’s screening of requests for arbitration. This provision empowers the institution to decide whether an arbitration can proceed, or can proceed with respect to all the parties or all the claims. However, under Article 6, the institution is not empowered to make an even preliminary decision on jurisdiction, ie a decision on the existence, validity and scope of the arbitration agreement.
6.7 This distinction is particularly evident in Article 6(6), which provides that when the ICC Court makes a negative decision on whether an arbitration can proceed, or can proceed with respect to all the parties (including in case of a joinder), ‘any party retains the right to ask any court having jurisdiction whether or not, and in respect of which [parties] there is a binding arbitration agreement’. Despite the literal reading of this provision, whether, in the absence of a decision of the arbitral tribunal on its own jurisdiction, a state court can decide on the validity of the arbitration agreement will ultimately depend on the national arbitration law. In all jurisdictions that apply the so-called ‘negative effect’ of the kompetenz-kompetenz principle, a state court would only be empowered to make a jurisdictional decision after the arbitral tribunal has ruled on its own jurisdiction.7
The administration of complex arbitrations under the ICC Rules
6.8 Express provisions dealing comprehensively with complex arbitrations were included for the first time in the ICC Arbitration Rules in 2012. Articles 7–10 of the Rules8 reflect the ICC Court practices in administering cases involving multi-party and multi-contract issues. These articles effectively formalise a number of already existing ICC Court practices, while also expanding on or providing greater flexibility to others.96.9 Before the 2012 Rules, it was considered unnecessary to incorporate provisions to specifically enounce how multi-party or multi-contract issues are handled. Upon drafting the 2012 Rules, however, it was decided that there was a need for more clarity, as there are more and more requests for arbitration being filed that involve procedurally complex issues.
6.10 Articles 7 and 8 are directly concerned with arbitrations involving more than two parties. While Article 7 outlines the procedure by which existing parties may join additional parties, Article 8 allows any party to make a claim against any other existing party, thereby accommodating complex webs of claims. Article 9 allows parties to make claims arising out of or in connection with multiple contracts, including claims brought under multiple arbitration agreements. Article 10 deals with the consolidation of two or more arbitrations pending under the Rules. While Articles 7–10 each serve a distinct function, it is not unusual that the ICC Court will assess an issue in light of multiple articles at once.
Joinder of additional parties
Automatic nature of the joinder and prima facie assessment of the court
6.11 Article 7 of the Rules deals with a party’s intention ‘to join an additional party’. This expression refers to a situation where there is already an arbitration pending under the Rules and one of the parties to that arbitration seeks to add a new party.106.12 Article 7 grants all parties the right to name additional parties. The term ‘additional party’ is used in the Rules to denote the procedural role of Article 7. When a party submits a request for joinder under Article 7, the additional party is automatically joined to the case. As such, the ICC Court does not at this stage of the proceedings assess the status of the additional party; whether the party to be joined is deemed a non-signatory or a third party to the underlying contract is inconsequential. Prior to the entry into force of the 2012 Rules, every request for joinder necessitated a decision by the ICC Court. This practice was altered by Article 7, which made joinder automatically effective as of the request for joinder.116.13 Any entity may be named as an additional party pursuant to Article 7, just as any entity may be named as a respondent in the request for arbitration. However, the fact that an entity is named as a party to the arbitration does not ensure its continuing involvement in the proceedings. As with any party named as such in a request for arbitration, the
additional party will be removed if: (1) the ICC Court determines pursuant to Article 6(4) that the arbitration shall not proceed with respect to that party; or (2) the arbitral tribunal determines that it has no jurisdiction over that party. Accordingly, a party wishing to join an additional party should as a preliminary matter consider carefully whether the arbitral tribunal has jurisdiction over that party so as to save time and promote efficiency. It should also bear in mind that it might be held liable for costs if it joins an additional party that is subsequently rejected.
6.14 Pursuant to Article 7(1), the ICC Court may carry out a prima facie assessment of jurisdiction pursuant to Article 6(3) and (4) where the additional party does not submit an Answer in accordance with Article 7(4), or if any party raises one or more pleas concerning the existence, validity or scope of an arbitration agreement between the parties. Thus, where a matter is referred to it pursuant to Article 6(3), the ICC Court will allow the matter to proceed against the additional party only where it is prima facie satisfied that the additional party may be bound by the relevant arbitration agreement.
6.15 Pursuant to Article 9, claims against the additional party can be made under a different arbitration agreement from the arbitration agreement(s) upon which the existing claims are based. However, Article 6(4), subparagraph (ii), lays down specific requirements for disputes involving multiple contracts. In such cases, the ICC Court will allow a matter to proceed only when it is prima facie satisfied that: (1) the arbitration agreements may be compatible; and (2) the parties may have agreed to have such claims heard together in a single arbitration. If the ICC Court is not so satisfied in the context of a request for joinder, it will not allow the matter to proceed against the additional party.
The procedure
6.16 Article 7 addresses a number of procedural issues that arise in relation to joinders, such as: (1) the time of the submission of a request for joinder; (2) the information the request for joinder must contain; (3) the notification of a request for joinder to the additional party; and (4) the additional party’s answer to the request for joinder. By referring to Articles 6(3)−(7) and 9 and repeating the language of Article 4(2), the joinder provision makes it clear that the request for joinder has effects that are equivalent to those of a request for arbitration. Arbitration against the additional party commences on the date the request for joinder is received by the Secretariat.
6.17 Article 7 puts claimants and respondents on an equal footing in relation to naming parties. Requests for joinder have the same effect as requests for arbitration in that they immediately and automatically bring the named parties into the arbitration. This ensures that claimants, respondents and even additional parties are all treated equally from an administrative perspective when they name a ‘new’ party to the arbitration.
6.18 Any party to the arbitration, whether a respondent, claimant or additional party, may request the joinder of an additional party pursuant to Article 7(1). Several parties can jointly request the joinder of an additional party.
6.19 A request for joinder should be sent to the Secretariat team in charge of the case file and not directly to the additional party. The Secretariat will notify the request for joinder to all other parties, including the additional party, pursuant to Article 7(3). Pursuant to this provision, the requirements of Article 4(4) apply mutatis mutandis to requests for joinder. The Rules do not lay down any requirements with respect to the form of requests
for joinder. Accordingly, they may take any form, provided they contain the information mentioned in Article 7(2) (see below). When a request for joinder is submitted simultaneously with an answer to a request for arbitration (or an answer to a request for joinder), the parties are free to file either separate or combined documents.
6.20 The request for joinder must provide: (1) the case reference number of the existing arbitration; (2) the name and contact information of the additional party; (3) the names in full, description, address and other contact details of all other parties to the dispute, to facilitate the Secretariat’s task of notifying those parties of the joinder (this information is also necessary because the request for joinder is the initial document the additional party will receive, so it needs to be informed of the case and the identity of its parties); and the information required by subparagraphs (c)–(f) of Article 4(3).126.21 Article 7(1) provides that a request for joinder must be made before the confirmation or appointment of any arbitrator by the ICC Court or (in relation to confirmations only) the Secretary General, unless all parties agree otherwise. In practice, the Secretariat decides when to invite the Secretary General or the ICC Court to confirm or appoint arbitrators pursuant to Article 13 and will not usually proceed with the confirmation or appointment of an arbitrator without having warned the parties of its imminence and put them on notice of its effect on the possibility of submitting a request for joinder.
6.22 The last sentence of Article 7(1) empowers the Secretariat to fix a time limit for the submission of a request for joinder. This enables the Secretariat to avoid undue delay in the constitution of the arbitral tribunal, which may be caused by the tardy submission of a request for joinder. The Secretariat may exercise its power to fix time limits vis-à-vis any party, including the parties that initiated the arbitration, and at any time before the confirmation or appointment of any arbitrator.13 A party may make a reasoned request for an extension of the Secretariat’s time limit, specifying the date by which it intends to submit the request for joinder.
6.23 Article 7(3) contains a cross-reference to Article 4(5). Accordingly, the Secretariat will notify the request for joinder and will follow the notification process set out in Article 4(5). It may consequently withhold notification if the requesting party fails to meet its obligations under Article 7(3).
6.24 At this stage, the Secretariat will adjust the case caption to reflect the inclusion of the additional party or parties to the proceedings. The additional party will by default
be included as a third pole, unless it informs the Secretariat that it is aligned with either the claimant or the respondent.146.25 Article 7(4) requires additional parties to submit an answer to the request for joinder, in accordance with Article 5(1)–(4). If the additional party also wishes to make claims against the requesting party or any other existing party to the arbitration, Article 7(4) clarifies that such claims are to be made under Article 8(1). Pursuant to Article 5(1), all answers are to be submitted to the Secretariat.
6.26 Under Articles 7(4) and 5(1), the additional party has 30 days to submit its answer. The time limit starts running when the additional party is notified of the request for joinder by the Secretariat pursuant to Article 7(3). The fact that the request for joinder may have been received at an earlier date directly from the requesting party is irrelevant. The Secretariat may extend the 30-day time limit, if need be.
6.27 The Rules do not lay down any requirements with respect to the form of the answer to the request for joinder. An answer may take any form, provided it contains the information required by Articles 7(4) and 5(1) (see below). There are no restrictions on how this information is to be presented. When claims pursuant to Article 8(1) or a request for joinder pursuant to Article 7(1) are submitted simultaneously with an answer to the request for arbitration, parties are free to make these submissions separately or together in a single document.
6.28 Pursuant to Articles 7(4) and 5(1), the additional party must provide the following information in its answer to the request for joinder: (1) its name, address and other contact information; (2) the name, address and other contact information of any person representing it in the arbitration; (3) its comments on the description of the nature and circumstances of the dispute giving rise to the claims against it and on the basis upon which the claims are made (Article 4(3), subparagraph (c)); (4) its response to the relief sought against it; (5) if not already provided in an application for an extension of the time limit for submitting an answer to the request for joinder, all relevant particulars and any observations or proposals concerning the number of arbitrators and their choice in light of all other parties’ proposals and in accordance with the provisions of Articles 12 and 13; (6) all relevant particulars and any observations or proposals as to the place of arbitration, the applicable rules of law and the language of the arbitration; and (7) where the additional party wishes to include a request for joinder of its own, all information required in relation to such a request (the Secretariat will usually require the additional party to include in its answer any request for joinder it may wish to make).
6.29 Article 5(5) and (6), which allow respondents to make counterclaims in their answers and claimants to submit a reply to those counterclaims, do not apply to additional parties joined under Article 7. Additional parties may nonetheless make claims pursuant to Article 8 against any existing parties. Article 8 empowers parties to make claims against any other party prior to the completion of the terms of reference.
6.30 Since the additional party becomes a party to the arbitration as soon as the request for joinder has been submitted, it may request the joinder of another additional party pursuant to Article 7(1). The Secretariat will usually fix a time limit pursuant to Article 7(1) for the additional party to do so, as it does for the original parties.
Requirements for joinder
6.31 The 2012 Rules require a party requesting joinder to bring claims against the additional party. The use in Article 7(1) of the words ‘request for arbitration against the additional party’ and the cross-reference to Article 4(3), subparagraph (d), highlight the principle that the request for joinder must contain actual claims against the additional party or involve the additional party in outstanding claims. Merely reserving the right to make a claim at a later date or making a conditional claim is generally insufficient.
6.32 This requirement, however, does not present a definitive impediment to joinder in the practical application of Article 7. In the absence of an objection, the lack of a claim against the additional party in the request for joinder would not impede the Secretariat from notifying the request to the parties.
6.33 Moreover, pursuant to an evolution of the ICC Court’s practice, the requirement is considered satisfied whenever the additional party is involved or implicated in an outstanding claim, either as claimant or as respondent.15 In one instance, the ICC Court decided that the arbitration could proceed against an additional party that had been joined by claimant as co-claimant. Likewise, in other cases, the ICC Court has decided that the arbitration proceed against an additional party against which no claims had been advanced where the additional party’s interests were aligned with the joining party, such as when the additional party was the assignee of the joining party’s rights under the agreement in question. In addition, the ICC Court has decided that the arbitration shall proceed against an additional party where that additional party had acted in unity with the non-joining party and would thus be equally bound by the award. This practice aims at ensuring to the extent possible that the final award be enforceable. Indeed, in some instances there may not be an express claim against the additional party, but such party is considered a necessary party by the court of enforcement and should be joined to the arbitration from the outset. In a recent decision, the Paris Court of Appeal annulled an arbitral award on grounds that the arbitral tribunal lacked jurisdiction to order the dissolution of a company which had not been a party to the arbitration.16
6.34 Once joined the additional party or parties are to nominate an arbitrator under Article 12(7), either jointly with the claimant or the respondent. Even if the additional party is aligned with either claimant or respondent, it is still possible that the parties fail to reach an agreement on the nomination of an arbitrator. In either case, the ICC Court may decide to appoint each member of the arbitral tribunal under Article 12(8).
Claims between multiple parties
Purpose and scope
6.35 In a multi-party arbitration, Article 8(1) explicitly allows any party to the arbitration, whether a claimant, respondent or additional party, to make a claim against any other existing party. The provision also sets a time restriction on the making of new claims: they need to be made before the terms of reference are established. If made thereafter, they will require the arbitral tribunal’s authorisation pursuant to Article 23(4).
6.36 Article 8(1) provides a means of making claims outside the framework of the request for arbitration, the answer to the request, and the request for joinder, although it also applies to claims made in any of those three documents in a multi-party arbitration.176.37 Article 8(1) is of practical importance in so far as it clarifies that, in an arbitration with more than two parties, any party can make a claim against any other party; that parties are not restricted to advancing claims only as between opposing sides in the dispute.
6.38 More generally, any party may make claims against any other party irrespective of whether that party has made a claim against the former.
6.39 Claims made under Article 8(1) may include: (1) claims made by one or more respondents against another respondent, or by one or more claimants against another claimant (generally called ‘cross-claims’);18 (2) claims made by an additional party joined pursuant to Article 7(1) against one or more existing respondents or claimants (the possibility of making claims under Article 8(1) is explicitly recognised in Article 7(4)); (3) claims against an additional party (whether it becomes a claimant or respondent or neither) joined pursuant to Article 7(1) made by the parties that did not submit the request for joinder; and (4) claims made by one or more claimants against one or more respondents in cases involving multiple claimant and/or respondent parties.
6.40 Article 8 covers only claims brought against an existing party to the arbitration. Any claim against a person or entity not a party to the arbitration must be made pursuant to Article 7 and in accordance with the procedure set forth in Article 7(2) and (3).
Procedure
6.41 Like claims made under Articles 4, 5 or 7, those made under Article 8(1) are immediately integrated into the proceedings as soon as they are made, without need for a
decision of the ICC Court to admit them. The cross-reference to Articles 6 and 9 clarifies that those general provisions and the restrictions contained therein also apply to claims made under Article 8. As expressly noted in Article 8(1), any claim may be subject to the ICC Court’s prima facie assessment of jurisdiction under Article 6(3)–(7). In addition, where a claim is based on an arbitration agreement other than that upon which existing claims have been brought, Article 8(1), in referring to Article 9, makes it clear that the provisions relating to situations involving multiple arbitration agreements contained in Articles 9 and 6(4), subparagraph (ii), apply.
6.42 Article 8(3) draws an important distinction in relation to the time at which such claims are made. Parties should send the document containing the claims to the Secretariat, with a copy to all parties to the arbitration. However, if the Secretariat has transmitted the case file to the arbitral tribunal, this will not be necessary. Instead, the arbitral tribunal will determine the procedure for making claims. If an arbitral tribunal has not given directions on this point, a party will need to request such directions from it before filing the claim.
6.43 Parties are not required to pay an additional registration fee when making claims against existing parties to the arbitration. Pursuant to Articles 8(3), 4(4), subparagraph (a), and 3(2), the claiming party should technically supply one hard copy of the document containing its claim(s) for each other party and one for each arbitrator, as well as one for the Secretariat’s records.196.44 No formal requirements are laid down in Article 8. A claim may therefore take any form, provided it contains the information required. Claims may be contained in an ordinary letter, in briefs, or in the answer to the request for arbitration or the request for joinder.
6.45 After the terms of reference have been signed or approved by the ICC Court a party may not make additional claims without the authorisation of the arbitral tribunal. Subject to any contrary order of the arbitral tribunal, any party may make additional claims at any time prior to the establishment of the terms of reference.
6.46 According to Article 8(2), a party making a claim under Article 8(1) must provide the information required of requests for arbitration in Article 4(3), subparagraphs (c) to (f).
6.47 The Secretariat will notify any claims made under Article 8(1) to the party against which such claims are made and ask it to respond within 30 days. Although not expressly provided in the Rules, the Secretariat will also send a copy of the document containing the claims to all other parties to the arbitration. Where the claims are made in ordinary correspondence, the Secretariat may not formally notify the document containing the claims, but rather note that it was copied to all parties. If already constituted when the claims are made, the arbitral tribunal rather than the Secretariat will determine the procedure for such claims.
6.48 The Secretariat will grant the party against which claims are made a 30-day time limit for submitting a response. The time limit begins as soon as this party has been notified of the claims by the Secretariat. Receipt of the document directly from the party making the claim(s) is irrelevant. The Secretariat may extend the 30-day time limit. A
party submitting a response to claims made under Article 8(1) shall provide comments on the nature and circumstances of the dispute and the basis upon which the claim is made and on the relief sought.
Multi-contract arbitrations
6.49 Article 9 of the ICC Rules, also introduced with the 2012 revision, confirms that claims may be brought under different contracts and different arbitration agreements in one and the same arbitration.20 As mentioned, arbitrations involving claims based on multiple contracts do not necessarily involve more than two parties. However, this will be the case each time the parties to the multiple contracts are more than two or are not identical.
6.50 Article 9 applies to the situation where a claimant commences arbitration by raising claims under two different contracts each of which includes an arbitration agreement, but also where a claimant commences arbitration and makes claims under one arbitration agreement, and the respondent makes a counterclaim under a different arbitration agreement. In both cases, the claims can be heard in that arbitration provided that the conditions of Articles 6(3)–(7) and 23(4) are met, saving the parties from having to commence two separate arbitrations.
6.51 Article 9’s cross-reference to Article 6(3)–(4) is essential to its operation. It ensures that Article 9 is not used as a jurisdictional or contractual basis for hearing together in a single arbitration claims made under more than one arbitration agreement where there is no consent. Claims arising from different arbitration agreements may be heard together in a single arbitration only if the ICC Court is satisfied that: (1) the arbitration agreements under which those claims are made may be compatible; and (2) all parties to the arbitration may have agreed that those claims can be determined together in a single arbitration.
6.52 The Secretariat will proceed differently depending on whether all parties are participating in the proceedings and an answer has been submitted by any respondent(s) or any party raises an objection to the claims arising out of more than one arbitration agreement. Where all parties are participating in the arbitration and no party objects to all the claims being heard together in a single arbitration, the file will be transmitted to the arbitral tribunal without need for a prior decision from the ICC Court. Having related disputes arising under different arbitration agreements resolved in one arbitration may be in the parties’ interest, as this can avoid inconsistent results and reduce costs. However, where claims are made under more than one arbitration agreement and the Secretariat considers that the arbitration agreements may be incompatible, the Secretariat will first raise any potential incompatibility with the parties and endeavour to elicit an agreement that rectifies it. It may also ask the parties if they want the ICC Court to resolve the incompatibility.21 If the parties fail to reach an agreement that resolves the incompatibility, it is likely that the Secretary General will refer the matter to the ICC Court under Article 6(3) for a decision under Article 6(4), subparagraph (ii).
6.53 The term ‘consolidation’ refers to a procedural mechanism whereby two or more pending arbitrations are merged into a single arbitration.22 In ICC arbitration, consolidation pursuant to Article 10 does not include situations where claims have been brought in a single arbitration under more than one contract or more than one arbitration agreement. These are covered by Article 9.
6.54 Article 10 sets out the circumstances in which, upon a party’s request, the ICC Court may decide to consolidate two or more arbitrations pending under the Rules into one.23 Consolidation enables a single arbitral tribunal to decide all issues, which is conducive to procedural efficiency and lower costs. It also eliminates any risk of inconsistent decisions rendered in different proceedings. However, consolidation is not always appropriate. Article 10 sets out a framework within which the ICC Court may determine whether or not to consolidate.
6.55 The decision to consolidate may be based on the parties’ agreement where the parties in the proceedings to be consolidated were the same. Yet, consolidation can also be appropriate in other situations, such as where parties, although not all involved in all of the pending arbitrations, are nonetheless bound by a single arbitration agreement. For example, parties A, B and C sign a contract containing an ICC arbitration agreement and A initiates a first arbitration against B and C, after which B initiates a second arbitration against C. In situations such as this, it may be useful to bring together all claims into a single arbitration to avoid parallel arbitral proceedings.
6.56 The ICC Court may not consolidate cases of its own volition. Rather, Article 10 requires a request for consolidation, which may be made by any party to any of the arbitrations to be consolidated, whether a claimant, respondent or an additional party. A party that wishes to have several arbitrations consolidated must submit a written request to the Secretariat. The request may take the form of an ordinary letter, which should contain all information that is relevant and necessary for the ICC Court to exercise its discretion under Article 10. In particular, it should specify how and why the different disputes fit into one of the situations allowing for consolidation. Parties may also wish to include a concise explanation as to why they consider consolidation appropriate in the circumstances.
Agreement to consolidate
6.57 The ICC Court may consolidate arbitrations in only three situations: (1) where all parties agree to consolidate; (2) where the multiple arbitrations are based on the same arbitration agreements; and (3) where the multiple arbitrations are based on different arbitration agreements. The conditions for consolidation under these three scenarios differ.
6.58 Under the first situation, the ICC Court can order consolidation pursuant to an explicit agreement of all the parties in all of the arbitrations to be consolidated. Where there is such an agreement, the Secretariat will take the administrative steps necessary to
effect the consolidation without requesting a decision from the ICC Court. This is made possible due to a standing decision of the ICC Court to consolidate arbitrations where all parties agree to do so.
6.59 Depending on the language of the arbitration agreement, the ICC Court may need to determine as a threshold issue whether it even retains the power to consolidate under Article 10. For example, in one case the parties included in the arbitration agreement a clause that expressly anticipated the possibility to consolidate any arbitrations brought under either of the relevant contractual documents. However, the language in this specific clause seemed to derogate from the rules, vesting the power to consolidate in the ‘first tribunal confirmed by the ICC Court’. The issue faced by the ICC Court, therefore, was whether this provision effectively overrode the ICC Court’s power to consolidate under Article 10. Concluding that the arbitrations did fall within the scope of the consolidation provision and in light of the power conferred upon the arbitral tribunal, the ICC Court decided not to take a decision.
6.60 The parties may place conditions upon the agreement to consolidate. In one instance, the ICC Court decided to consolidate in accordance with Article 10, subparagraph (a) where the parties agreed to consolidate after the co-arbitrators in each case had already been nominated, subject to certain conditions placed by the non-requesting parties, including maintaining the arbitral tribunal as constituted in the first case. This condition required one party to renounce its nomination of a co-arbitrator in the second case and the court to replace the already confirmed or appointed arbitrator.
6.61 Where an arbitration agreement expressly prohibits consolidation, the ICC Court will refrain from consolidating.
Same arbitration agreement
6.62 The ICC Court may consolidate arbitrations where all of the claims in the different arbitrations are made under the same arbitration agreement. If that requirement is met, the ICC Court may consolidate arbitrations even if the parties to the arbitrations are not all the same. There is usually no reason to exclude consolidation a priori where all of the parties are bound by the same agreement to arbitrate, even though they may not all be parties to both pending arbitrations. It is important to recognise that under Article 10, subparagraph (b), the phrase ‘same arbitration agreement’ is used to denote that all claims arise under one, single, arbitration agreement. The existence of multiple arbitration agreements drafted in identical terms does not fall within the scope of this provision.
6.63 In certain circumstances, the ICC Court may also consider that claims brought under multiple arbitration agreements be treated as brought under one agreement if there is a cross-reference clause. The existence in each contract of a cross-reference clause to the arbitration agreement contained in the other contract may evidence a link in the claims and allow the ICC Court to consider the claims are brought under the same arbitration agreement.24
6.64 It may also be that one party will object to consolidation under Article 10, sub-paragraph (b), by asserting that certain claims are actually outside the scope of the arbitration agreement and thus do not qualify as legitimately arising under the same arbitration agreement. However, as long as the claims are brought under the same arbitration agreement, the question of scope will be left to the arbitral tribunal to decide once constituted.
Different arbitration agreements
6.65 The ICC Court may also decide to consolidate arbitrations in which the claims arise under more than one arbitration agreement, but only if: (1) the arbitrations are between the same parties; (2) the dispute arises in connection with the ‘same legal relationship’; and (3) the ICC Court finds the arbitration agreements to be compatible. The third requirement is also found in Article 6(4), subparagraph (ii), when the ICC Court considers whether a single arbitration can proceed on the basis of more than one arbitration agreement. This shows the similarity of situations between a single arbitration involving claims under more than one arbitration agreement and the consolidation of two or more arbitrations involving claims made under different arbitration agreements. The slight difference between Article 6(4), subparagraph (ii), and Article 10, subparagraph (c), is that for the former the ICC Court is taking a prima facie decision as to whether a case can proceed whereas in the latter the administrative decision to consolidate is final.
6.66 The ICC Court applies the requirement that the multiple arbitrations be between the same parties strictly, ie that all parties to the first case must be a party to the other cases. For instance, the ICC Court initially decided not to consolidate three related cases because the parties were not identical. However, the requesting party submitted a subsequent request for consolidation in conjunction with a request for joinder of the additional parties. After deciding to join the parties under Article 7, thus rendering the parties identical, the ICC Court consequently considered the requirements of Article 10 subparagraph (c) met and ultimately decided to consolidate.256.67 Both in the context of multi-contract arbitration (Article 6(4)(ii)) and in the context of consolidation (Article 10(c)), the ICC Court interprets the requirement that the disputes arise in connection with the ‘same legal relationship’ as meaning that all arbitration agreements relied upon must be related to the same economic transaction.266.68 Under the third requirement, the arbitration agreements must be compatible. This would not be the case if the arbitration agreements refer to different places of arbitration, or provide for a different number of arbitrators, or for a different process for their appointment.
6.69 The ICC Court has discretion to grant or deny a request for consolidation where the requirements of Article 10, subparagraphs (a), (b) or (c), are satisfied. This discretion is reflected in the use of the term ‘may’ at the beginning of Article 10.
6.70 In exercising its discretion, the ICC Court may take into account any circumstances it considers to be relevant, including whether one or more arbitrators have been confirmed or appointed in more than one of the arbitrations and, if so, whether the same or different arbitrators have been confirmed or appointed. Once consolidated, the previously separate arbitrations will become a single arbitration to be decided by a single arbitral tribunal, so if arbitrators have been confirmed in more than one of the arbitrations, and if those arbitrators are different individuals, the ICC Court will be unable to consolidate the arbitrations as it will be impossible to constitute a single arbitral tribunal unless the different arbitrator(s) resign or are removed by the ICC Court.
6.71 Another element that the ICC Court will consider in its discretion is the procedural stage of the cases to be consolidated, and any delays that consolidation may cause. Unlike under Article 4(6) of the 1998 Rules, under Article 10 the terms of reference do not constitute a cut-off point for consolidation. Whether the terms of reference have been signed or approved will be addressed in the ICC Court’s discretion only if it is relevant to the issues presented by the request for consolidation.276.72 One other important aspect that the ICC Court will seriously consider is whether consolidation would jeopardise a party’s right to equal treatment in the constitution of the arbitral tribunal. This issue becomes relevant most often when the elements of Article 10, subparagraph (b) are fulfilled, yet the parties are not identical. If the arbitral tribunal has already been constituted in the first case, then any party in the second case that is not party to that first arbitration would not have had the opportunity to participate in the constitution of the arbitral tribunal. In that case, the ICC Court may use its discretion to refuse consolidation.
6.73 Finally, where the ICC Court decides not to consolidate arbitrations, it may nevertheless be able to appoint the same arbitral tribunal, or at least president, or president as sole arbitrator, which may then run the cases in parallel.
Formalities
6.74 When the parties have agreed or when the ICC Court has decided to consolidate two or more arbitrations, the Secretariat will carry out the necessary administrative steps in relation to the case reference number and caption and accounting matters.
6.75 Article 10 clarifies that the arbitrations will be consolidated into the arbitration that commenced first in time, unless otherwise agreed by the parties. This means that
the consolidated case will bear the case number of the arbitration that commenced first, while mentioning the numbers of the cases that were consolidated into it.28 The Secretariat will also inform the parties of the new case caption and set a short time limit (usually no longer than a week) within which parties may submit any objections.
Conclusions
6.76 In introducing specific provisions on complex arbitrations, different institutions have followed different approaches.29 This demonstrates that there is no hard and fast rule, or universal solution to the problem. Whether, under what conditions and how a multi-party arbitration is permissible will depend on policy decisions of each specific institution, which will aim to strike a balance between procedural flexibility and economy, on the one hand, and legal security, on the other.
6.77 The relevant provisions are generally inspired by the interpretation of the will of the parties, and tend to reflect their likely intent upon entering into the arbitration agreement. In this respect, references to the ‘same arbitration agreement’ as a basis for consolidation, to the ‘same legal relationship’ or to the compatibility of the arbitration agreements, which are common in multi-party institutional arbitration rules, should be read as indicators of the parties’ presumed intention. These presumptions may however be reversed by the arbitral tribunal, which is ultimately called upon to decide on its own jurisdiction, and, at a later stage, by state courts, which may re-examine the decision of the arbitral tribunal in the context of setting aside or enforcement proceedings.
6.78 The ICC, like other arbitral institutions, has adopted rules providing solutions for consolidation, joinder, multi-party and multi-contract situations. These provisions seek to avoid inefficiencies and to reduce the risk of inconsistent outcomes. At the same time, they respect party autonomy by providing solutions that are likely to be upheld by arbitral tribunals and state courts in their jurisdictional decisions.
6.79 By incorporating these mechanisms into their arbitration agreement, parties can avoid having to deal with complex procedural issues directly and can instead rely on solutions that are tested in the daily activity of the institution administering arbitrations. However, the relevant provisions do not purport to resolve all the issues that may potentially arise in cases. Therefore, equally important is the role of the institution in interpreting the rules and applying them to the circumstances of cases.