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Multi-Contract Arbitration
Philippe LEI3OULANCEI,*
INTRODUCTION
In recent years, arbitral practice has witnessed the development of complex

arbitrations as well as the specific procedural difficulties inherent thereto. A great source
of such problems can be found in the large number of interrelated agreements involved
in the performance of major projects, namely in the engineering, construction, raw
materials, mining and oil sectors. These complex contractual relationships may give rise
to parallel arbitrations and to situations in which the unity of the arbitral proceedings
may be affected by the multiplicity of issues, agreements or parties involved in a certain
dispute. However, international arbitration, which was tailored to the traditional two-
party model involving a single contract, does not always provide satisfactory solutions
to the procedural problems brought up by complex arbitrations.
As these situations have become very frequent in today's international business
world, various authors have proposed solutions to the difficulties, some pleading for
compulsory consolidation of parallel arbitral proceedings by court order, others for
having these procedural questions governed by institutional and national rules regarding
international arbitration. But there is no generally agreed opinion about the best way to
handle procedural problems regarding complex arbitrations.
Strangely enough, in some aspects, domestic litigation seems better adapted to
certain situations than international commercial arbitration, namely those involving
related proceedings. Whereas courts in both civil-law and common-law countries are
empowered to order joinder irrespective of the wishes of the parties in legal actions,
most arbitration institutions and most national courts have no means of consolidating
two or more arbitral proceedings without the consent of the contracting parties. This
backward position is regrettable, especially in view of the fact that arbitration is expected
to provide more efficient solutions than litigation to the difficulties found in
international business today.
It is rather astonishing to observe that most of the literature about complex
arbitration deals with multi-party arbitration, whereas the situation of parallel
proceedings in multi-contract arbitrations involving two parties only-a situation much
* Avocat au Barreau de Paris.

The author would like to express his gratitude to Maruska Guerreiro Lopes, Member of the Bar ofSao Paulo,
for her assistance in the preparation of this article.
Copyright © 2007 by Kluwer Law International. All rights reserved.

No claim asserted to original government works.
JOURNAL OF INTERNATIONAL ARLBITRATION
simpler than multi-party arbitration and which has become very frequent--seens to
have been ignored by doctrine.'
Taking into account the place that authors have dedicated to this hypothesis and
the fact that multi-contract situations involving two parties only have been put into the
same basket as multi-party arbitrations, one may be tempted to consider that the same
conclusion which has been drawn up for multi-party arbitration should be applied to
bi-party arbitrations. Actually, some solutions proposed for the former can be applied to
the latter, but these solutions are not totally transposable, as two-party arbitrations give
rise to very specific problems and present neither the same degree of complexity nor the
same difficulties as multi-party arbitrations.
The main problem encountered in multi-party arbitration arises from the fact that
arbitration rests on consensus; 2 bringing and forcing a third party before an arbitral
tribunal represents a violation of the main premise of the classic theory of absoluteness,
that is the autonomy of will. 3 This problem does not exist in the context of two-party
arbitrations, where no third parties are involved in the proceedings, and where the legal
link remains bipolar, since both parties are tied to arbitration by one or several
arbitration clauses.
Whereas it is commonly agreed that consolidation is desirable, consolidation of
multi-party arbitrations is considered to be unworkable. On the other hand, as will be
demonstrated hereinafter, for multi-contract arbitrations involving two parties only,
consolidation is not only attractive, but also practicable. It should be kept in mind that
multi-contract arbitrations involving the same parties, or involving two parties only, are
situations which should be distinguished from multi-party arbitration. Accordingly, the
former should not be condemned by the criticisms addressed specifically to the latter; it
would be not only unjust but also illogical to put multi-contract arbitrations in the grave
on the grounds of the death penalty which was ordered exclusively against multi-party
arbitration.
The procedural difficulties found in complex arbitration cannot remain indefinitely
unanswered. As pointed out by Horacio A. Grigera Naon: "...the law of arbitration
I Among the few publications which contemplate this last question: for multi-contract situations between the
same parties, see Horacio A. Grigera Naon, (ed.), Comnittee on hiternational Commercial Arbitration, Complex
Arbitrations (Miti-Issite, Multi-Party, Multi-Contract): First lIterim Report, Report of the Sixty-Sixth Conference of
the International Law Association, Buenos Aires Conference 1994, The International -Law Association, London,
1994, pp. 699-704; and Antoine Kassis, Riflexions stir le rolement d'arbitrage de lachaoibre de commerce internationale-
Les diviations de 'arbitrage institutionnel, L.G.D.J., Paris, 1988, Nos. 403-405; for multi-contract situations,
independent of the problems raised by the number of parties involved, see Ph. Fouchard, E. Gaillard and
B. Goldman, Traiti de I'arbitragecominerdal international, Litec, Paris, 1996, Nos. 519 etseq.
2 See Giorgio Bernini, Arbitration in Multi-Party Business Disputes, in Yearbook Comnmnercial Arbitration,
(hereinafter Y.C.A.), Vol. v, Kluwer, Deventer, 1980, pp. 291-300; and E. Gaillard, Pri-rapport sur l'arbitrage imnilti-
partite et laconsolidation de procidures arbitrales connexes, The International Law Association Report of the Sixty-Third
Conference, Warsaw, 1988, p. 480.
-3"A party's will binds in absolute terms only himself and the person or persons with whom he has contracted,
and only with respect to agreed-upon obligations": see Nagla Nassar, Sanctity of Contracts Revisited: A Study in the
Theory and Practice of Long-Tenr lIternationalCoummercial Transactions, Martinus Nijhoff Publishers, London, 1995,
p. 59.

MULTI-CONTRACT ARBITRATION
cannot ignore these situations [complex arbitrations] which have become the norm in
4
present day international commerce."
As a matter of fact, it appears that joinder of interrelated parallel proceedings-as
currently practised by national courts-is a very useful procedural rule, which could
easily be transposed to multi-contract arbitrations involving two parties only. The aim
of the present discussion is not to make an exhaustive comparative study of the role
played by the rule ofjoinder in the different arbitral rules and law systems, but simply
to suggest some ideas and considerations about incorporating this principle into the
development of procedural rules in international arbitration. Sir John Donaldson once
said that "...the rules and procedure governing arbitration are a living thing which
inevitably require statutory amendment from time to time in the light of experience and
5
changing conditions."
Although multi-contract situations may involve two or more parties, this study
deals only with multi-contract situations involving two parties only, which require the
joinder of parallel arbitral proceedings. Part One of this article discusses the procedural
aspects of multi-contract situations, that is the necessity of applying the rule ofjoinder
to certain multi-contract situations. Part Two examines how parties, arbitration
institutions and arbitrators deal with multi-contract situations, and analyses whether the
concept ofjoinder finds any substantial alternative remedy. A list of contents is annexed.
PART ONE: ProceduralAspects of Multi-Contract Situations
In the international business world, a contractual relationship between two or more

parties may involve a multi-contract situation. 6 This is a broad concept characterized by
the presence of two or more interrelated contracts, irrespective of the number of parties
involved. It includes not only groups of contracts (that is, contracts which, although
formally independent, are part of a single transaction or operation) but also cases where
there are several agreements, having no connection with each other, between the same
parties. This idea includes, for example,7 groups of contracts: contrats composis; contrats
complexes; contratsannexes; contrats mixtes; contratprincipal,or contrat de base/contrataccessoire;
framework agreements followed by application agreements:8 sous-contrats; joint-
ventures, groupements d'entreprises;contrats unis; contrats lies.9 The following developments
will be limited to situations regarding groups of contracts. Only a brief analysis of some
cases, and not a full comprehensive study, will be presented here.
4 See Naon, op. cit., supra, footnote 1,p. 690.

sQuoted by V.V. Veeder in Consolidation:More News from the Front-Lie--TheSecond Shni On Case, Arbitration
International, July 1987, p. 266.
See Naon, op. cit., supra, footnote 1, pp. 690 et seq.
7 This is only an illustrative list, not an exhaustive one.
8 See Alain Sayag, Le contrat-cadre:Exploration comparative, Litec, Paris, 1994.
9 See Andrea Giardina, La Convention de Rome et les contrats lis entre eux, Conference at the Conmit6 franqais de
droit international priv6, 10 May 1996 (forthcoming).

JOURNAL OF INTERNATIONAL AIBITRATION
The concept of groups of contracts"' is one of the "products" of the modern

world." According to the classic theory of contract, each individual agreement within
a group of contracts is completely independent from the others. If there is no formal link
between agreements, each one of them is considered to be an extrinsic fact regarding
the others. However, this traditional notion does not correspond to current contractual
practice.12
Actually, contractual relationships usually involve long-term economic dperations
comprising a large number of distinct, but interrelated, contracts. In many cases, the
different kinds of agreements seem to give rise to an indivisible transaction, an
economical and operational unit "hidden" behind a multi-contract faqade, that actually
amounts to one fundamental single relationship. The sale of a piece of real estate, for
example, has become a very complex operation, which sometimes requires the
conclusion of a variety of complementary or ancillary agreements, such as a financing
agreement, a mortgage and securities. Accordingly, the sale becomes the main element
13
and the goal of an operation which is not limited to it.
The notion of interrelated agreements takes into account this reality and defines
agreements in relation to the business context in which they operate and to the purposes
they are meant to serve, as discussed in Section i, below. This concept has contributed
to implementing joinder in multi-contract situations. Joinder of proceedings is a
procedural rule which is known in the domestic laws of many countries. Section ii refers
to French law of civil procedure for the purpose of illustrating the tools law provides for
the joinder of civil actions regarding multi-contract situations. This will help determine,
in Section ill, the extent to which similar solutions are conceivable and desirable for
bi-party arbitration proceedings.
II For the notion of groups of contracts, seeJacques Ghestin, Traiti des contrats-la vente, L.G.D.J., Paris, 1990,
No. 1039; Bernard Teyssi&, Les groupes de contrats, L.G.D.J., Paris, 1975; and Nassar, op. cit., supra, footnote 3,
pp. 58 et seq. As explained by Professor Jacques Ghestin, id., among groups of contracts, we can find the ensembles
contractaels(contractual units), which include a number ofagreements in view of a common objective, and the charne
de contrats, which are made up of several successive agreements having the same object. According to Bernard
Teyssii, an ensemble de contrats is a "circular structure" of contracts, constituting a unified whole. The various
agreements constituting it are all tied up to each other as they all have the same objective; they were all concluded
in order to carry out a single complex economic operation, namely sale, financing, services, technical assistance,
engineering and consultancy. These agreements have a common goal, in spite of the fact that each one of them has
its own object and despite the variety in their immediate cause: seeJean Nret, Le sous-contrat, L.G.D.J., Paris, 1979,
No. 210. Ensembles de contrats can be broken down into two categories: the ensembles de cuntrats iuterdipendants
(indivisible and divisible) and the ensembles de contratsh dipendance unilatirale(having a simple or a complex structure):
see Nret, ibid., No. 64, note 212, p. 56. A chafne de contrats, on the other hand, is tied up together as a consequence
of the identity of object that exists between the two or more successive agreements, which do not have a common
finality. The chafne de contrats can be divided into two categories: those which are composed of homogeneous
agreements, such as a series of successive sales having the same object, or those which are composed of
heterogeneous agreements, such as a sale of materials used by a constructor in the performance ofa contrat dentreprise
in favour of the maftre de louvrae, sold or leased or sub-leased to a third party.
I See F. CoUart-Dutilleul and Ph. Delebecque, Cotrats civils et co,,lnerciaux, Dalloz, Paris, 1991, No. 7.
12 See Nassar, op. cit., supra, footnote 3, p. 58.
13 See Collart-Dutilleul and Delebecque, op. cit., supra, footnote 11, No. 56.

MULTI-CONTRACT ARBITPRATION
I. THE CONCEPT OF INTERIRELATED AGREEMENTS
Whenever there is an economic link between contracts, ensuing from the

contracts' nature and mutual function, these agreements should not be regarded as
autonomous agreements, but should be analysed together with all the other related
contracts. However, parties may disagree about the existence of an interrelation
between such contracts: an analysis of doctrine, case-law and arbitral practice
concerning interrelated agreements shall provide, below, some guidelines as to
determining when distinct agreements should be appreciated on an overall basis.
A. DOCTRINE, CASE-LAW AND ARBITIkAL PRACTICE
The fact that the litigious obligations arise from different instruments is not a reason
in itself to refuse to admit the interrelation between the disputes. The interplay between
the obligations, as well as the context in which the parties' business relationship was
developed have to be taken into account. If the undertakings are indivisible, i.e. when
they are all integrated parts of a single transaction, the disputes regarding obligations
arising out of the various related agreements should be treated as a whole. The concept
of interrelated agreements as an instrument of legal realism, as shown below, has been
sustained by eminent scholars and judges and has been applied by arbitrators.
Accordingly a realistic attitude towards the link that exists between agreements should
be adopted, as economic considerations play a central role in modern law of contracts.
A formal attitude towards the interrelation between the obligations would be a
resistance against international trade law and contract law modern reasonings.
1. French Doctrineand the Courts' Position
(a) Doctrine
The notion of interrelated agreements or interrelated obligations (obligations
connexes in French) is grounded on the idea of a narrow link between two reciprocal
credits, such as two obligations arising from the same contractual relationship. It is based
on the investigation of the foundations and functions of the contract. Two or more
obligations are interrelated when they arise out of a synallagmatic agreement.
Interrelation is the link which joins two debts undertaken under the same legal
relationship and which allows the interplay of a set-off between these debts.' 4 This
concept has been defined in a rather flexible way for reasons of fairness and logic. It
would be unfair to force one of the parties to perform its obligation if the other party
has not performed its own. This reasoning could, for instance, be used for the
14See connexe and connexiti in VocabulaireJitridiqueAssociation Henri Capitant.

JOURNAL OF INTERNATIONAL ARBITRATION
15
application of the exceptio non adimpleti contractus principle to interrelated obligations.
It has been sustained that case-law concerning interrelation is based on the idea of right
of retention (droit de ritention), that corresponds to the legal and contractual practice of
settling an account (comptes de rdglement), as well as on the idea of interdependence, a
16
concept inherent to the notion of account (compte).
However, the concept of interrelation is not a new idea. Already, for Professor Ren&
Cassin, interrelation was a notion that could be applied to an indefinite number of
situations because of its subjective and intellectual character. This author explained how
the idea of connexuni (a logic chain reaction) contributed to the evolution of the law of
contracts. It was through this concept that a formal perception of obligations gave way to
a rather "realistic" concept of contract. 17 This view is shared by Philippe Kahn, who
considers that "the mutuality of the parties' obligations should be established on an overall
basis", and not on a contract by contract basis.18 Other authors also consider that a priori
autonomous elements of a set of contracts (ensemble contractue) should be appraised on an
overall basis. 19 In fact, concluding a business transaction either through an agreement
which includes several annexes or through a series of interrelated contracts is a practice
largely carried out by businessmen all over the world. Philippe Kahn explains that,
nowadays, even a simple sale may often require a large quantity of contractual instruments
and that these instruments must be interpreted as a whole, as they are interdependent
documents. 20 Such an interpretation is imperative when two conditions are met: if the
documents are binding towards the parties involved and if they are not contradicting
among themselves and, theoretically, form a coherent, harmonious and articulated whole.
The questions of interrelation and of determining the effects of the non-
performance of obligations arising from an agreement which is part of an ensemble
contractuelalso occur in joint-ventures. The issue of determining the legal effects of the
economic link which ties the several agreements making up the joint-venture was
commented on by Professor Claude Reymond, who explained that the non-
performance, by one of the parties, of an obligation undertaken under the protocole de
base entitles the other party to terminate it.21 Similarly, the non-performance of one of
the agreements making up the joint-venture also authorizes the suspension of the
performance of obligations undertaken under another, on the grounds of the exceptio non
adimpleti contractusprinciple and, if necessary, their termination. According to the author,
15 See Daniel Ammar's comments on the French Cour de Cassation's decision dated 8 February 1994, JCP,
1995, edition G, 11,22455, p. 256.
1, 'Justifie par la doctrine an moyen, notamment, de l'idie de drait de ritention, c'est de lapratique I4gale on
conve, iounclle, des comnptesde rdqleeit, de 'l'interdipendanceinhirente h la notion de compte', que cettejurispndece relative
h lacontexiti a tlinveite": see Ammar, ibid., p. 258.
17See R en&Cassin, De 'exception tirie de l'inexntion dans les rapports synallagmatiques et de sesrelations avec le droit
de retention, la compensation et la risohtion, thesis, Paris, 1914.
"8 Quoted by Jan Paulsson, The IcstD Klackner v. Cameroon Award: The Duties of Partners i, North-South Econoinic
Development Agreements, 1J.Int.Arb. 2,July 1984, p. 162.
19See Jacques Moury, De I'indivisibilitientre les obligations et entre les contrats, Revue trimestrielle de droit civil,
1994, p. 255.
2( See Philippe Kahn, L'interpritationdes contrats internationaux, J.D.l., 1981, pp. 15-17.
2I See Claude Reymond, Filiale coinnune et joint-venture--Quelques problinmes spicifiques, in E. Story Scientia
(ed.), Modes de rapprochement stnmatrel des entreprises, 38th Seminar, Spa Balmoral, 19-20 November 1986, pp. 76-77.

MULTI-CONTRACT ABITRATION
these agreements constitute a single unit, a group of intertwined complex contracts,

which are linked to each other, in spite of the fact that, legally, they constitute distinct
instruments. Consequently, one must take into account the reciprocity (rapport
d'change) which exists between them, an exchangeability just like that which exists
22
between obligations arising from a single contract.
(b) Case-law
French courts have made a practical application of the notion of interrelation, by

considering interdependent contracts as a single functional unit and by appraising
distinct elements of a single transaction on an overall basis. They have often admitted
the existence of interrelation whenever there were regular and reciprocal commercial
transactions, that is, whenever the concomitant purchases and sales of goods, and the
successive agreements which gave rise to these balanced exchanges, are commercially
and economically tied. 23 According to a recent decision of the Cour de cassation,
interrelation may result not only from reciprocal obligations arising from the same
contract, but also from reciprocal obligations arising from different contracts. 24 There is
interrelation between contracts whenever there is a framework contract expressly
agreed upon, and whenever the reciprocal credits arise from the application contracts,
for instance in long-term sale or distribution agreements. 25
The unity of the operation, if it is not materialized within a general framework
agreement, may arise from the relationship that ties, for example, two supply agreements
(contrats d'approvisionnement). In a decision of 9 May 1995,26 the Cour de cassation
concluded that:
"...in the absence of reciprocal obligations arising out of the same agreement, interrelation
may exist between credits and debts arising out of sales and purchases concluded in order to
perform an agreement which has defined, between the parties, the framework for the
development of their business relationship or from several agreements which constitute the
elements of a single contractual set serving as a general framework for these relationships. ' 27
According to the Cour de cassation, in rejecting the set-off on the grounds of the absence
of interrelation between the litigious debts due to the plurality of contracts and the
absence of a framework agreement, the Court of Appeal has not drawn the appropriate
legal consequences to the facts at stake because:
_2Ibid., pp. 76-77.
- "Relations cotrnerciales roulires et rciproques consistant en des achats et ventes concomnitants de inarchandises...les
conventions successives d'ot rs,ultaientces ichanges iquilibris, itaient
conrinercialementet icononiquenent lies": see Ammar,
op. cit., supra, footnote 15, p. 257.
24 Cass. corn., 5 April 1994, JCP, 1994, edition G., iv, 1551.
23 See Ammar, op. cit., supra, footnote 15, pp. 256-257.
26 See JCP, 1995, edition G, 22448, p. 237, note Jean-Pierre IMmery; JCP 1995, edition E, No.743; and
Dalloz, 1996, Jurisprudence, pp. 322-325, note Gr~goire Loiseau.
27 "A defaut d'obligations r&iproques dirivant d'un mnbrie contrat, le lien de connexiti peut existcr entre des cr~anrces et
dettes nies de ventes et achats concthis en exectition d'une convention ayant difini, entre les parties, le cadre du diveloppenient de
leurs relations d'affaires, on de phisieurs conventions constituant les Ntients d'n ensenible contractuel unique servant de cadre
gngral h ces relations. ": Dalloz, ibid., p. 322; see also Cass. coin., 12 December 1995, JCP 1996, edition G, I,
No. 3958, note G, Virassam.

"...the two supply agreements of 1 January 1991, which were implemented through the
reciprocal sales and purchases of the same animals, carried out by socifti Lapidor, were tied
to each other and constituted two parts of a single contractual set serving as a general
framework for the business relationship of the parties... ' ' 28
2. Arbitrators' Attitude
Interrelation between contracts having no formal link has also been recognized by
arbitrators. An Icc Arbitral Award, dated 2 July 1987,29 states that, although there is no
formal link between the two contracts involved, there is an evident substantive
interdependence:
"...without the materials which claimant undertook to supply, defendant was unable to
30
carry out the manufacture of the heat exchangers."
In the Kl6ckner v. Caneroon Arbitral Award, rendered on 21 October 1983,31 under

the aegis of the ICSID, through a "commercial reality" analysis, the arbitral tribunal, by
applying the law of the Republic of Cameroon, 32 considered the reciprocal obligations
as a single legal relationship despite the existence of separate and successive instruments
governing the rights and obligations of the parties.
Other examples of an "economic reality" analysis can be found in the ICSID Arbitral
Award of 23 September 1974, Holiday Inn v. Morocco, where the arbitrators applied
Moroccan law:
"It is well known, and it is being particularly shown in the present case, that investment is
accomplished by a number ofjuridical acts of all sorts. It would not be consonant either with
economic reality or with the intention of the parties to consider each of these acts in
complete isolation from the others. It is particularly important to ascertain which is the act
which is the basis of the investment and which entails as ' 33measures of execution the other
acts which have been concluded in order to carry it out."
In other cases, however, it was not possible to draw the legal consequences of the
interrelation between contracts. By reading the arbitrators' reasoning in these awards
a contrario, it is possible to determine when interrelation between arguments should be
taken into account. In Icc Award No. 6829 of 1992, in which the law of Luxemburg
was applied, the arbitral tribunal did not consider the agreements as a single legal
relationship because "both the intentions of the parties and the language of the relevant
legal instruments do not permit such an approach". 34 For this reason, the jurisdiction of
28 "Les deux contrats d'approvisionnement du lerjanvier 1991, dont les achats et ventes riproquesdes inhnies anitnanx
effectus par la soci t Lapidor itaient I'exkjtion, itaient lis entre eux et constituaient les deux volets d'un ensemble contractiel
unique servant de cadre ghnral aux relations d'affaires des parties. ": Dalloz, ibid., p. 322.
9 In Case No. 122/85-Poland, Y.C.A., 1989, pp. 187 et seq.
-"' Ibid., p. 189.
sI See Jan Paulsson, Les obligations des partenaires dans un accord de diveloppement iononmique: la sentence arbitrale
Caiiierotm v. Klackner, Revue de rarbitrage, 1984, pp. 19 et seq.
32 As the Cameroonese party had its headquarters in Eastern Cameroon, the arbitrators applied French law, as
this part of the country was based on the French Civil Code system; ibid., pp. 28 et seq.
-3 See Pierre Lalive, The First World Bank Arbitration, 51, B.Y.B.I.L., 1980, p. 159, cited by Paulsson, op. cit.,
supra, footnote 31, at p. 52.
-1 Y.C.A., 1994, p. 170.

the arbitral tribunal was confined to one contract alone. 35 This may lead us to conclude
that if the "intentions of the parties" as well as the "language of the relevant legal
instruments" do "permit", interrelated agreements should be treated on an overall basis
and arbitrators may extend their jurisdiction to connected agreements.
In an award rendered by the Chamber of National and International Arbitration of
Milan in 1992, regarding subcontracts in construction works, by applying Italian law,
the arbitrators considered the economic-legal link between contracts, ensuing from the
contracts' nature and mutual function as follows:
"...a subcontract cannot be seen as a contract derived from the main contract, but rather as
a contract with a certain autonomy, although interrelated to the original contract by an
' 36
economic and functional link which normally, however, is not juridically relevant."
According to the arbitral tribunal, interrelation between contracts and its consequences
are possible-subject, however, to certain conditions. The economic and functional
connection between the contracts is not enough. The contracts must refer to each other
in an univocal and clear manner and the link between the agreements must entail a
37
mutual dependence and interdependence.
In the situations referred to above, that is the solutions given by doctrine, judges
and arbitrators reveal a certain tendency by taking interrelation into consideration in
multi-contract situations. Thus, it may be reasonable to recognize that the above-
mentioned solutions can be considered as representative of a well-established practice
having the force of a general principle of international arbitration. Accordingly,
doctrine, case-law and arbitral awards may provide some guidelines for determining
when multi-contract situations should be treated as a whole.
B. GUIDELINES FOR DETERMINING WHEN MULTI-CONTRACT SITUATIONS SHOULD BE

TREATED AS A WHOLE
In some cases, related agreements should be considered as one business transaction

and interpreted according to their contents, regardless of the fact that the contractual
35 "It is, therefore, not for this Tribunal to pass judgment upon any other contract, however related to the
Cargo Handling Contract it may be, or upon any corporate entity other than claimant and defendant, however
close such entity might be in other respects to either claimant or defendant.": ibid., pp. 88-89.
-6 Award No. 1491, dated 20July 1992, Y.C.A., 1993, pp. 88-89.
-7 "Of course, it is possible to connect contracts in a juridically relevant manner, producing the typical
consequences as defined by case-law. This, however, requires a specific, if tacit, intention of the parties, aiming at
making the contracts 'teleologically dependent or interdependent in view of the realization of a certain interest', so
that which affects the one also affects the other. In casn, the Arbitrator considers that there has been no such
intention. The contracts refer indeed to one another, but they do not do so in an univocal and clear manner
allowing a conclusion in that sense. In particular, the reference in the dispute resolution clause aims at co-ordinating
decisions, as correctly maintained by Main contractor; it cannot jeopardize the mutual autonomy of the two
contracts. The connection between the two contracts, therefore, is only economic and functional; it does not entail
the mutual dependence and interdependence which is essential, according to case-law, for the events concerning
the one to concern the other as well.. .There is no connection [between the contracts] such as to cause the events
concerning one contract to concern the other as well. A connection, however, does exist, as mentioned above, on
the economic and functional level. This fact is not devoid of significance in the present dispute: it justifies the
conclusion reached on the impossibility to perform-in an ampler perspective than the mere interpretation of EC
provisions--and lends further strength to this interpretation.": ibid., p. 89.

relationship between the parties consists of different agreements. The business context
which gave rise to the transaction cannot be ignored. An agreement, as illustrated below,
needs to be analysed in the light of the negotiuni and of the instrumenta.
1. One Single Business Relationship (the Negotium)
It is important to take into account the commercial reality of the operation, because
sometimes the parties' reciprocal synallagmatic obligations arise not from a single
contract, but from different contracts. It should be checked whether the obligations
undertaken under the different agreements are reciprocal, having a common origin,
identical sources and an operational unit.
An example which serves to illustrate this situation is the following: two parties
(A and B) enter into four interrelated long-term agreements on the same date, i.e. the
General Agreement and three ancillary agreements-the Purchase Agreement, the
Processing Agreement and the Financing Agreement. These contracts are all tied by an
interrelation link and they make up one single business transaction regarding one single
substance, the sale and supply of a certain raw material and its processing. A undertook
to buy annually a given quantity of a certain raw material from B for a given price
under the Purchase Agreement and to process a given quantity of raw material
belonging to B under the Processing Agreement. In order to render the
purchase/processing operation possible, the parties concluded the Financing
Agreement, under which B undertook to lend A a given sum of money for the
refurbishment of its plant. This financing allowed the creation of an integrated system
of production capable of processing the quantities of raw material specified in the
Purchase and Processing Agreements.
This case involves a sole bilateral relationship, because the two instruments at stake,
the Processing Agreement and the Purchase Agreement, together with the other two
instruments, the General Agreement and the Financing Agreement, are bound together
by a close connecting factor: agreement was reached for the financing, by B, of the
refurbishment of a processing plant, in return for the payment, by A, of a given price
for the purchase and processing B's raw material. The obligations were assumed for the
accomplishment of a single goal, and are thus interdependent. It is important to search
for the parties' intent at the moment of the conclusion of the agreements. Whenever
the signature of one or more agreements is the reason that leads the parties to sign
another agreement or agreements, it can be considered that there is a link between
them. It seems logical to conclude that disputes arising out of these agreements should
be treated together. B would not have lent A money for the refurbishing of the
processing plant if A had not undertaken to pay the agreed price to purchase and to
process B's raw material for the full life of the investment. The payment of the agreed
price on the Purchase Agreement was thus the essential condition (the cause impulsive et
diterminante) to the investment regarding the Financing Agreement. Therefore, if the

MULTI-CONTRACT ARBITIATION
performance of two of the four agreements gives rise simultaneously to disputes, these
disputes should be treated together.
When the agreements make up one single business transaction, the interplay
between the undertakings cannot be ignored, as there exists within the contractual
context a kind of freedom of circulation of obligations and interrelated debts. Whenever
obligations were undertaken for the accomplishment of a single goal and are
economically interdependent, the different disputes should be appreciated on an overall
basis.
2. The Contractual Instruments (the Instrumenta)
Indications of the interrelation between agreements may be found not only in the
"spirit" of the business transaction, but also in the instrumenta, that is, in the wording of
the agreements.
Agreements may be considered to be interrelated when they were concluded on
the same date, for the same duration, for the same purpose. Another indication of the
interrelation between contracts is the presence of a general-or a master, a cover, a basic
or a head-agreement outlining the obligations undertaken by the parties, obligations
which are usually discussed in more detail in the ancillary agreements. General
agreements often contain a preamble describing the transaction and the interrelation
between the different agreements. In this case, the interdependence between a general
agreement and its ancillary agreements is evident, especially when the general agreement
expressly refers to each one of the ancillary agreements and each one of the ancillary
agreements expressly refers to the general agreement and to the other ancillary
agreements. Interrelation also exists in the context of framework and application
38
agreements.
In the presence of unifying contractual mechanisms contained in the different
agreements, there is reasonably no room for doubt about the fact that these agreements
have no independent existence without each other. For instance, the following clauses
appearing in a general agreement regarding the supply of a raw material and its
processing should be viewed as evidence of the interrelation between three
agreements-the General Agreement, the Purchase Agreement and the Processing
Agreement:
"1. Each party represents and warrants to carry out fully and diligently its undertakings
according to this Processing Agreement as well as according to the Purchase Agreement.
Any failure of each party to fulfill its undertaking according to any of the Agreements
referred to above will also be considered as a breach of the engagement subject-matter of
the other."
The following clauses appearing in the Processing Agreement also demonstrate the
unity of the operation:
. See Sayag, op. cit., supra, footnote 8, No. 181.

JOURNAL OF INTEKNATIONAL ARBITRATION
"1. The dispositions dealing with force majettre as defined in Article X of the General
Agreement shall apply to this Processing Agreement.
2. The dispositions dealing with 'stoppage' as defined in Article Y of the General
Agreement shall apply to this Processing Agreement.
3. The dispositions of Article Z of the General Agreement shall apply to this Processing
Agreement."
There is interrelation between contracts in the presence of a "stoppage"
mechanism according to which a declaration of "stoppage" by either of the parties has
a direct and immediate effect on the validity and/or continued performance of another,
or other, agreements, despite the fact that the economic circumstances which are a
precondition of a "stoppage" declaration arise mainly under an activity which concerns
only one of the agreements.
A stipulation concerning the simultaneous performance of the parties'
synallagmatic obligations under the different agreements is also evidence of
interrelation. The following clause appearing in the General Agreement can illustrate
this intention:
"The parties acknowledge that the execution and performance of this General Agreement
and of each of the Agreements is part of a general deal agreed between them and that, unless
otherwise specifically provided for in each of the Agreements, it is the intent of the parties
that the Agreements be performed simultaneously..."
If it were stipulated that the Agreements must be performed simultaneously, one may
reasonably think that, in case of simultaneous disputes, the intent of the parties was to
have them settled simultaneously.
Contractual relationships are not "limited to the corners of the written document,
but are equally defined by factual, external circumstances". 39 Actually, the interrelation
between agreements should be reflected in the proceedings; multi-contract situations call
for the application of the rule ofjoinder whenever there are interrelated disputes at stake.
11. THE RULE OF JOINDER
Joinder is a procedural rule based upon a fundamental principle-the good

administration ofjustice. The aims are:
- to securejustice between the parties, by avoiding conflicting decisions for related
issues, such as may occur in separate proceedings;
- to serve procedural efficiency; and
- to save time and costs, namely by co-ordinating the taking of evidence.
Consolidation of parallel proceedings prevents extensive or complicated issues which
are interrelated from being appraised separately. By having all the necessary issues before
it, the court in a consolidated proceeding is likely to reach a more complete
19See Nassar's comments on the "relational contextual theory", op. tit., supra, footnote 3, pp. 58 et seq.

understanding of the facts in dispute so as to render a decision. The risk of factual errors
should actually decrease in consolidated proceedings, as different tribunals may reach
different conclusions based on the same evidence because they can arrive at different
conclusions of fact. Judging intertwined issues separately may cause great and irreparable
injustice under certain circumstances. For this reason, joining parallel actions contributes
to bringing considerable efficiency and unity to the proceedings and also avoids the risk
of conflicting decisions.
The rule ofjoinder is part of several legal systems and, as shown below, is applied
to litigation as well as to arbitration.
A. JOINDER, OF PARALLEL COURT PROCEEDINGS
The rule ofjoinder is a well-accepted principle in several countries. The purpose

here is not to make a complete report on the solutions adopted in the different laws and
case-laws regarding the question ofjoinder, but only to provide an example of how this
principle has been implemented in litigation. For this reason, the study will be limited
to a brief analysis ofjoinder under French law. In France, there are two possible ways
of obtaining joinder of related civil actions: through the rule of joinder set forth by
Article 367 of the French New Code of Civil Procedure (the New Code); and through
the exception de connexiti provided by Articles 101 et seq. of the New Code.
1. The Rule ofJoinder Set Forth by Article 367
Article 367 of the New Code allows consolidation of civil actions that involve
related issues. According to this text, a court may-either at the parties' request or
ex officio-order the joinder of pending proceedings introduced before it, for the sake of
good administration of justice, whenever there exists between the issues such a link
requiring that they be examined and ruled together. 40
According to Article 368 of the New Code, a decision regarding the joinder of
proceedings constitutes an administrative measure not subject to appeal. The application
of the rule of joinder requires compliance with two conditions: there must be
connexity; and the proceedings to be consolidated must be pending before the same
court. Whereas the second condition does not present a priori any major difficulty, the
meaning of connexity is open to doubt. As the notion of connexity does not rely on any
precise criterion, judges have discretionary powers to appreciate when it occurs. 41 In
fact, French courts may order the joinder of several proceedings, even in the absence of
-9 Like French courts, English and American courts are also empowered to order consolidation of related legal
actions. Order 4, Rule 10, of the Rules of the English Supreme Court: see Dennis Thompson, The Same Tribunal
for Different Arbitrations, 4 J.Int.Arb. 2, June 1987, pp. 111-112; and Rule 42(a) of the American Federal Rules of
Civil Procedure: see Julie C. Chiu, Consolidation of Arbitral Proceedings and International Comnercial Arbitration,
7 J.Int.Arb. 2, June 1990, p. 64, note 44, also provide for the joinder of civil proceedings.
41 See Cass. civ. lMre, 20 October 1987,JCP, 1987, edition G, iv, p. 400; CA Dijon, 25 January 1990, Gazette
du Palais, 1991, 2, somm., p. 323.

identity of object and cause, whenever there exists between the disputes such a link
requiring, for the sake of the good administration ofjustice, that they be settled together
42
through a single decision.
2. The Exception de Connexit6 Provided by Articles 101 et seq.
(a) French domestic law
The exception de connexit (plea of connexity) is a procedural rule which applies

whenever two equally competent courts have jurisdiction over two issues, which are
different but so interrelated that the good administration ofjustice commands that they
43
be examined and ruled together.
According to Article 101 of the New Code, one of these courts may be requested
to decline jurisdiction and to transfer the case to the other competent court. Judges have
discretionary powers to decide whether to accept or refuse this request. However, there
are two exceptions to this freedom of choice: whenever the referred courts are not of
the same degree; 44 and whenever one of the referred courts has exclusive jurisdiction
over the issue. 45 The judge requested to decline jurisdiction has two options:
- he may decide to decline his own jurisdiction and to refer the case to the other
court-thus, there is consolidation of the cases before that court; or
- he may reject the request. In this case, he rules immediately on the merits, and
the cases are not consolidated.
The exception de connexiti cannot be raised by the judge ex officio; however, it may be
raised by the parties at any moment of the proceedings, and not necessarily in limine litis,
46
before any defence on the merits or plea in bar.
(b) French private internationallaw

47
French courts rule that the exception de connexit also applies to international issues.
In French private international law, as well as in French domestic law, being the second
court to which the issue was referred is not a requirement for a court to decline
jurisdiction. Either the first or the second court, confronted with the question of
48
exception de connexiti, is free to decline or not its own jurisdiction.
The Brussels Convention of 1968 on the Recognition and Enforcement of Foreign
Judgments, which is part of the French legal system, provides for a different solution.
42 CA Reims, 3 October 1991,Juris-Data No. 051520, mentioned by Paul Laroche de RoussaneJonction et

disjonction d'instances, Jurisclasseur-Fonuilairede Prociddres, September 1995, No. 29.
4- See LoTc Cadiet, DroitJudiciaire Pt'vi, Litec, Paris, 1992, No. 632.
44 Article 102 of French New Code of Civil Procedure.
4s Cir.2dne, 12 October 1978, Bull. I, No. 162, in Cadiet, op. cit., supra, footnote 43, No. 631, note 64.
46 Ibid., No. 633.
47 See a decision of the French Cour de Cassation dated 10 March 1969, mentioned by Cadiet, ibid., No. 635,
footnote 69.
48 Ibid., No. 635.

Article 22, § 3 of the Convention defines connexity as a situation where legal actions
are so interrelated that they shall be examined and judged simultaneously, in order to
avoid contradicting decisions. The second court to which the issue is referred may either
stay the proceedings, ex officio or at the parties' request, while awaiting the decision of
the first court to which the issue has been referred, or decline its own jurisdiction at the
parties' request. This second hypothesis is subject to two conditions: consolidation of
interrelated issues shall be possible under the law of this court; and the first court shall
have jursidiction over both issues-in order to avoid a denial ofjustice for the second
issue. Under the Brussels Convention, the exception de connexiti can only take place in
situations involving courts of the first instance, a solution which differs from the one set
49
forth by French domestic and international rules.
Although related civil actions may be joined in the situations described above,
under the New Code no rule expressly authorizes the application of these provisions in
order to consolidate arbitral proceedings. However, unlike France, some systems have
an organized consolidation mechanism for arbitration.
B. SPECIFIC PROVISIONS IEGARDING AlBITR.ATION
A comparative study demonstrates that most national legislations do not organize

joinder for parallel arbitrations. But there are a few exceptions: in some systems
consolidation is provided for by a specific text; and in certain countries judges have
played a major role in the implementation of consolidation.
1. Treaties, Rules and Laws
Consolidation has been contemplated in some Treaties. Article 1126 of the North
American Free Trade Agreement (NAFTA-between Canada, Mexico and the United
States) allows a total or partial consolidation of arbitral requests concerning foreign
investments subject to Article 1120 of this Treaty whenever the different requests have
a question of law or fact in common. In this case, a special tribunal shall be constituted,
composed of three members appointed by the Secretary-General of the ICSID. It shall
apply the UNCITRAL procedural rules and shall have jurisdiction over the issues that it
considers should be consolidated.50
Consolidation has also been provided for in some rules, namely the American
Arbitration Association Insurance Rules of the State of New York, which provide for
the consolidation of arbitrations regarding the same accident and concerning related
facts.51 The Arbitration Rules of the World Intellectual Property Organization
49 Ibid., No. 636.

s0 See Naon, op. cit., supra, footnote 1, p. 700 and Cheri D. Eklund, A Primeron the Arbitration of NAFTA Chapter
Eleven hiwestor-State Disputes, 11 J.Int.Arb. 4, December 1994, pp. 149 and 163.
-' 11 NYCRR, S 65.16(c)(7)(iii), mentioned by Gerald Aksen, Les arbitraqes multipartitesaux Erats Unis, Revue
de I'Arbitrage, 1981, p. 102.

Arbitration Centre also allow third parties to be joined into proceedings under certain
52
conditions.
Only a few countries have enacted legislative provisions regarding consolidation.
As explained by Emmanuel Gaillard, the solutions provided for by legislators can be
divided in two categories, "false" and "real" legislative solutions. 53 Some legislations,
namely the arbitration law of British Columbia5 4 and the International Arbitration Act
of Florida, 55 are considered to be "false" legislative solutions because, although they
provide for consolidation, they condition its implementation to the consent of all the
parties. In other words, these "false" solutions are closer to consensual rather than to
legislative consolidation. "Real" legislative solutions, on the other hand, allow the
courts to compel consolidation as they are based on the intervention of the lawmaker
and not only on the will of the parties. In 1982, Hong Kong issued a new Arbitration
Act which provides for judicially ordered consolidation in its Article 6B.56 Article 1046
of the Dutch Arbitration Act contains specific provisions on consolidation of related
arbitrations, which can be ordered by the President of the District Court in
Amsterdam.5 7 The Argentine draft is another example of court-ordered consolidation
implemented by the legislator. 58 The states of California5 9 and Massachussets 60 in the
United States have also adopted a legislative approach regarding consolidation.
This new trend may demonstrate that it is desirable to have the legislator provide
the solution to the procedural problem of related arbitrations. 61 However, European
countries have adopted a rather standstill position regarding consolidation of arbitral
proceedings. 62 According to V.V. Veeder, the Netherlands "may remain the fashionable
63
exception rather than the rule".
There are countries which seem reluctant to adopt the consolidation solution.
Most countries of the European Union are way behind the United States and Eastern
52 See Naon, op. cit., supra, footnote 1, p. 695.

53 See Gaillard, op cit., supra, footnote 2, pp. 481 et seq.
54 Ibid., p. 482.
-5 Ibid., p. 483.
36 See Neil Kaplan and Tony Bunch, in International Handbook on Commercial Arbitration, Suppl. 15,
August 1993, p. 10; and Jan Paulsson, La rifonne de la Ioi de l'arbitrage de Honq Kong, Revue de 'arbitrage, 1984,
pp. 325-331.
57 See A.J. Van den Berg, in International Handbook on Commercial Arbitration, Suppl. 7, April 1987, p. 20;
and in Revue de l'arbitrage, 1988, pp. 536-541 ;Jan C. Schultsz, Les Nounelles dispositions de la lgislation nierlandaise
en ,,atiire d'arbitraqe, Revue de l'arbitrage, 1988, pp. 209-222; and Gaillard, op. cit., supra, footnote 2, pp. 486-487.
5 Article 25 of the Argentine Draft permits court-ordered consolidation of two or more arbitral proceedings
whenever there ismanifest convenience. In fact, it is important to note that the text of Article 25 does not mention
any requirement regarding the fact that the consolidated arbitrations be subject to the same arbitration institution
or to the same rules: see Naon, op. cit., supra, footnote 1, p. 700.
39 Paragraph 1281.3 of the California Civil Procedure Code permits consolidation of separate arbitration
proceedings under certain circumstances: see Aksen, op. cir., supra, footnote 51, p. 101; and Chiu, op. cit., supra,
footnote 40, p. 65.
61 See Aksen, id.
6-1As mentioned by Howard Miller, "Consolidated arbitration now has spread to three continents. It appears
to be a fashion whose time has come.": see Veeder, op. cit., supra, footnote 5, p. 264.
I" Ibid., p. 264.
63 Id.

European countries such as Poland, 64 Bulgaria and Hungary, as far as rules regarding
multi-party arbitrations are concerned. 65 It is rather astonishing to find that the
procedural difficulties raised by complex arbitrations have not been solved by the texts
enacted in France, England and Switzerland.
The powers given to French courts to control the conduct of international
arbitrations are contained in .Articles 1492 et seq. of the New Code, in which no
mention is made of any power to consolidate. As explained by Emmanuel Gaillard,
although French law could be "amended by adopting a provision equivalent to Article
1046 of the Dutch Code of Practice-which itself borrowed much from French law",
under French arbitration law, it is only the will of the parties that can prevent the
difficulties inherent in multi-party arbitration. 66 The situation is the same in some other
countries, such as England and Switzerland. In England, for example, despite strong
support for legislation enabling the courts to order consolidation of arbitrations arising
out of the same events, this solution has not been incorporated in the draft Bill which
is expected to be enacted in 1996.67
Court intervention naturally depends on the applicable legislation. However, in
some countries, the absence of specific rules has not prevented judges from joining or
co-ordinating parallel arbitral proceedings.
2. Case-Law
In countries where there are no specific provisions regarding consolidation in
arbitration, joining parallel proceedings is usually impossible, unless all parties agree.
68
However, in the United States, some courts have compelled consolidation stricto sensu
by liberally construing arbitration legislation and the rules of civil procedure. In other
countries, courts have not gone as far as American judges, but have ordered de facto
consolidation. 69
(a) Consolidation stricto sensu
In the United States, consolidation of parallel arbitrations by the courts was

developed by case-law. The courts have played a major role, basing their decisions on
laws, rules or on the intent of the parties. Case-law is generally very daring, especially
regarding maritime arbitration; U.S. courts have ordered consolidation, sometimes
1- See Jerzy Jakubowsky, L'arbirraqeinternational dans les litiqes commerdaux nultilatraux-l'exprieicepolonaise,

Revue de l'arbitrage, 1981, pp. 78 et seq.
"- See Pierre Bellet, Le Symposium hiternationalde Varsovie sur I'arbitraeinternational dans les lir qes coninerdaix
inultilatiraux, Revue de I'arbitrage, 1981, p. 51.

1'6See E. Gaillard, L'affaire Sofidifou les difiadrts de l'arbitrage nauliparrite. Revue de l'arbitrage, 1987, p. 275.
67 According to the Article 35(b)(2) of the new Draft English Arbitration Bill, "Unless the parties agree to
confer such power on the tribunal, the tribunal has no power to order consolidation of proceedings or concurrent
hearings."
MiThat is, to put together related proceedings by consolidating them into one single arbitral panel.
6" That is, to co-ordinate or hannonize parallel proceedings by appointing the same arbitrators in the parallel
proceedings or by establishing some kind of link between the parallel proceedings.

changing the agreement of the parties, sometimes changing the methods of designating
arbitrators.
Until 1993, U.S. federal courts were favourable to consolidating interrelated
arbitral proceedings. 7 0Despite the split among the courts as to whether consolidation of
arbitrations should be ordered in the absence of specific agreement to that effect, until
1993 the trend of judicial decisions was to allow consolidation. Most courts justified
their position by the necessity of avoiding conflicting results, saving time and expenses,
as well as on their "inherent power to consolidate disputes", based on the theory that
the power to enforce an agreement to arbitrate includes the authority to control the
method of enforcement such as consolidation. U.S. courts used to consider that, if the
parties do not desire consolidation, it is up to them to mention it expressly. In other
words, in the absence of express provision to this regard, the consent to consolidation
was presumed. 71 The Southern District Court of New York and the Second Circuit
Court of Appeal played leading roles in the development of case-law regarding
consolidation in arbitration by ordering consolidation even if the arbitration agreements
of the parties did not provide for consolidated proceedings, based on their liberal
72
interpretation of the Federal Arbitration Act and the Federal Rules of Civil Procedure.
However, this favourable position towards consolidation seems to have been
abandoned by the U.S federal courts since 1993. As a matter of fact, in a recent decision,
it was ruled that consolidation of arbitral proceedings cannot be ordered, unless there is
73
express or implied agreement among all the parties involved.
In France, the primacy of the will of the parties seems to put strict limits on any
kind of judicial intervention regarding consolidation. It has been sustained that, in
litigation, joinder of several proceedings does not present any major difficulty, since the
determination of the court and the designation of the judges are specifically provided
for by mandatory rules of procedure and by principles ofjudicial administration, which
exclude the will of the parties. In arbitration, however, in the absence of a legislative
solution, court-ordered consolidation seems rather difficult, as it gives priority to the
will of the parties since this will is the basis for the powers of the arbitrators. 74 Article
1444 of the New Code allows French courts to rule on difficulties regarding the
7o See Compania Espafiola de Petroleos S.A. v. Nerens Shipping, 527 F 2d. 966 (2d Cir. 1975), in Naon, op. cit.,
supra, footnote 1, p. 700.
71 See Gerald Aksen, in a paper presented at the International Arbitration Symposium in Warsaw in 1980,
quoted by Thompson, op. cit., supra, footnote 40, p. 114, note 1.
72 For more information regarding court-ordered consolidation of arbitrations in the United States, see
William M. Barron, Court-OrderedConsolidation of Arbitration Proceedings in the United States, 4 J.Int.Arb. 1, March
1987, pp. 81-86; DavidJ. Branson and Richard E. WallaceJr., Court-OrderedConsolidatedArbitrations in the United
States: Recent Authority Assures Parties tie Choice, 5 J.Int.Arb. 1, March 1988, pp. 89-94; and Chiu, op. cit., supra,
footnote 40, pp. 62 et seq.
73 See Government of the United Kingdom of Great Britain v. Boeing Co., 998 F 2d. 68 (2d Cir. 1993) 187, Harvard
Law Review, 1993, pp. 499-504, mentioned by Naon, op. cit., supra, footnote 1, p. 700; North River his. Co. v.
PhiladelphiaReinsurance Corp., 856 F Supp. 850 (SDNY 1994) mentioned in Fouchard et al., op. cit., supta, footnote 1,
No. 521, note 228, p. 320; see also Richard E. Wallace Jr., Consolidated Arbitration in the United States-Recent
Authority Requires Consent of the Parties, 10J.lnt.Arb. 4, December 1993, pp. 5-17.
74 See G6rard Pluyette's comments regarding Arbitration and Third-Parties, Revue de I'arbitrage, 1988, p. 536.

constitution of the arbitral tribunal, but it does not empower judges to decide against
75
what was stipulated in the arbitration agreement.
The following considerations can be made, however, concerning ad hoc
arbitrations. French procedural law can apply whenever the arbitration takes place in
France, or if the parties have agreed on the application of the French procedural rules.
In these two cases, French courts have jurisdiction over difficulties regarding the
constitution of the arbitral tribunal, according to Article 1493 of the New Code. French
courts have interpreted this Article rather widely. Accordingly, judges may rule on any
moment in the "life" of the arbitral tribunal, that is during its constitution and even
after. 76 For an arbitration taking place in France, Article 1493 could be applied as giving
power to the judge to consolidate two ad hoc arbitral proceedings since the issue of
consolidation is a question that may affect the constitution of the arbitral tribunal.
No country has gone as far as the United States; in most countries, the possibility
of consolidating proceedings depends on the parties' consent. But there are other
possible remedies to the difficulties raised by multi-contract situations.
(b) De facto consolidation
Consolidation is not the only way of dealing with the problem of related
arbitrations. For instance, the London Court of Appeal avoided the risk of contradicting
awards by appointing the same arbitrator in two parallel proceedings in order to obtain
a defacto consolidation or the harmonization of such proceedings.
In Abu Dhabi v. Eastern Bechtel, 77 the parties referred to the Court the question of
whether separate arbitrators or the same arbitrator should be appointed for two
arbitrations. Lord Denning held that the Court had power, under Section 10 of the
Arbitration Act 1950, to appoint the same arbitrator to both arbitrations:
"It seems to me that there is ample power in the Court to appoint in each arbitration the
same arbitrator. It seems to me highly desirable that it should be done so as to avoid
inconsistent findings. On the other hand, it is equally desirable that it should be done so that
neither party should feel that any issue has been decided against them beforehand or without
their having an opportunity of being heard in the case. It seems to me that the solution
which was suggested in the course of the argument should be adopted, namely that the same
arbitrator should be appointed in both arbitrations: but, at an early stage, he should have
what may be called a 'pre-trial conference' with all the parties in the two arbitrations."
In Hong Kong, by virtue of the Arbitration Ordinance of 1982, courts can order
not only consolidation ofproceedings but also that two arbitrations be "heard together",
which means that the cases should be heard by the arbitrators at the same time. In this
73 See Pierre Bellet, Revue de 'arbitrage, 1987, p. 69. For the application of Article 1444 of the French New
Code of Civil Procedure to international arbitration, see Fouchard et al., op. cit., stopra, footnote 1, No. 833.
76 See Fouchard et al., ibid., No. 856 et seq.
77 Decision rendered by the London Court of Appeal on 23 June 1982, Lloyds Law Report, 1982, Vol. 2, part 5,
p. 425; see also J. Paulsson's comments in Revue de l'arbitrage, 1983, pp. 119-130; and Gaillard, op. cit., supra,
footnote 2, pp. 489 et seq. Although this case involves a multi-party arbitration, the London Court of Appeal's
reasoning can be applied, afortiori,to two-party arbitrations.
Copyright 0 2007 by Kluwer Law International. All rights reserved.

case there are separate awards and not one award affecting all parties. Under Section 6B
of the Ordinance, the court also has the power to order that one arbitration be heard
immediately after another or to order that one or more arbitrations be stayed until after
78
the determination of one or more other arbitrations.
In France, it does not seem possible forjudges to order defacto consolidation, at least
for multi-party arbitration. An analysis of French case-law demonstrates that French
courts are very careful about not modifying the will of the parties.7 9 However, it should
be noted that ordering de facto consolidation in parallel bi-party ad hoc arbitrations
regarding a multi-contract situation does not seem to go against this philosophy.
The above-mentioned legislations and decisions, which provide for court-ordered
consolidation of arbitral proceedings, have been criticized-mainly on the grounds of
violation of the parties' autonomy. But, in fact, this limitation upon the parties' freedom
to contract can be justified for several reasons, which will be discussed below.
III. DESIRABILITY OF CONSOLIDATING PARLALLEL PROCEEDINGS IN INTERNATIONAL

AiuITIRATION
An analysis of whether the joinder rule can be and should be applied to arbitration
must take into account the specificity of arbitration, especially its contractual nature. If
we refer to multi-party arbitration on numerous occasions, it is because, as mentioned
earlier, most of the literature dealing with complex arbitrations is based solely on multi-
party arbitrations and does not make any distinction regarding bi-party arbitrations.
However, these two hypotheses, although presenting some similarities, are very
different in several aspects. It will be demonstrated that, whereas the advantages of
consolidating multi-party arbitrations can be applied to bi-party arbitrations, its
disadvantages do not occur in the context of bi-party arbitrations.
A. ADVANTAGES
There are at least two strong reasons to join parallel arbitral proceedings: resolving
all the related disputes in one single proceeding is desirable because it greatly contributes
to saving time and money and it avoids the risk of inconsistent awards.
1. Saving Time and Money
Whenever disputes arise from the same facts or from related facts, consolidation
greatly contributes to saving time and money.8( The constitution of a single arbitral
tribunal with jurisdiction over the issues of the two or more parallel disputes will have
78 Veeder, op. cit., supra, footnote 5, pp. 262-266; Howard S. Miller, Consolidation in Hong Kong: the Shui On
Case, Arbitration International, 1987, pp. 87-90.
79 See Gaillard, op. cit., supra, footnote 66, pp. 275-291; see also Gaillard, op. cit., supra, footnote 2. p. 490.
101See V.V. Veeder, Multi-PartyDisputes: Consolidation Under English Law: The Vinteira-A Sad Forensic Fable,
Arbitration International, 1986, p. 319.

MULTI-CONTRACT AIRBITRATION
a direct impact on decreasing the arbitral costs, as joinder will avoid the constitution of
unnecessary tribunals and will thus reduce arbitral fees. The costs regarding the
presentation of evidence will also be reduced, as witness and expert testimonies will be
brought before a single tribunal; consolidation thus contributes to avoiding the
unnecessary costs of a double presentation of evidence.
2. Prevention of Inconsistent Awards
Consolidation of arbitral proceedings contributes to the good administration of

justice8 l and avoids contradiction in the settlement of related disputes.8 2 It has been
sustained that it is inadmissible to have contradicting decisions regarding interrelated
disputes; as this may result in actual denial ofjustice.8 3 The splitting of complex disputes
leaves the door open to inconsistent decisions and to injustice.8 4 Reducing or avoiding
problems which may arise from inconsistent or contradicting awards is a question of the
greatest importance, especially with regard to countries which have ratified the 1958
New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards or countries which have national legislation containing similar enforcement
provisions. Judicial review-of arbitral awards in these countries is usually limited to a
simple control, that is essentially a procedural regularity test. Inconsistent awards may
give rise to serious problems at the enforcement stage, especially because they cannot be
reconciled by courts examining their merits or their reasoning. But this idea is not
incontestable. It has been sustained that the form in which arbitral awards are often
drafted, i.e. as monetary damages, renders their enforcement impossible only very rarely,
even when they are inconsistent.85 However, this reasoning ignores specific
perrormance difficulties and further does not take into account the evils of the
enforcement of conflicting awards which, even when possible, may give rise to
inequitable situations.8 6 This kind of unjust result is not desirable and may weaken
87
confidence in the process of arbitration.
According to V.V. Veeder (commenting on the Hong Kong Arbitration Ordinance
of 1982), the practical advantage of an order for formal consolidation is that the
arbitrator can then make interlocutory orders affecting all parties to the consolidated
arbitration. The arbitrator could also make one award affecting all parties, and not
"I See Fritz Nicklisch, Multi-Party Arbitration--Typical Multi-Party Disputes and Civil Court Proceedings,
International Construction Law Review, 1995, p. 425.
12 See H. van Houtte, The Rights of Defence in Multi-PartyArbitration, International Construction Law Review,
1989, p. 398.
8- See President Bellet's comments on the Setec decision rendered by the Tribunal de Grande histance de Paris
sitting in Chambers on 13 January 1986, in Bellet, op. cit., supra, footnote 75, p. 68.
84 For multi-party arbitration, see Gaillard, who affirmed that "by contemplating the classic examples of
construction law or of contrats en chafne, one can appraise the risks of incoherences which arise from the lack of
articulation in the settlement of disputes which may arise from complex contractual arrangements.": op. cit., supra,
footnote 2, p. 480.
85 See Ulf Franke's (Secretary-General of the Scc Arbitration Centre in Stockholm) interview on 20 March
1989 byJulie C. Chiu, mentioned in the latter's article, op. cit., supra, footnote 40, p. 56.
816See Chiu, ibid., at p. 56.
87 Id.

separate awards in each arbitration. 88 As explained by the author, the court in the Second
Shui On case ordered consolidation of the two arbitrations on the grounds that "it
increased the power of the sole arbitrator and facilitated the better disposal of the issues
between the three parties".8 9
All the advantages mentioned above regarding the consolidation of multi-party
arbitration should, of course, apply afortiorito bi-party arbitrations.
B. DISADVANTAGES
Much has been written about the disadvantages of consolidating parallel arbitral
proceedings in the context of multi-party arbitration. However, as will be discussed
below, these criticisms are not necessarily relevant to parallel multi-contract arbitrations
involving two parties only.
The main argument put forward is the fact that the element of compulsory court
control in the arbitration process is inconsistent with the consensual aspect of
arbitration, which is one of its fundamental features. Consolidation of multi-party
arbitral proceedings has also been held to be unworkable. The arguments raised against
consolidation include: unforeseen changes in the selection of arbitrators; problems
regarding the constitution of the arbitral tribunal; depriving a party from judicial access;
unfair apportionment of fees; and enforcement difficulties.
However, these problems, inherent in the very nature of multi-party disputes, do
not exist in the context of two-party arbitration, as the relationship remains bipolar
despite the existence of several agreements. An analysis of the disadvantages of
consolidation in multi-party arbitration and its comparison with two-party situations
shows that there is no disadvantage to consolidation in the latter case.
1. Inconsistency with the Parties' Consent
One of the reasons raised against the consolidation of arbitral proceedings is the fact
that arbitration is a contractual method of settling disputes, and consolidation may come
up against difficulties regarding different interpretations of the ratione materiae and ratione
personae of the parties' consent.
The contractual aspect of arbitration inhibits legislators and judges from applying
the joinder rule to arbitration. In most countries, the law and the courts have not
stepped in to enforce consolidation of related arbitral proceedings because it is believed
that this would be an infringement of the rights of the parties to have their disputes
settled in private, in the way they wish. 90 This is also the reason why arbitration
institutions are rather reluctant to join parallel proceedings.
It is therefore convenient to analyse the scope of the parties' consent in the light
88 See Veeder, op. cit., supra, footnote 5, pp. 262-263.

89 Ibid., p. 264.
,' See Thompson, op. cit., supra, footnote 40, p. 111.

MULTI-CONTRACT ARLBITRATION
of: the intervention of third parties; problems regarding confidentiality; and the absence
of provisions regarding consolidation.
(a) Intervention of third parties
A major obstacle to consolidation in multi-party arbitration is the incompatibility

between the contractual nature of arbitration and the intervention of third parties. 91
This situation may give rise to difficulties because the voluntary or requested
intervention of third parties requires the agreement of all the parties, and the third party
involved must give its own consent to participate in the arbitration.
In a two-party arbitration there is no incompatibility between the theory of the
autonomy of will and consolidation. Whereas the application of the theory of groups of
contracts or contractual units (ensembles contractuels) to multi-party disputes is
questionable, as a contract cannot have any affect beyond its own parties, 92 the
application of this theory to two-party disputes does not seem to encounter any major
difficulty. In addition, the problems regarding the obtention of all parties' consent as to
the intervention of third parties in the proceedings as well as the third parties' consent
are not present.
(b) Questions regarding confidentiality
The confidential character of arbitration is often viewed as a good reason not to

consolidate multi-party arbitration. 93 A compulsory procedure may violate the secrecy
of the arbitral process chosen by the parties. Although a consolidated proceeding can be
structured to protect confidentiality by restricting a party's access to information that is
not relevant to its case and limiting subsequent use of such information, violation of
privacy is one of the strongest arguments that has been raised against consolidation. It is
sometimes difficult to combine the intervention of third parties with the respect of
privacy and trade secrets. A contractor, for example, may not wish to reveal certain
financial data to other parties.
In bi-party arbitration, as there is no third party involved, there is no confidentiality
problem; thus, it should not be open to a party to object, on the grounds of
confidentiality, to the joinder of two parallel proceedings involving only two parties.
91 See footnotes 2 and 3, supra.

92 For French law, see ajudgment by the Assemblieplinikre de la Courde Cassation ofl2July 1991, Daloz, 1991,
Jurisprudence, p. 549, and the decision of the Commercial Section of the Cour de cassation dated 28 May 1996,
which ruled that the indivisibility of two contracts concluded by different contracting parties has the following
consequence: the termination of one results in the termination of the other: Dalloz Affaires, 1996, No. 28,
Chroniques, p. 872. For a new approach of the res inter alios acta rule, as expressed in Article 1165 of the French
Civil Code, see Mireille Bacache-Gibeili, La relariviti des conventions et lesgroupes de contrats, L.G.D.J., Paris, 1996.
9-1See Nicklisch, op. dt., supra, footnote 81, p. 427; J. Paulsson and N. Rawding, Les alias de la confidentialiti,
The Icc International Court of Arbitration Bulletin, May 1994, p. 49; Michael Collins, Privacy and Confidentiality
in Arbitration Proceedinqs, Arbitration International, 1995, pp. 321-336; and Hans Smit, Confidentiality in Arbitration,
Arbitration International, 1995, pp. 337-340.

(c) Absence of provisions regarding consolidation

It has been argued that the absence, in the arbitration clause, of provisions regarding
the consolidation of multi-party arbitration should be interpreted as a choice by the
parties for having arbitration limited to the parties tied by the agreements which contain
the arbitration clause. 94 This argument is based on the idea that arbitration is consensual,
and disputes are ruled according to the procedure chosen by the parties. For this reason,
the parties' consent should prevail over considerations of saving time and money. It has
been sustained that compulsory consolidation without the consent of the parties
involved actually reflects the court's will rather than that of the parties. 95 This
interpretation of the parties' consent seems, however, rather simplistic, as it does not
take into account the contractual practice and also does not search for the real intention
of the parties.
In practice, parties do not pay much attention to--and, in any case, do not go into
great detail while negotiating-arbitration clauses. They often refer to the model
arbitration clauses recommended by the major international arbitration institutions,
which are based on the traditional two-party model and do not contemplate the
possibility of multi-party disputes. Accordingly, the absence of consolidation provisions
cannot be interpreted as the parties' voluntary preference for not having related disputes
settled in one proceeding, but it only means that the parties did not consider the
96
matter.
It is not always correct to interpret the will of the parties exclusively from the
wording of the arbitration clause. It is also important to take into account the intention
of the parties, the reason why they decided to submit disputes to arbitration. An
agreement to arbitrate is based on one fundamental concern-avoiding the delays,
formalities and technical complications of national courts and choosing instead the
quick, fair, final and complete solution, of a system better adapted to business reality,
which is capable of handling any disagreement in a businesslike manner, at the lowest
possible cost.97 However, this does not mean that the parties have given up on national
rights and remedies. If the parties have chosen arbitration in order to bypass the
inconveniences of national courts, on the one hand, on the other, they cannot disregard
all aspects of legal proceedings, as they depend on national courts for enforcement of
arbitral agreements and awards. The argument according to which consolidation
violates the parties' consent is thus unjustified. It seems rather hard to believe that a
solution such as this, which contributes to the accomplishment of consistent results by
94 See Chiu, op. cit., supra, footnote 40, p. 57.

9. See Dominique Hascher, Consolidation of Arbitration by American Courts: Fostering or Hampering International
Conmmercial Arbitration? I J.Int.Arb. 2,July 1984, pp. 133-134.
'11'See Stipanowich, quoted in Chiu's article, op. cit., supra, footnote 40, p. 57, note 17.
' See Annual Report, Committee on Arbitration, Chamber of Commerce of the State of New York, 2 May
1929, p. 7, quoted by Chiu, ibid., p. 57.

MULTI-CONTRACT AlBITRATION
avoiding conflicting decisions, does not correspond to the intention or to the will of the
partiesY8
2. Difficulties Regarding the Constitution of the Arbitral Tribunal
Consolidation has been held to affect a party's right to appoint an arbitrator

enjoying its confidence. 99 Many arbitration clauses provide for an arbitral tribunal
composed of three arbitrators, each party having the right to choose an arbitrator, with
the third arbitrator chosen either by the first two, by the parties or by the elected
arbitration institution. Consolidation of multi-party arbitration may thus give rise to
difficulties, as it becomes rather impracticable to let each of the parties choose a different
arbitrator. It may become very complicated to increase the number of arbitrators
indefinitely in order to respect each party's desire to appoint an arbitrator. A large
number of arbitrators may not only increase the expenses incurred in the arbitration but
also give rise to scheduling problems, a situation which may seriously affect the
effectiveness of the proceedings.I' ° For this reason, in multi-party arbitration, it is often
necessary to change the original provisions regarding the appointment of the arbitral
tribunal in order to avoid an indefinite increase in the number of arbitrators.
Consequently, consolidation may, according to the number of parties, eliminate
the right for each party to choose a different arbitrator, a right which is considered by
the French Cour de Cassation as a fundamental right and by many authors as one of the
main advantages of arbitration.""1
In fact, the importance of the right for each party to appoint a different arbitrator
has been largely discussed. But regardless of the importance for this right, the difficulty
does not arise in two-party arbitrations concerning multi-contracts as the parties do not,
in principle, lose their right, each to appoint a different arbitrator.
3. Depriving a Party ofJudicial Access

In multi-party arbitration, consolidation may affect the substantive rights of a party.
The compulsory intervention of third parties may infringe a party's right to initiate legal
proceedings. By submitting, to the same arbitration, parties which had not concluded
arbitration agreements directly with each other, consolidation may deprive a party of
98 According to Chiu, ibid., p. 58, court-ordered compulsory consolidation is based on the parties' intention
of having a "speedy and fair resolution of their disputes" and shall be interpreted as a "judicial modification of
contracts" which did not mention all the details concerning procedure.
' Ibid., pp. 58-59, and Nicklisch, op. cit., supra, footnote 81, p. 427.
, See Chiu, op. cit., supra, footnote 40, p. 60.
See the Dutco decision, rendered by the First Civil Section of the French Cour de Cassation on 7January
1992, commented by Pierre Bellet, Revue de l'arbitrage, 1992, pp. 470-482; Charles Jarrosson, J.D.I., 1992,
pp. 707-736; Eric Schwartz, Multi-party Arbitration and the Icc-In the Wake of Dutco, l0 J.Int.Arb. 3, September
1993, pp. 5-19; Christopher R. Seppala and Daniel Gogek, Multi-party Arbitration under Icc Rules, International
Construction Law Review, 1990, pp. 358-363; Christopher R. Seppala, French Supreite Court Niulifies Icc Practice
for Appointment of Arbitrators in Multi-Party Arbitration Cases, International Construction Law Review, 1993,
pp. 222-227.

judicial access. For example, in a consolidated three-party arbitration (among A, B, C),

A may file a claim against C, with whom A had not entered into an arbitration
10 2
agreement. This infringes C's rights to file legal proceedings against A.
This difficulty does not exist in two-party arbitration. Consolidation does not
deprive parties of judicial access, as an arbitration agreement was concluded directly
between the parties concerned.
4. Unjust Apportionment of Fees
Another objection to consolidation in multi-party arbitration is the apportionment

of fees, as there is no generalized formula in this respect. Sometimes, when there is
consolidation of parallel proceedings, a party may actually be required to pay more than
10 3
it would have to pay, had separate proceedings been held.
This problem does not arise in two-party arbitration, as arbitral costs are usually
either assessed equally between the parties or the losing party must pay the costs of the
other party.
5. Enforcement Difficulties
Another point which has been raised against court-ordered consolidation in multi-
party arbitration, and which can also be raised against bi-party arbitration, involves
enforcement difficulties. Although the New York Convention does not expressly forbid
the enforcement of an award rendered by a tribunal in consolidated proceedings, it has
been argued that, in some situations, a party can resist the enforcement of an award
which embodies court-ordered consolidation of multi-party arbitrations on the ground
of Article v(1)(d) of the Convention. 1° 4 This conclusion is based essentially on two
ideas: that an agreement on the place of arbitration is not necessarily an agreement as to
the applicability of the arbitration law of the place of arbitration; and that, in case the
parties have not themselves agreed on the application of the law of a country which
admits consolidation, a modification of the arbitral tribunal caused by court-ordered
consolidation would violate the parties' agreement on the composition of the
05
tribunal.1
However, another part of the doctrine offers a different opinion about this question
and considers that an award which results from a judicially ordered consolidation of
related arbitrations does not fall under Article v(1)(d) of the New York Convention
because an agreement on the place of arbitration implies a choice for the applicability of
the arbitration law of that place. For this reason, if the arbitration law of the place of
arbitration provides for consolidation, consolidation ordered by a court of that
102 See Chiu, op. cit., supra, footnote 40, p. 59.
10. Ibid., p. 61.
104See SigvardJarvin, ConsolidatedArbitrations,the New York Arbitration Convention and the Dutch ArbitrationAct
1986-A Critique of Dr Van Den Berg, Arbitration International, July 1987, pp. 254-257.
'us Id.

jurisdiction is likely to prevail over the parties' agreed method for appointing arbitrators
6
and conducting arbitral proceedings."1
The New York Convention does not impose the recognition of the decision of
consolidation. 17 Accordingly:
"...the judge who will rule on the enforcement of the award will appraise, without being
bound by the decision taken by the judge of the place of arbitration, whether the scope of
the jurisdiction of the08
arbitral tribunal that has rendered the award is in compliance with the
will of the parties."'
However, in a case where the place of arbitration was not chosen by the parties
themselves,"' 9 it seems likely that the enforcingjudge will consider that the award is not
in compliance with the will of the parties.110
Is it desirable to consolidate parallel arbitral proceedings? Is it convenient to
incorporate national joinder rules into the existing practice of international arbitration?
From this analysis of principles, rules, doctrine, case-law and arbitral practice, it can be
concluded that there is no major incompatibility between the rule ofjoinder and multi-
contract situations between two parties. Only a formal interpretation of the theory of
consent would lead to the non-application of this procedural rule, which, in the opinion
of this author, perfectly meets the necessities ofboth international business and contract law.
Although it is generally agreed that consolidation is desirable, no perfect multi-
party consolidation system has ever been devised. Proposals for consolidation regarding
multi-party arbitration have been considered to be unworkable and have not been able
to respond to most of the arguments raised against them. It should be noted, however,
that, in two-party arbitration, consolidation is not only desirable but also practical and
workable. It is thus possible to conclude that the advantages of consolidation outweigh
its disadvantages. Accordingly, consolidation is an alternative that must be seriously
considered by parties, lawyers, arbitrators and arbitration institutions, as well as by
legislators and judges, as a possible solution for the difficulties raised by multi-contract
situations involving two parties only. The rule ofjoinder, as applied by national courts
in litigation, can be transposed to bi-party arbitration regarding multi-contract situations
since consistent results are just as important in arbitration as they are in litigation. Its
advantages may lead one to the conclusion that consolidation is preferable to the
alternative of holding multiple proceedings, as it eliminates the risk of inconsistent
awards for related disputes.
The desirability of consolidation of connected arbitrations is significant; non-
016See AJ. Van Den Berg, Consolidated Arbitrations and the 1958 New York Arbitration Convention, Arbitration
International, October 1986, pp. 367-369; and Consolidated Arbitrations, the New York Arbitration Convention and the
Dutch Arbitration Act 1986-A Replique to MrJarvin,Arbitration International, July 1987, pp. 257-262.
107Sec Gaillard, op. cit., supra, footnote 2, p. 488.
108 Id.
t"I This means that there was no consent of the parties themselves regarding the choice of a legal system
admitting consolidation.
M'See Gaillard, op. cit., supra, footnote 2, p. 4 8 8 .

consolidation may have irreparable and irreversible consequences on the merits. One of
the conclusions reached at the Warsaw Symposium was that justice itself, and not only
the arbitral process, is at stake in the absence of provisions regarding multi-party
arbitration."' The purpose of arbitration is not achieved if the award is eventually
reversed or cannot be enforced. Whereas arbitration is meant to settle disputes,
contradicting awards only create additional ones.
Arbitrators, arbitration institutions and national courts should be empowered to
carry out measures which are necessary for rationalizing the proceedings. The principle
of sanctity of contracts should thus be tempered by the requirements of the good
administration ofjustice. As rightfully observed by Nagla Nassar, who commented on
Icc Award 5294 of 1989:112
"...this decision, and others to the same effect, demonstrates a shift toward the contextual
approach. No longer are jurisdiction and applicable law clauses the exclusive domain of the
parties' will;
113
they also must be understood and applied in light of the parties' relationship as
a whole."''
If, on the one hand, it is generally agreed that consolidation is desirable, on the
other hand, there are some doubts about the best way to implement this principle. The
following Section will examine how multi-contract situations are dealt with in
international arbitration practice.
PART Two: Multi-Contracts in InternationalArbitration Practice
Part of the French doctrine considers that it is inadmissible to have different decisions
for interrelated disputes" 4 and thus, theoretically, the best way to avoid this kind of
problem is for the claimant to introduce a single arbitration and to submit all disputes to a
single arbitral tribunal. In the case where more than one arbitration has been introduced,
the ideal solution is to put together all the disputes subject to the different arbitrations, by
consolidating them before a single panel.11 5 This can be called consolidation stricto sensu.
Judicial, institutional and conventional consolidation of interrelated arbitral
proceedings is, however, only one possible answer to the questions raised by complex
arbitrations. There are also other ways of dealing with parallel arbitral proceedings in
order to avoid inconsistent results. Actually, there are two other possibilities, which can
be called defacto consolidation: whenever the constitution of a single arbitral panel is not
possible, some authors recommend the designation of the same arbitrator or arbitrators
I See Pierre Bellet, op. cit., supra, footnote 65, p. 65.

112 Y.C.A., 1989, p. 137.
11.1 See Nassar, op. cit., supra, footnote 3, pp. 60-61.
114 See President Bellet's comments on the SETEC decision regarding multi-party arbitration and connexity
between a garantie and a demande principale: Paris, Tribunal de Grande Instance, 13 January 1986, supra, footnote 75,
p. 68.
11-5This can be done by the intervention, at the beginning of the proceedings, of the arbitration institution
designated by the parties, if any, or by national courts. The latter hypothesis, that is, court-ordered consolidation
can only be performed in some countries, namely Hong Kong and the Netherlands: see Part One, Sections u.B.1
and ii.B.2(a).

MULTI-CONTRACT ARLBITRATION
in the parallel proceedings 1 6 or some kind of co-ordination between the different

arbitral tribunals which deal with the related disputes.' 17
Imagine, for example, a situation where A and B-no third party is involved-have
concluded two contracts concerning two different aspects of the realization of the same
transaction, each contract containing its own arbitration clause. As a consequence of the
difficulties arising out of the performance of the two agreements, A, as claimant,
requests two separate arbitrations, each on the basis of each of the arbitration clauses. B
contests these double proceedings on the basis of the interrelation between the
agreements. According to B, in spite of the presence of several agreements, there is only
one single contractual relationship between the parties, and for this reason all disputes
arising thereof should be settled before a single arbitral tribunal. Is it possible to
consolidate the two parallel proceedings?
An analysis of different national and institutional rules reveals that, whenever
parties expressly provide for or preclude consolidation in their arbitration clauses, there
is no problem regarding the joinder of parallel proceedings (Section l). Judges,
arbitrators and arbitration institutions will abide by an express agreement on
consolidation between the parties. The difficulty persists only over the question of
determining whether consolidation may be ordered when there is no express provision
on this issue. In the absence of express agreement, consolidation will depend on the
arbitration institution chosen by the parties, if any (Section ll).118 However, as most
arbitration institutions have not yet found an efficient solution in this regard, arbitrators
are confronted with the difficulties of non-consolidated proceedings. As arbitrators do
not have the power to consolidate in the absence of the parties' consent, they have to
find alternative solutions to consolidation. In practice, arbitrators usually deal with
multi-contract situations by ruling on the scope of their jurisdiction over disputes arising
out of related contracts (Section III).
A study is undertaken below of the solutions given by these three categories of
actors in international arbitration, to the problems of parallel arbitral proceedings
regarding complex contractual relationships. This analysis includes not only
consolidation stricto sensu, i.e. joinder, but also de facto consolidation, meaning other
solutions which may be used as substitutes or equivalents to consolidation.
I. CONSOLIDATION AGREED BY THE PARTIES
The parties play a major role in implementing consolidation, as it is they who sign
the arbitration clauses, and as the text of the arbitration clause depends on them. It is up
116 If the parties do not reach an agreement in this respect, it is necessary to resort to the appointing authority
chosen by the parties, namely an arbitral institution such as the Icc or another institution chosen by virtue of the
UNCITAL Rules or a national court. This duty may become very difficult when one of the parties contests the
alleged interrelation between the different arbitral proceedings: see Bellet, op. cit., supra, footnote 75, p. 70.
117 Id.
118 Of course, the solution will also depend on the applicable procedural law as well as on the law and case-
law of the place of arbitration: see Part One, Sections i.B.1 and ii.B.2(a).

to the parties to include provisions regarding the constitution of a single arbitral tribunal
or the consolidation of related proceedings. However, if the parties have not provided
for this in the arbitration clause, an alternative solution for a party desiring a joint
appreciation of the issues is for that party to designate the same arbitrator in the parallel
proceedings.
A. THE PARTIES' ROLE IN DRAFTING THE ARBITRATION CLAUSE
In order to avoid inconsistent solutions, it is desirable that the parties expressly

provide, in the arbitration clauses of the interrelated agreements, for the same arbitral
tribunal to rule on the interrelated disputes. In this respect, it is convenient for the first
agreement to set forth that the parties have to introduce, in the subsequent agreements,
a clause obliging them to participate in the arbitration regarding the first agreement.119
It is important to set up a contractual mechanism which would ensure that, once a party
has requested arbitration, any and all disputes regarding the multi-contract situation at
stake will be submitted to that arbitration. This will avoid a multi-proceeding
arbitration, as the parties are barred from initiating additional arbitrations.
If the parties have decided not to provide for the same arbitral tribunal to rule on
the interrelated disputes, another solution is to provide forjoinder of the separate arbitral
proceedings in the arbitration agreement. This would contribute to overcoming all the
objections raised against consolidation. Consolidation by consent is of course the ideal
solution for complex arbitrations. Some authors consider that consent is the only basis
for consolidation in arbitration and that joinder can only work if it is based on the
express will of the parties. 120 As has been mentioned:
"...the scarcity and the aleatory character of the compulsory consolidation proceedings lead
to the conclusion that the insertion by the parties of appropriate clauses at the moment of
the drafting of their agreements remains-and will remain-the privileged way of solving
the difficulties of multi-party arbitration."121
It is true, however, that this literature deals with multi-party arbitration. Therefore, a
strict interpretation of the parties' consent principle does not necessarily apply to two-
party arbitration.
Other scholars, nonetheless, consider that the reasoning according to which
consent is the only basis for consolidation does not take into account the actual
difficulties involved in drafting a consolidation clause, 122 namely:
119See Bellet's comments regarding multi-party arbitration, op. cit., supra, footnote 75, p. 68.
131See Bernini, op. cit., supra, footnote 2, p. 293.
121See Gaillard, op. cit., supra, footnote 2, p. 493.
122In a multi-party clause, these difficulties are: the uncertainty of knowing in advance the number and
identity of the parties which may be involved in a dispute, which may make it difficult to detenine a satisfactory
method of selecting the arbitral tribunal plus the difficulty in distinguishing whether two-party arbitration is
sufficient and when other parties' participation may also be needed. But these difficulties do not occur in two-party
disputes. In the context of two-party arbitrations, it is easy for parties to include some reference to consolidation in
their multi-contracts, as all the concerned parties are sitting around the same table and all have the necessary
elements in their hands.

(i) the difficulty of drafting model consolidation clauses of general applicability;

(ii) the fact that arbitral clauses are rarely negotiated, as parties tend to have little
knowledge about joinder;
(iii) the fact that parties often have different bargaining powers; usually one of the
parties dictates many of the terms of the contract. 123
Accordingly, it seems simpler to consolidate whenever the parties draw up a
consolidation clause, refer to the same arbitration institution and provide for the same
method of designating arbitrators.
In the absence of national and institutional rules regarding consolidation, parties
should remain very attentive to deciding, at the moment of the drafting of their
agreements, whether or not they wish to have consolidation of related disputes. 124
Although it is not always possible to foresee what disputes may arise between the parties
at the moment of the signing of the agreements, it is often quite predictable that disputes
are likely to involve at least two of the agreements concluded by the parties, since a
dispute regarding one of the agreements may affect the performance of the second one
and therefore give rise to a second dispute. Whenever the relationship involves a
multiplicity of contracts, the parties and their counsels should presume that multi-
contract disputes are common and should consequently consider including a
consolidation clause.
Reference to consolidation in the arbitration clause is very important, 125 especially
because, after a dispute has arisen, the parties are less likely to reach any agreement, as
"strategic considerations may thus influence the decision of whether to consent to
consolidation when the original agreement did not so require." 126
In the absence of specific provisions in the arbitration clause, it is nevertheless
possible to obtain defacto consolidation.
B. DESIGNATING THE SAME ARBITRATORS IN PARALLEL PROCEEDINGS
If there is no express provision for consolidation under the existing arbitration

agreements, one has to keep in mind that there are several legal and practical
opportunities available to the parties. The lack of provisions for consolidation of
arbitration proceedings should not cause a party that is searching for the benefits of
consolidated arbitration to give up all hope. The facts of a specific case play a major role
in convincing the court about a party's implicit agreement to consolidation:
123See Chiu, op. cit., supra, foomote 40, pp. 70-72; and Morera, L'arbitrageinternationalet les
nouvellesfonties de
d&entralisation industrielle, quoted by Bellet, op. cit., supra, footnote 65, p. 55.
124Parties may wish to include anti-consolidation clauses in their agreements: see Gaillard, op. cit., supra,
footnote 2, p. 493.
125According to Dennis Thompson, "the contractual theory of arbitration inhibits the authorities from
providing for consolidation in many countries. Consolidation, however, may be necessary to secure justice between
the parties, and many parties would be well advised to agree to consolidated arbitration proceedings, even though
such a refusal may seem to confer upon them a temporary advantage", op. cit., supra, footnote 40, p. 120.
126See Chiu, op. cit., supra, footnote 40, p. 71.

"...depending on the facts of a specific case, one should not overlook the127possible argument
that the recalcitrant party has implicitly consented to joint arbitration."
Harmonizing parallel proceedings, namely through the choice of the same
arbitrators, is very practical and may allow a common taking of evidence or even a
consolidation of the different proceedings. 128 The question of determining whether a
party is allowed to appoint the same arbitrator, in a series of connected cases regarding
the same question or similar questions, was analysed by Judge Bola Ajibola, 129 according
to whom the appointment of the same arbitrator in parallel multi-party arbitrations is
important for two reasons.1 30 Firstly, whenever the issues at stake are either linked or
identical in substance, it seems logical that an arbitrator who is familiar with the facts
may act quickly, especially regarding questions of procedure or administration of
evidence. For this author, celerity and efficiency are among the major concerns of a
party who has agreed to arbitration.' 3' Secondly, a common arbitrator will ensure the
coherence between the conclusions reached by the different panels. Although
arbitrators are not tied to a previous award, whenever cases are identical in terms of
merits, it seems reasonable to expect that the different awards be based on the same
grounds 132 and that, when the solution of a dispute submitted to a panel of arbitrators
depends on the solution given by another arbitral tribunal, the former arbitrators should
consider themselves as bound by the latter's decision.
Where the parties do not reach an agreement on consolidation or if they do not
designate the same arbitrators in the parallel proceedings, it should be possible to obtain
either consolidation or an equivalent solution, by the intervention of an arbitration
institution. In fact, as stated by V.V. Veeder:
"...the problems of multi-party disputes are too many and complex to be left entirely to the
continuous ad hoc consent of the parties and the arbitrators;
1 33
and.. .a mixed consensual and
statutory solution could provide the best of both worlds."'
II. CONSOLIDATION AND ARBITRATION INSTITUTIONS
It has been argued that only institutional intervention may remedy a lack of
agreement between the parties.134 In this respect, arbitration institutions have a
fundamental role to play, which includes elaborating standard clauses and arbitral rules,
designating arbitrators in case of disagreement between the parties, and making the
procedure efficient by:
127 Barron, op. cit., supra, footnote 72, p. 86.
See Bellet, op. cit., supra, footnote 75, p. 57; and FinalReport on Multi-PartyArbitration, Approved by the Icc
12_,
Commoission of lnternationalArbitration, Working Party havingJean-Louis Delvolvi as Chainnan, The Icc International
Court of Arbitration Bulletin, May 1995, p. 36, No. 76 et seq.
129FormerJudge at the International Court ofJustice.
1311See B. Ajibola, Les recours contre l'arbitre pendant laprocedure arbitrale, The Icc International Court of
Arbitration Bulletin-Le statut de l'arbitre, December 1995, pp. 116 et seq.
1-1Ibid., p. 116.
132 Ibid., pp. 116-117.
13-See Veeder, op. cit., supra, footnote 80, p. 321.
134See Pierre Bellet, op. cit., supra, footnote 65, pp. 58-59.

- assuring a common taking of evidence;

- harmonizing the parallel proceedings; and
- ensuring that the different awards are rendered on the same date. 135
Consolidation greatly reduces the risk of factual errors, as in consolidated
proceedings the arbitrators are likely to reach a more complete understanding of the
facts and issues in dispute. Based on this idea, arbitration institutions should thus play a
very active role, encouraging consolidation in appropriate cases. Surprisingly enough,
the procedural rules of most arbitration institutions do not set forth a consolidation
system entitling them to order compulsory consolidation in the presence of interrelated
issues. Whereas the UNCITRAL and AAA Rules do not contain any provision regarding
consolidation, in the Arbitration Rules of the London Court of International
Arbitration as well as of the Icc, consolidation has been expressly provided for.
Article 13.1(c) of the LCIA Arbitration Rules only permits third parties to be joined
in the proceedings with their consent,1 36 but there is no provision regarding joinder of
related proceedings. A very interesting provision regarding multiple requests for
arbitration is contained in Article 16.1 of the Arbitration Rules of the Chamber of
Commerce and Industry of Geneva (CcIG), which reads as follows:
"If an arbitration is initiated between parties already involved in another arbitration
governed by these Rules, the CCIG may assign the second case to the arbitral tribunal
appointed to decide the first case, in which case the parties shall be deemed to have waived
their right to select an arbitrator in the second case."
Under Icc arbitration, consolidation is possible, even if it is apparently not usually
practised. Although the Icc has not, to date, elaborated any model clause dealing
specifically with the question of consolidation in bilateral multi-contract situations, the
Icc International Court of Arbitration can contribute not only to the realization of
consolidation stnicto sensu, but also to the obtention of defacto consolidation. However,
one may wonder whether these two possible interventions by the Icc Court of
Arbitration are sufficient to ensure its role, which is to preserve the good administration
ofjustice.
A. JOINDER UNDER ICC RULES
In Icc arbitration, parallel proceedings can be grouped into a single arbitration

before one tribunal whenever stipulated in the arbitration clause or whenever agreed by
the parties at a later stage. However, joinder can also be obtained, in spite of a
disagreement between the parties, as long as the requirements set forth by Article 13 of
135 Ibid., p. 59.

136"13.1 Unless the parties at any time agree otherwise, and subject to any mandatory limitations of any
applicable law, the Tribunal shall have the power, on the application of any party or of its own motion, but in either
case only after giving the parties a proper opportunity to state their views, to... (c) allow other parties to be joined
in the arbitration with their express consent, and make a single final award determining all disputes between them."

JOURNAL OF INTERNATIONAL AlBITR1ATION
Appendix ii to the Icc Court of Arbitration's Internal Rules are met. According to this
text, entitled "Joinder of claims in arbitration proceedings":
"...when a party presents a Request for Arbitration in connection with a legal relationship
already submitted to arbitration proceedings by the same parties and pending before the
Court of Arbitration, the Court may decide to include that claim in the existing
proceedings, subject to the provisions of Article 16 of the Icc Rules of Arbitration."
Joinder can thus be obtained whenever certain requirements regarding the merits
and the procedure are met.
1. Conditions Regarding the Merits

As explained by the Working Party on Multi-Party Arbitration established by the
Icc Commission on International Arbitration, the Icc International Court of
Arbitration shall join the proceedings whenever the conditions set forth by Article 13
are met, that is, identity of the parties and a single legal relationship. 137 Although the
requirement regarding identity of the parties does not present any major problem in the
context of two-party arbitration, difficulties may arise as to:
- the interpretation of the notion of "a legal relationship";
- whether the application of Article 13 requires the parties' consent to
consolidation; and
- the scope of the parties' consent.
In these three cases, the interpretation of the real intent of the parties is of capital
importance.
(a) The concept of "a legal relationship"
Does the condition concerning "a legal relationship" mean one single formal
contract, or does it take into account the transaction (negotium) between the parties,
irrespective of the multiplicity of the instruments (instrumenta), i.e. the existence of
various formal contractual documents? As demonstrated above, case-law, doctrine and
arbitral practice on interrelated contracts lead one to believe that "a legal relationship"
cannot be confined to a formal interpretation of such contracts. Accordingly, joinder
may be ordered by the Icc Court in spite of the multiplicity of contracts, whenever
138
there is interrelation.
(b) The parties' consent to joinder
In theory, joinder can be ordered even if not all the parties agree, since a unanimous
agreement is not a requirement forjoinder:
137 See Final Report on Multi-Party Arbitration, op. cit., supra, footnote 128, p. 35, Nos. 66 et seq.
I See Part One, Section I.

MULTI-CONTRACT ARBITIRATION
"Provided the conditions of Article 13 of the International

139
Rules are fulfilled, then in theory
the consent of all the parties is not necessary."'
Joinder is an administrative measure which can be ordered by the Icc International
Court of Arbitration when both the parties and the legal relationship are identical,
irrespective of the parties' consent. Article 13 may be compared to the court-ordered
joinder of civil actions, namely to the provision, mentioned above, of Article 367 of the
French New Code of Civil Procedure--according to which joinder may be ordered by
a court ex officio, and there is no possible appeal against this decision.
However, although it has powers to consolidate parallel proceedings, in
practice the International Court of Arbitration usually seems to be very reluctant to
order the joinder of arbitral proceedings. According to the Working Party, the
Court does not take the initiative of joining the parallel proceedings unless it is
asked to do so by a party. Practically, consolidation is ordered only when there is
consent. 141 This attitude on the part of the Court does not seem to give a satisfactory
solution to the hypothetical problem which may arise if only one of the parties
wishes to have related arbitrations-regarding disputes arising out of the same legal
relationship-consolidated into a single panel. One may wonder whether, and to
what extent, conditioning consolidation to consent does not open the door to abuse
and to the risk of denial of justice. After all, it should be considered that by
submitting their disputes to arbitration under the Icc Rules, the parties have agreed
beforehand to joinder as set forth by Article 13.141 What happens if the Icc Court
of Arbitration does not order the joinder requested by one of the parties? Where
the Court's refusal, regarding the joinder, leads to inconsistent awards, 142 it would
seem justifiable to consider that the party who had requested consolidation and
warned the Court of the risk of contradicting awards would be entitled to sue the
Icc before the competent national courts on the grounds of its contractual duty to
ensure that the parties have a fair trial, 4 3 in order to claim damages for the prejudice
suffered, if any.
In order to determine whether there is consent to joinder, it is worth analysing
the intent of the parties at the moment of the conclusion of their contractual
relationship. In this respect, it is convenient to determine the scope of the parties'
consent.
(c) Detemnination of the scope of the parties' consent

The Icc Court of Arbitration should be able to find an answer to the question of
determining whether contracts are interrelated by searching for the intent of the parties
139See Final Report on Multi-Party Arbitration, op. cit., supra, footnote 128, p. 35, No. 70.
14(,Ibid., p. 35, No. 70.
141 See Naon, op. cit., supra, footnote 1,p. 700.
142 Namely two contradicting awards that annul each other, thus resulting in a denial ofjustice.
143 For the duties and responsibilities of the Icc in case of fault or negligence in the organization and in the
administration of the arbitration, see Fouchard et al., op. it.,supra, footnote 1,No. 992, p. 570.

at the moment of their conclusion. This can be done by analysing the facts, the parties'
contractual practice and their behaviour in the performance of their obligations. An
appraisal of the contractual form adopted by the parties, as well as that of the arbitration
clauses contained in the different instruments, may also provide some indication as to
the scope of the parties' consent to joinder. In this respect, the following should be
analysed:
(i) a general (or cover, basic, master, main, head, etc.) agreement accompanied by
ancillary agreements;
(ii) a framework agreement followed by successive application agreements;
(iii) successive or simultaneous contracts, concluded between the same parties,
contributing to the performance of the same operation, in the absence of a
general or a framework agreement.
(i) A general agreement with ancillary agreements
Major international operations give rise to the conclusion, between two parties,
of a general (or cover, main, master, basic, head, etc.) agreement accompanied by a
multiplicity of ancillary agreements, for instance, a sales agreement, a financing
agreement and a services agreement, as already mentioned. The presence of a general
agreement in a multi-contract situation may be an indication of the parties' intention
to have the different contracts treated as a single agreement. It may be that the general
agreement as well as the ancillary agreements contain an arbitration clause. Two
situations should be distinguished here: when all arbitration clauses are identical; and
when the arbitration clauses are different.
The arbitrationclauses are identical
Even when the parties have textually reproduced the same arbitration clause in
each of the contracts involved in the performance of the same operation, a difficulty
may occur. The parties may disagree over the question of whether a single arbitral
tribunal shall be constituted in order to settle all disputes which may arise from these
contracts, or whether the number of arbitral tribunals shall correspond to the number
of arbitral clauses. As far as multi-contract situations involving two parties are
concerned, it seems reasonable that the intention of the parties was to consider the
different agreements as one unified and indivisible transaction, and this is the reason why
the arbitration clause was repeated, in identical terms, in each one of the agreements.
This is the position adopted by doctrine. Jacques El-Hakim, commenting on
independent agreements having the same object and identical arbitration clauses, is of
the opinion that "in spite of the independence of the various agreements, the unity of
object and of the arbitration clause might lead to submitting them to a single

MULTI-CONTRACT AlBITIRATION
arbitration".144 This view is also shared by Ph. Fouchard, E. Gaillard and B. Goldman,
who think that:
"...as a general rule, one may believe that by reproducing in identical terms an arbitration
clause in different interrelated''14contracts,
5
the parties intended to submit the whole operation
to a single arbitral tribunal...
Similar reasoning can be found in Icc Arbitral Award No. 5989 of 1989.146
Actually, this case did not involve the application of Article 13 by the Icc Court of
Arbitration, but the recognition by an arbitral tribunal of its jurisdiction over a
connected agreement. The arbitrators' reasoning could be adopted by the Icc Court of
Arbitration: the repetition of an identical arbitral clause in different agreements should
be interpreted as the parties' clear intent to avoid the separation of disputes arising
simultaneously from two or more of the different contracts, and therefore the parties'
will to conduct unified arbitral proceedings relating to these disputes. Nothing could be
clearer from the language and spirit of the agreements. One may consider that, by doing
so, the parties wanted to make sure that any dispute arising out of different agreements
would be settled simultaneously. If the arbitrators considered that they have jurisdiction
over connected agreements, there is no reason why the Court of Arbitration should not
admit, ex officio or if it is required to do so, the interrelation between the various
contracts and consolidate the parallel proceedings under the same circumstances.
Accordingly, whenever all the arbitration clauses are identical in terms of
contents-in spite of differences regarding their wording---there is no room for doubt;
consolidation is possible since it seems to be in compliance with the intention of the
parties.
This conclusion can also be applied when only the general agreement contains an
arbitration clause, whereas the ancillary agreements do not, 147 and when the claimant
requests two parallel arbitrations, each on the basis of one of the ancillary agreements.
144 See Jacques El Hakim, 'iiges commerciaux multilatiraux dans lecadre de projets au Moyen Orient, Revue de
l'arbitrage, 1981, p. 91.
143See Fouchard et al., op. cit., supra, footnote 1, No. 521, p. 318.
1416"It is beyond doubt that the parties intended to have their disputes settled by arbitration, that both the
arbitration clauses and the parties are identical and that the claims are interrelated in such a manner that in the
context of an international arbitration we must find that their joint examination-apart from allowing a better
understanding of the facts of the case--is admissible in the light of the intention of the parties, as expressed in the
arbitration clause. In fact, the Purchase Contract has been concluded 'in application of Article 4.3 of the Basic
Agreement' and it refers in regard to the price of the purchase, to Annex B 3 of the Basic Agreement. Thus,
contrary to what employer B contends, the mere fact that a new arbitration clause has been included does not show
the unequivocal intention of the parties to rule out the arbitral procedure provided for in the Basic Agreement. On
the contrary, the Purchase Contract falls squarely within the contractual provisions of the Basic Agreement... Since
the two clauses overlap perfectly, the arbitral tribunal finds that the contractor's request to have the disputes heard
in one arbitration procedure is admissible. It also finds that it has jurisdiction in the Icc arbitration over all disputes
between the parties, also those arising under the Purchase Contract.": Icc Award No. 5989, YC.A., 1990,
pp. 77-78.
147This situation is very similar to the one known as arbitration clause by reference: see B.Oppetit, La clause
arbitrale par reference, Revue de l'arbitrage, 1990, pp. 551-569. According to this author, considering the principles
which govern arbitration clauses, there is no problem apriori regarding the validity of an arbitration clause appearing
in a document annexed to the main agreement, even if the latter does not make any reference to the existence of
such a clause, as long as this agreement is part of the parties' professional relationship and as long as the arbitration
clause is in compliance with the legitimate expectation of the parties.", p. 559.

JOURNAL OF INTERNATIONAL AIBITIATION
In this case, the Court may consolidate the parallel proceedings because joinder is in
compliance with the intent of the parties. The claimant's double proceeding strategy
does not seem to be justified. It cannot be seriously sustained that the ancillary
agreements have an independent existence from each other. By introducing two parallel
arbitrations on the basis of the same arbitration clause, the one contained in the general
agreement, 14R the claimant has admitted not only the link between the ancillary
agreements and the general agreement but also the unity of the operation.
If the parties had intended to have disputes arising out of the different ancillary
agreements treated separately, what possible logic could there be in stipulating an
arbitration clause in the general agreement? What kind of dispute could then fall under
the scope of the general agreement's arbitration clause? If the parties' intent was to have
disputes arising out of the different ancillary agreements treated separately, they would
probably not have concluded a general agreement.
The duty of the Court is to look for the intent of the parties, according to objective
elements. The presence of an arbitration clause in the general agreement is indeed an
objective element which should be deemed as demonstrating the intention of having
the entire transaction treated as a whole. It seems logical enough that the ancillary
agreements should be interpreted according to the general agreement. In practice,
whenever there is a dispute regarding the business operation, it usually concerns the
ancillary agreements and only indirectly involves the general agreement. A general
agreement is not self-sufficient, since it only outlines the main terms of the parties'
obligations, which are better defined in the ancillary agreements. Therefore, there seems
to be consent to consolidation.
According to Fouchard, Gaillard and Goldman, whenever a main contract (contrat
de base) contains an arbitration clause to which all the other contracts involved in the
same operation refer, this situation:
"...does not present any difficulty. The intention of the parties is clear: they have chosen to
submit all disputes which may arise from the contractual whole (ensemble contractue) to
arbitration and they have chosen to submit all disputes to one single arbitral tribunal, which
shall be constituted according to the49stipulations contained in the contract which provides
the basis for the whole operation."'
The arbitration clauses are different
If the arbitration clauses have different contents, consolidation of the parallel

proceedings may lead to some difficulties. In some cases, different agreements
concluded in the context of the same operation may contain arbitration clauses naming
different arbitration institutions, 150 or to a different seat of arbitration, or to a different
number of arbitrators, or to the same arbitration institution but to different seats of
148In the absence of express contractual provisions contrary to it, the arbitration clause contained in the general
agreement applies to the ancillary agreements by virtue of the interrelation between them.
149See Fouchard et al., op. cit., supra, footnote 1, p. 318.
151 See the Kldckner arbitration, in Paulsson, op. cit., supra, footnote 31, p. 22.

MULTI-CONTIACT ARBITRATION
arbitration. 15 1 In these situations, the intent of the parties has been clearly expressed in
each of the agreements. The insertion of different arbitration clauses means that, for
each specific agreement, the parties intended to have the dispute settled in a different
way, and the declared intent of the parties should thus receive application. If the parties
have selected different arbitral instances to settle disputes arising out of different
contracts:
"...they rejected the possibility of a consolidation externally imposed on them by a court of
law or otherwise since they had in mind having disputes decided, no matter how closely 52
interconnected, by different panels irrespective of any risk of incompatible decisions."'1
Although it is generally accepted that the best solution to avoid contradicting decisions
would be either to submit disputes arising out of these agreements to the same arbitral
tribunal or to consolidate simultaneous arbitrations regarding this set of contracts, in the
absence of an agreement between the parties, the arbitration institution does not have
the power to take any step in this regard. 153 In some legal systems, however,
consolidation can be ordered in the absence of an agreement between the parties even
when the arbitral instances chosen by the parties in the various agreements are
different. 154
(ii) A framework agreement with successive application agreements
Parties often organize their business relationships on the basis of a framework

agreement, which defines the main elements of their transaction without entering into
details of the concrete terms. A framework agreement is an agreement which can be
defined as follows: the performance of its object (an object which has already been
agreed by the parties) involves the conclusion of application agreements which are
determined in the framework agreement. 5 5 The essential obligation undertaken in the
framework agreement is the obligation to conclude application agreements. In practice,
whereas the framework agreement is usually a long-term, written agreement,
application contracts are usually concluded on a yearly, semestrial or monthly basis
56
through a simple exchange of faxes or telexes, where parties agree only certain points.1
The presence of a framework agreement is an indication of the unity of the
operation and of the parties' intent to have all disputes arising therein treated as a whole.
However, here again, different situations must be contemplated: the framework
agreement and the application agreements contain identical arbitration clauses; or the
151See the Sofidifcase, Courd'appel de Paris, 19 December 1986, in Gaillard, op. cit.,
supra, footnote 66, p. 275;
and Cosr de Cassation, 8 March 1988, Revue de l'arbitrage, 1989, p. 481; Revue de l'arbitrage, 1991, p. 326; see
also Icc Award No. 5971, Bull. AsA 1995, p. 728.
IS.See Naon, op. cit., supra, footnote 1, p. 699.
1s See Fouchard et al., op. cit., supra, footnote 1, p. 319.
154See, namely, Article 25 of the Argentine Draft and Article 1126 of the NAFTA Treaty, mentioned in Naon,
op. cit., supra, foomote 1, p. 700.
15 See Sayag, op. cit., supra, footnote 8, No. 111.
156For instance, in successive sales, parties only mention the price and/or the quantity in their exchange of
correspondence.

arbitration clauses contained in the application agreements are different from that in the
framework agreement.
If all the arbitration clauses are identical, consolidation is possible for the reasons
7
described above regarding general agreements accompanied by ancillary agreements. 15
Consolidation is also possible if only the framework agreement contains an
arbitration clause, not the application agreements, and if the claimant requests two
parallel arbitrations, each on the basis of one of the application agreements. 58 By
introducing two parallel arbitrations on the basis of the same arbitration clause-the
arbitration clause contained in the framework agreement 5 9-the claimant has admitted
the interrelation between the different agreements and the indivisibility of the
operation. Consequently, there can be consolidation of parallel proceedings, especially
ifthe dispute regarding an application agreement has triggered a dispute regarding a later
application agreement. If, for instance, there is a dispute regarding the price for a certain
year, this dispute may affect the price in the following years as part of a chain reaction,
particularly when the price is determined in relation to the previous year's price. For
this reason, consolidation should be possible; by virtue of the link between the
framework agreement and the successive application agreements, all disputes could then
be treated as a whole, by the same arbitrators.
The arbitrationclauses are different
If the arbitration clauses have different contents, consolidation of the parallel

proceedings is difficult because it does not seem to correspond to the intent of the
parties. It should be taken into account that, if a later application agreement contains an
arbitration clause which is different from the one contained either in the framework
agreement or in the previous application agreements, the stipulations contained in the
new arbitration clause should prevail over the others since it can be deduced that the
parties have agreed to modify the original arbitration agreement. According to eminent
authors:
157 See Part Two, Section u.A.1(c)(i)-77Te arbitration clauses are identical.
158 Application contracts explicitly or implicitly refer to the framework agreement for all the other provisions,
including the arbitration clause. For this reason, the absence of an arbitration clause in an application agreement
does not necessarily mean that the parties did not intend to have their disputes subject to arbitration. On the
contrary, this absence can be interpreted as a tacit reference to all the terms of the framework agreement, including
its arbitration clause. This situation is very similar to the one knowq as arbitration clause by reference: see footnote
147, supra.
159According to a French court, the arbitration clause contained only in one agreement is also applicable to
disputes arising out of later, closely interrelated agreements which have the object of completing the main
agreement: see a decision rendered by the Tribunal de Grande hIstance de Paris on 20 May 1987, Revue de l'arbitrage,
1988, p. 573. Whenever it is possible to deduct from the previous contractual practice between the parties that there
was implicit acceptation of the arbitration clause regarding the latest agreement, the latter may also be submitted to
arbitration: see Fouchard et al., op. cit., supra, footnote 1, No. 523, pp. 321-322.

"...this new choice excludes, by itself, that the previous clause be considered as implicitly
renewed. Whenever the latest agreement has the same object as the previous one but
contains a different arbitration
' ' 16
clause, one can deduct that the parties have agreed to modify
the arbitration agreement. 0
Judges in France have interpreted the intent of the parties in the same way.1 61
(iii) Distinct agreements contributing to the pefonnance of the same economical operation,
without a general or aframework agreement
If the arbitration clauses are identical, it should be considered that the intent of the
parties was to consolidate the disputes. In Icc Award No. 6149 of 1990, dealing with
three sales contracts containing identical arbitration clauses, the arbitrators reached the
conclusion that:
"It must be assumed that it was the tacit intention of the parties to invest the arbitral tribunal
with jurisdiction over all disputes possibly deriving from, or being related to, their three sales
162
contracts."
The Court could make the same analysis in order to consolidate parallel proceedings.
This decision, which was based on the interpretation of the three arbitration
agreements and on the tacit intention of the parties, took into account the consequences
of a decision to the contrary. The arbitrators considered that, if it were permissible for
the parties to be engaged in different proceedings for different issues, a conflict between
the different decisions might occur. According to the arbitrators:
"Such conflicts would be detrimental to the interests of the parties. The arbitral tribunal
must therefore assume that the parties wanted to avoid such conflicts. Consequently their
arbitration agreements must be construed in such a way as to exclude a concurrent
jurisdiction of the arbitral tribunal and a State court on matters resulting from one and the
same contracts. The present dispute therefore is covered by the arbitration agreements."1 63
This reasoning can be transposed to the Icc Court of Arbitration, which should
consolidate parallel proceedings under similar circumstances.
If the arbitration clauses are different, consolidation does not seem possible a priori
64
for the same reasons described above.
2. Procedural Conditions
Joinder also requires compliance with certain procedural conditions. A particular
aspect which shall be taken into consideration is to determine whether Article 13 applies
160 See Fouchard et al., ibid., p. 322.

111In a decision rendered by the Paris Court of Appeal on 9 December 1987, Revue de l'arbitrage, 1988,
p. 573, it was ruled that by virtue of the competence clause referring to a French Court included in a later
agreement, the arbitration clause contained in a previous contract became null and void.
11,2 YC.A., 1995, p. 47.
16 Ibid., pp. 47-48.
l64 See Part Two, Section ii.A.l(c)(i) and (ii)-T7e arbitration clauses are different.

JOURNAL OF INTERNATIONAL ARlBITRATION
only to successive proceedings or also to simultaneous proceedings. Another procedural

question to be considered is the moment of thejoinder.
(a) Scope of Article 13 of the Icc Internal Rules
Does Article 13 apply only to successive proceedings, or is it also applicable to

requests for arbitration filed simultaneously on the basis of two, or more, different-but
interrelated-agreements between the same parties? In view of the general spirit of the
rule of joinder, it may be concluded that, although Article 13 only refers to the
consolidation of successive proceedings, this rule should also apply to concomitant
proceedings. If it is possible to include a claim "in connection with a legal relationship
already submitted to arbitration proceedings" in the existing proceedings, there is no
logical reason not to join two related requests for arbitration introduced simultaneously
between the same parties.
(b) Moment of thejoinder

Under Icc Rules, joinder seems possible only prior to signing the Terms of
Reference. However, after this stage of the arbitral process, it is still possible, as long as
the requirements set forth by Article 16 of the Icc Rules are met; the parties must agree
to amend the Terms of Reference, in order to include the claims and counter-claims of
the parallel proceedings which previously did not fall within the scope determined by
the Terms of Reference.1 6s According to Article 16, any new issue shall be included in
166
an addendum which shall be signed by the parties and the arbitrators.
One may wonder whether it is reasonable to consider the signing of the Terms of
Reference as the deadline for joinder in the absence of the parties' consent. It is
questionable whether such a sacrosanct value should be granted to such a document,
especially in view of the rigidity of this system. Accordingly, the Court should be able
to join two parallel arbitral proceedings which were introduced successively, and
a fortiori simultaneously, involving the same parties and the same legal relationship, as
long as the case has not gone beyond the pleading stage. However, in the present state
of the Icc Rules, this does not seem practically possible.
The constitution of the second arbitral tribunal may also be a source of difficulty
for obtaining joinder. Consolidation usually takes place before the constitution of the
second arbitral tribunal because, if the parties constituted arbitral tribunals composed of
different arbitrators for the two cases, joinder at the Court's initiative becomes almost
impossible, even if the conditions of Article 13 are met. 167
16s See Final Report on Multi-PartyArbitration, op. cit., supra, footnote 128, p. 35, No. 69.
166 "Article 16-The parties may make new claims or counter-claims before the arbitrator on condition that
these remain within the limits fixed by the Terms of Reference provided for in Article 13 or that they are specified
in a rider to that document, signed by the parties and communicated to the International Court of Arbitration."
167 See Final Report on Mnlti-PartyArbitration, op. cit., supra, footnote 128, p. 35, No. 71.

MULTI-CONTRACT APBITRATION
Consolidation is not the only remedy to avoid conflicting awards for related issues.
The risk of incoherent awards can also be reduced by defacto consolidation.
B. DE FACTO CONSOLIDATION UNDER ICC RULES
Defacto consolidation can be obtained either by the appointment of the same sole
arbitrator, co-arbitrators or chairman in the parallel proceedings, or by co-ordinating the
parallel proceedings. According to the Working Party on Multi-Party Arbitration, the
ICC Court of Arbitration has often confirmed the appointment by a party of an arbitrator
who is also a member of a parallel arbitral pane 1 68 and has often designated the same
arbitrators in related parallel proceedings, especially when the parties are not opposed to
it, in order to ensure the good administration of justice and the efficiency of the
169
proceedings.
Whenever the parties are not opposed to the appointment of the same arbitrators,
no major difficulty arises. But what happens when the parties have differing opinions as
to the participation of the same arbitrator or arbitrators in the parallel proceedings?
Would the Icc Court of Arbitration be justified in refusing the nomination of the same
arbitrator or arbitrators in parallel, related proceedings on the sole grounds of avoiding
the risk that the common arbitrator would be influenced by the related proceedings?
Can an arbitrator's eventual lack of independence be anticipated? Could an arbitrator be
challenged on the sole grounds of an eventual lack of independence?
According to doctrine, this depends on determining whether the parallel
arbitrations are simultaneous or successive. In successive arbitrations, such a refusal may
be founded if an arbitrator has a past link with a party or when he has expressed a prior
opinion on a similar question. 70 However, in situations involving simultaneous cases,
that is whenever the parallel arbitrations were introduced simultaneously, the solution
would be different. In such a case the Court would not always be justified in refusing
the nomination of the same arbitrator. 171 In fact, no general rule can be applied; the
solution must be given on a case-by-case basis, according to the facts and
circumstances.172 Some authors consider that two different situations should be
distinguished: co-arbitrators, on the one hand and, on the other, the sole arbitrator and
the chairman. Whereas the nomination of the same co-arbitrator in parallel arbitrations
presents no specific problem in terms of violation of the principle of independence, the
appointment of the same chairman and the same sole arbitrator in related proceedings
73
may present a risk in this respect.'
Bearing this in mind, the following hypothesis, based on a real experience, can be
168Ibid., p. 36, No. 77.

I'," Ibid., p. 36, No. 78.
171See Ajibola, op. cit., supra, footnote 130, p. 117; and W.L. Craig, W.W. Park andJ. Paulsson, Inteinational
Chamber of Commerce Arbitration, Icc Publishing, Paris, 1990, pp. 232 et seq.
171 See Ajibola, id.
172 Id.
173 Id.

JOURNAL OF INTERNATIONAL AILBITRATION
envisaged. A, the claimant, decides to initiate two simultaneous arbitral proceedings

against B, the defendant, each regarding a dispute relating to a different contract, but the
two contracts, containing identical arbitration clauses, are part of the same economic
operation, under a general agreement. Whereas A designates a different co-arbitrator for
the two proceedings, B nominates the same co-arbitrator in the two proceedings and
requests the Icc Court to appoint the same chairman for the two panels. However, A
challenges B's designation of the same arbitrator and contests its request regarding the
appointment of the same chairman. To what extent are A's requests justified? Should
the Icc International Court of Arbitration confirm or reject the appointment by the
defendant of a co-arbitrator who is also a member of a parallel arbitral panel, in case of
challenge by the claimant? Should it confirm or reject the defendant's request for the
appointment of the same chairman or sole arbitrator in the parallel cases, in case of
challenge by the claimant?
These questions will be analysed in the light of the procedural strategies which
could guide the parties and in respect of the major procedural principles. One may
wonder whether challenging the appointment of an arbitrator on the sole grounds of his
participation in a parallel case, submitted to the same arbitration institution between the
same two parties-and no one else-and regarding interrelated agreements, would be
contrary to the principles of due process, equality of parties and good faith.
1. The Principle of Due Process
The principle of due process of law, one of the fundamental principles of

international arbitration, means that each party shall be allowed to present arguments on
every aspect of the case in dispute-this includes both questions of fact and questions of
law-and that the arbitrators shall base any decision they render upon the submissions
made in the case before them which both parties have had the opportunity to contest
174
and argue.
Undoubtedly, parties to an international arbitration are entitled to due process of
law, but such principle of due process, like any other fundamental principle of law,
should not be read or applied unilaterally. In a judgment rendered by the Paris Court of
Appeal, 75 it was firmly stated that, as a general rule, the principle of due process is not
violated when the same arbitrator participates in two parallel proceedings. 17 6 Although
this judgment deals with a situation where there were five parties and four separate
contracts (two Loan Agreements and two letters guarantee issued in order to secure the
loans), this rule should apply afortiori where the arbitral proceedings involve only two
parties linked in one single transaction under a general agreement, as in the hypothesis
174See Catherine Kessedjian, Prindpe de la contradiction et arbitrage, Revue de 1'arbitrage, 1995, pp. 381-410;
Fouchard er al., op. ct., supra, footnote 1, Nos. 1638 et seq.
17-5Ben Nasser v. Bsap and Crdit Lyonnais, Paris, 14 October 1993, Revue de 'arbitrage, 1994, No. 2, p. 380,
note Pierre Bellet; and J.D.I., 1994, p. 446, note E. Loquin.
171,According to the Court, "le prindpe de la cotradiction n'est pas violi, pas phls que les droits de la difense, Iorsqu'tin
,,Ee arbitre statue dans deux instances paralliles.": ibid.

envisaged above. Accordingly, an arbitrator's participation in two parallel cases is not by

itself contrary to the principle of due process.
The solution would be different if an arbitrator participating in two parallel and
linked proceedings were biased. Whereas bias may be grounds for challenge, a challenge
based on a party's subjective allegation of bias or of an eventual lack of independence
would not seem to be justified. The mere participation of an arbitrator in two parallel
and closely connected arbitral proceedings does not make such arbitrator incur the
reproach of being biased in the second case. An arbitrator's participation in the first case,
and the fact that he becomes acquainted with facts, of which his fellow arbitrators in the
second case are not aware, does not necessarily preclude him from deciding a case based
only on the evidence, arguments and applicable law in that case.
If the arbitrator's independence, impartiality or expertise are not questioned, there
seems to be no violation of the principle of due process. Actually, it is generally accepted
that a judge can hear a dispute for a second time without thereby violating the right to
an impartial tribunal. 177 According to doctrine, this "is a strong argument in favour of
allowing an arbitrator to serve on two panels which are called to settle disputes based on
similar facts". 178 As it has been brought to light for multi-party arbitration:
"...as a general rule, the impartiality of an arbitrator should not be doubted because of the
fact that he is called to decide a dispute based on the same facts as those on 79 which he was
previously called to arbitrate as a member of a different arbitral tribunal."1
The source of the bias is not participation but rather his possible partiality. 8 0 Such
was the position of the President of the Paris Tribunal de Grande Instance sitting in
Chambers and deciding in two successive multi-party arbitrations.18 1 Since such is the
rule applicable to two successive multi-party arbitrations, it should afortioriapply to two
successive or simultaneous arbitrations involving the same two parties and relating to the
same transaction.
An allegation of bias needs to be proved. It is up to the party willing to challenge
the arbitrator appointed by the other party to bring evidence of such bias; a party cannot
limit itself to raising a hypothetical risk of bias. As has been pointed out, "the burden is
on the challenger to demonstrate that real bias does in fact exist". 18 2 It is well established
177 See the French case-law and the decision rendered by the European Court on Human Rights mentioned
by van Houtte, op. cit., supra, footnote 82, pp. 397-398.
178 Ibid., p. 398.
179Ibid., p. 397.
11i See, e.g., M. Bedjaoui, Des fortes viritis de Cassandre aux inodestes correctifs de Nd,,dsis, in Etudes de Droit
Interntationalen I-oineurde PierreLalive, p. 396, No. 26 and No. 35.
181"Aucun principe ne s'oppose ace qu'un arbitrejugeet non ,natidatairede lapartie qui l'a dis(qni, qui voit son pouvoir
de juridiction procider de la volonti conunune des parties, mime si sa distqnation estfaite sur le choix d'une seule partie, soit
appelk a statuer su I'appel en garantieforniapris ue procdditreprincipale dont ila en pr&ideninrent a connaltre comnie arbitre.
Pour cet arbitre, la connaissance de laprocdure anterieure W'est pas de nature a inettre en cause son inipartialitiainsi que sot
objectiviti, ni ninite son aptitude ajugersereineinentle noutveau lit(qe, dis lots
que sa personne nefait l'objet d'aucuatecontestation
sirieuse.": see, SETEC v. Sicc4, Tribunalde Grande Instance de Paris, Ordonnancede riffri. 13 January 1986, Revue de
l'arbitrage, 1987, note Pierre Bellet, p. 63; see also, G. Aguilar Alvarez, The Challenge Procedure: The Role ofArbitral
histitutions, theInterventions of.Local Courts, in The Arbitral Process and the hIdependence of Arbitrators, Icc Publishing,
1991, p. 71.
182See Craig, Park and Paulsson, op. cit., supra, footnote 170, p. 233.

that the grounds for a challenge are of fundamental importance in appreciating whether
such a request should be refused or sustained.18 3 The arbitration institution should thus
analyse very carefully the criticisms put forward by each party against the propositions
made by the other party. It seems doubtful that the Court of Arbitration would sustain
a challenge based on the sole grounds of the arbitrator's participation in parallel
proceedings, unless it feels that the claims of the challenger, even if somewhat subjective,
are bonafide. However, the Court will not accept such a challenge if it considers that the
challenger's intentions are rather inalafide, that is the challenge seems unreasonable or
made to cause delay.18 4 Since the purpose of consolidation (stricto sensu and defacto) is to
provide a more accurate picture of the dispute, the following are some examples of what
could be considered as a malafide behaviour:
- refusing to constitute a single arbitral tribunal;
- challenging the arbitrator that a party was forced to appoint in the second arbitral
proceeding as a consequence of the other party's refusal to constitute one single
arbitral tribunal;
- appointing different arbitrators for the parallel proceedings and requesting the
arbitration institution to appoint different chairmen for the two arbitral panels.
After all, if the claimant had appointed the same arbitrator in the two arbitral
proceedings, the risk of bias would be considerably reduced, if not excluded.
In addition, the claimant could not, on the one hand, contend that there are two
"separate" and "unrelated" disputes arising out of two "separate agreements" and, on
the other hand, sustain that the participation of the same arbitrator in such two
"unrelated" disputes could present a risk of bias. If the disputes are really unrelated there
is logically no risk of bias.185 Such an attitude could be considered as contrary to the
186
principles of good faith and of estoppel (venire contrafactum proprium).
It would be somehow contradictory for the claimant to contend that there could
be a risk of bias where it not only does nothing to mitigate this risk but moreover is
responsible for the consultation of the second arbitral tribunal. It should be considered
that a good and reasonable remedy to such a risk would have been for the claimant to
appoint, in the second case, the same arbitrator as in the first case; but one may
understand that such a choice would not meet its purposes and would not serve its
procedural strategy, which is to have two different arbitrations.
In some cases, the Court of Arbitration could be inclined to conclude that the
claimants who contest the designation made by the defendants solely on the grounds of
their previous participation in the awards, regarding related cases, are abusing their
183 See Ajibola, op. cit., supra, footnote 130, p. 117; Craig, Park and Paulsson, ibid., pp. 233 et seq.; and Pierre
Bellet's comments on the SETEc decision, op. cit., supra, footnote 75, p. 73.
114See Craig, Park and Paulsson, ibid., pp. 233-234.
18-1According to Pierre Bellet, who comnments on the SETEC case, the arbitration regarding the demande
principaleand the arbitration regarding the demande en garantieconstitute two different cases and for this reason there
is no ground for challenging an arbitrator participating in both cases: see op. cit., supa, footnote 75, p. 74.
1116See E. Gaillard, L'interdiction de se contredire au dtrinent d'autni coinme principe gjni&al du droit du commerce
international, Revue de l'arbitrage, 1985, pp. 241-258.

MULTI-CONTRACT AIRBITRATION
rights. For President Pierre Bellet, the absence of precision on the part of the parties
87
who challenge an arbitrator represent an abuse of their rights.
The freedom of the parties to select and appoint an arbitrator of their choice is
another fundamental principle of international arbitration. 8 8 The participation of an
arbitrator in two parallel and linked arbitral proceedings is not forbidden, neither by
international conventions, nor by national laws or institutional rules of arbitration. The
Icc Rules do not prohibit such a participation. Thus, in challenging an arbitrator, the
claimant can be considered as willing to prevent the defendant from appointing an
arbitrator of its choice, and thus to prevent the defendant from exercising its right to
appoint the same arbitrator in two parallel and linked arbitral proceedings, which the
claimant may be attempting to separate artificially. The claimant should thus be
considered as abusing the arbitral process in so doing, since, in entering into connected
agreements, the legitimate expectation of the parties seems to have been to submit their
disputes to one single arbitral tribunal.
The appointment of the same arbitrators in the two cases is sometimes necessary in
order to ensure a proper administration ofjustice as well as to avoid conflicting decisions
and delays. It is well-established that the designation of a common arbitrator is the best
solution when there is no agreement between the parties concerning joinder. 8 9
The appointment of the same chairman or the same sole arbitrator in the parallel
arbitral tribunals can prevent the arbitrators from basing their award upon submissions
which neither party would have the opportunity to contest and argue. Such a defacto
consolidation was admitted by the London Court of Appeal in the Abu Dhabi Gas
Liquefaction Co. Ltd. case, and is generally recommended by prominent scholar
authorities. 19(l
2. The Principleof Equality
Could it be justifiable to consider that the appointment of the same arbitrator in

two cases would violate the principle of equality, as that arbitrator would be acquainted
with facts and arguments to which the other members of the arbitral tribunal would not
be privy? Here also, a negative answer would seem to be reasonable.
The principle of equality between parties is closely related to the principle of due
process; however, compliance with the latter does not necessarily result in a respect of
the former.' 91 French courts require that all parties have equal rights regarding the
WH7 See Bellet, op. cit., supra, footnote 75, p. 73.

's" See, Guide to Icc Arbitration, Icc Publishing, Paris, 1994, p. 33; and Bedjaoui, op. cit., supra, footnote 180,
p. 386, No. 6.
1') See Ajibola, op. cit., supra, footnote 130, pp. 117-118, who mentions a practical application of this solution
by the Iran-U.S. Tribunal, at his footnote 38. See also Bellet's comments on SETmc v. StccA., op. cit., supra. footnote
181, p. 63 et seq., especially pp. 68 and 70.
1'l Abi Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corporation's,decision rendered on 23 June 1982: see
Part One, Section II.B.2(b); and footnote 77, supra.
1'9 See Fouchard et al., op. cit., supra, footnote 1, No. 1638, p. 962.

designation of arbitrators 192 and the parties' freedom in choice of arbitrators is not
illimited. 193 Scholars have stressed the importance of the principle of equality. Professor
B6ckstiegel has stated that it is fundamental to ensure "that no party had an advantage
or a disadvantage right from the start. Great caution had to be exercised on this
point", 9 4 while Emmanuel Gaillard "agreed that equality was the goal, including
195
equality in the structuring of the arbitration".
In analysing whether to sustain or refuse a request of challenge, the Court of
Arbitration may consider that the constitution of the arbitral tribunal should not allow
a party to build up the appropriate strategy in order to strengthen its position. By
splitting the settlement of indivisible disputes into two arbitral proceedings, and in
attempting to obtain the constitution of two different arbitral tribunals, the claimant
may deprive the defendant of its right to present its case relating to the second agreement
with due process and in an equal position to the claimant's. 96 It is the duty of the
arbitration institution to ensure that the parties will have a fair trial, 197 as is universally
198
conceived, and namely in Article 6 of the European Convention on Human Rights.
It is important to consider the negative effects which the claimant's challenge may
have on the defendant's right to present its case. Arbitration institutions should consider
that by filing two parallel requests for arbitration, under each of the related agreements,
a party may be deliberately and artificially splitting the settlement of a single dispute
relating to obligations set forth by the same contractual relationship, for tactical purposes
only. Sometimes the claims submitted by a claimant in an arbitration are nothing but an
aspect of a larger dispute involving other agreements; sometimes different aspects of the
complex legal and business relationships created by these various agreements and the
courses of conduct pursued thereunder are pending before another tribunal. The
separation of the parallel proceedings may create a sort of "watertight compartment"
between their merits. This could, for instance, prevent the defendant from raising, in
the second arbitration, any argument based on the agreement submitted to the first
arbitration, although both agreements are parts of a general agreement relating to the
same operation.
In deciding not to join parallel interrelated cases, the Icc Court of Arbitration may
create an extremely difficult situation which could harm the defendant's case, and thus
prevent the arbitrators from having an overall view of the dispute. In some cases, if no
link is established between the parallel disputes, the fundamental conditions of a fair trial
192See the Dutco decision in Fouchard et al., ibid., No. 792, p. 485.
19.1Ibid., No. 793, p. 485.
194 See Connittee on Inteniational Commercsal Arbitration, Working Session of 19 Angust 1994, having MaftreJean
Lisbonne as Chainnan, in Report of the Sixty-Sixth Conference of the hiternational Lau, Association, Buenos Aires
Conference 1994, The International Law Association, London, 1994, p. 713.
19-5Ibid., p. 713.
196The principle of due process applies not only to questions of law but also to questions of fact: see Fouchard
et al., op. cit., supra, footnote 1, at No. 1639, p. 964.
197 See Philippe Fouchard, Les institutions pennanentes d'arbitrae devant leitqe itatique, in Revue de l'arbitrage,
1987, p. 256, No. 42.
198 For a discussion on the application of the European Convention on Human Rights to arbitration, see
Charles Jarrosson, L'arbitrageet la Convention europienne des droits de I'hounue, Revue de larbitrage, 1989, p. 573.

may not be met, namely when the dispute between the parties involves the exceptio non
adimpleti contractus principle, for instance when one of the parties refrains from
performing its obligations under an agreement, by retaining sums owed, in order to
defend its contractual rights, that is, only because the other party did not perform its
obligations under another agreement belonging to the same group of contracts.
Whether or not the defendant is entitled in such a situation to raise the exceptio
touches the merits of the case and falls within the scope of the arbitrators' jurisdiction,
but it seems logical that if the arbitral treatment of the two agreements is split, the
defendant might not be able even to raise the argument based on the exceptio and
consequently may be deprived of its right to present its case in an equal position to the
claimant's. The IcC Court should pay particular attention to a situation like this and
should not ignore its consequences, which would be contrary to the proper
administration of justice. The concept of "a fair hearing" cannot be overlooked.
According to Judge Jean-Pierre Ancel, "no arbitral award can be considered to be an
enforceable jurisdictional decision in the absence of procedural guarantees".1 99
Consequently, the claimant's request to have two different panels of arbitrators, under
such circumstances, could result in actual manipulation of the constitution of the arbitral
tribunal and should thus be dismissed by the Icc Court in order to restore balance to
the proceedings.
3. The Parties' Duty to Co-operate in Good Faith
Can a party be considered in good faith when, on the basis of the existence of two
distinct but identical arbitration clauses contained in two interrelated agreements, it
claims for the constitution of two distinct arbitral panels, thus increasing the costs of
arbitration and thereby creating a risk of contradicting awards and depriving its
opponent of certain means of defence, which could be raised under a single transaction
and not under separate agreements? Since the parties have the duty to co-operate in
good faith in the performance of the agreement, 200 as well as in the arbitral proceedings,
there is no reason why they should not have the same duty to co-operate in good faith
in the constitution of the arbitral tribunal. After all, the arbitration clause is nothing but
one of the clauses of an agreement, and the principle of good faith should consequently
apply to the constitution of the arbitral tribunal, which corresponds to the performance
of the obligations assumed under the arbitration clause.
Whenever an arbitration clause refers to an arbitration institution, the constitution
of the arbitral tribunal involves two agreements: the agreement between the parties and
"I See Jean-Pierre Ancel, FrenchJudicial Attitudes Toward International Arbitration, Arbitration International,
1993, p. 127.
21(NSee the Icc Award No. 3131 of 26 October 1979, Norsolor, Revue de I'arbitrage, 1983, p. 525; and Pierre
Mayer's comments on the Beyrard decision rendered by the Paris Court of Appeal on 12 January 1993, Revue de
l'arbitrage, 1994, p. 615.

JOURNAL OF INTERNATIONAL ARBITKATION'
the arbitrators (contrat d'investiture), 20 1and the agreement between the parties and the
arbitration institution. 2112 The contrat d'investiture is implemented through the
constitution of the arbitral tribunal. In case of a three-arbitrator panel, each party has the
right to designate a co-arbitrator. But, as all rights are susceptible of abuse, a party may
abuse its right to designate an arbitrator. The attitude of a party who refuses to designate
the same arbitrator in the parallel arbitral panels might be considered as a violation of its
obligation to perform, in good faith, its undertakings assumed under the arbitration
clause. 2 3 The parties should co-operate not only before but also after the constitution
of the arbitral tribunal. Indeed they should also co-operate in the constitution of the
arbitral tribunal. In Mr Jarvin's list of delaying manoeuvres by the claimant, 2 4 it seems
possible to add the constitution of simultaneous parallel arbitral tribunals involving the
same parties and a single economic operation. It should be borne in mind that a co-
arbitrator, although chosen by one of the parties, becomes the "judge" of the two and,
for this reason, the designation of the co-arbitrator, which is the implementation of the
contrat d'investiture, should be carried out by the parties in good faith. As emphasized by
President Pierre Bellet, it can no longer be admitted that the designation of arbitrators
be made without any participation of the adversary or at least without any legal control
25
other than the challenge.
It should be possible to fight an abuse committed by a party, and this is the duty of
the arbitration institution, 206 essentially when, as in the Icc system, the claimant has an
incontestable advantage in the construction of the arbitral structure. It is up to the
arbitration institution chosen by the parties to combat any abuse, by any of the parties,
of its rights in the performance of the agreement leading to the constitution of the
arbitral tribunal. If the Icc Court of Arbitration accedes to the challenger's request and
decides to appoint two different arbitrators in two parallel cases, this may create
difficulties in ensuring a proper administration ofjustice.
C. AI THE ICC RULES SUFFICIENT TO ENSURE GOOD ADMINISTRATION OF JUSTICE?
One may wonder whether the provisions for joinder contained in the Icc Rules
are sufficient to provide the Court of Arbitration with efficient tools, enabling it to
perform its duty to ensure the proper administration ofjustice.
Parties often have opposing strategies and tactics and may take advantage of a
2111That is, the agreement through which the parties entrust the mission of settling their dispute to the
arbitrators: see M. de Boiss~son, /edroitfrancaisde l'arbitrage interne et international, GLN-Joly Paris, 1990, No. 202;
and Fouchard et al., op. cit., supra, footnote 1,Nos. 1101 et seq.
20)2That is, the agreement through which the parties entrust the mission of organizing and administrating the
arbitral proceedings to the arbitration institution: see Fouchard et al., op. cit., supra, footnote I, at Nos. 974 et seq.,
pp. 561 et seq.
"3 See Sigvard Jarvin, L'obl(Vation de coopirerde bonnefoi, exeniples d'applicationau plan de I'abitraqeinteniational,
L'arbitraqe conintercial international--L'apport de lajnrispnidence arbitrale-Seminars of 7 and 8 April 1986, Icc
Publishing, 1986, pp. 157-179.
'1 Ibid., pp. 175 et seq.
2.5 See Bellet, op. cit., supra, footnote 75, p. 72.
2' For the duties of the Icc, see Fouchard et al., op. cit., supra, footnote 1, Nos. 974 et seq., pp. 561 et .ieq.

multiplicity of contracts either to prevent a single arbitration or to try to avoid parallel

arbitral proceedings from taking place. Accordingly, the question of determining
whether consolidation (stricto sensu and de faao) is convenient or not depends on the
interests at stake. As the parties may have different positions regarding consolidation, the
existence of an efficient remedy, available to the parties and prior to the beginning of
the arbitral proceedings, is absolutely imperative. The Rules of the Icc and of the other
main arbitration institutions have not, to date, set forth a general solution to settle any
procedural difficulties which may arise from two-party arbitrations regarding multi-
contracts. 207 Accordingly, as demonstrated, the procedural position of the claimant gives
him, as a rule, certain procedural advantages, namely the possibility of determining
whether the issues will be settled before one or several arbitral tribunals. The claimant
may choose to introduce either one or several requests for arbitration, as the conditions
for introducing the request or requests are not controlled by the different arbitration
institutions.
The claimant can prevent the joinder of parallel proceedings in spite of the
existence of Article 13 of the Icc Internal Rules. Actually, the constitution of the
arbitral tribunal can be a means for the claimant to avoid the joinder. As, rightfully,
stressed by Antoine Kassis, 208 the party which has introduced the second arbitration
regarding the legal relationship subject to pending arbitral proceedings between the
same parties before the Court of Arbitration is able to thwart the Court's power to order
consolidation. In order to obtain such a result, the party which introduced the second
arbitration needs only to designate, for this new arbitration, a different arbitrator from
the one it had chosen for the first arbitration. In this case, joinder cannot take place
because the claimant has exercised one of its rights under the Icc Rules, the right to
prevent joinder from taking place. By virtue of the claimant's rights, the Court is not
only barred from consolidating the related proceedings, but also prevented from
rejecting the designation of the new arbitrator, since the Icc Rules do not allow it to
do so for this reason. In other words, the joinder set forth by Article 13 of the Internal
Rules is conditioned to the designation, by the claimant, in the new arbitration of the
same arbitrator it chose in the previous arbitration. This is how the Court seems to
interpret and apply Article 13 in this kind of situation. 2°9 As, in such circumstances, it
can be assumed that the defendant has no interest, on its side, to appoint a different
arbitrator, if the same chairman is appointed, the identity of the two panels will prevent
a risk of contradicting awards.
In order to bypass the party blocking the joinder, the Court has sometimes
appointed, in the new arbitration, the same chairman it chose for the previous
arbitration. However, this may jeopardize the result of one of the two arbitrations and
may give the dissatisfied party a weapon against it. A time interval between the two
207 The Working Party on Revision of the Icc Rules does not even mention this point: see Richard H.
Kreindler, Imnpending Revision of the Icc Arbitration Rules-Opportunitiesand Hazardsfor Experienced and Inexperienced
Users Alike, 13 J.Int.Arb. 2,June 1996, pp. 45 et seq.
208 See Kassis, op. cit., supra, footnote 1, Nos. 403 et seq.
in Id.

arbitrations may constitute enough grounds for a party to argue that there has been bias,
and thus violation of the principle of due process, by virtue of the award rendered on
210
the debates which took in the previous arbitration.
The claimant's procedural advantage cannot be considered to be harmless as it has
a direct impact on the merits. This represents a violation of the principles of due process
and equality between the parties, whereas procedural rules serve to ensure the respect
of these principles. If the intention of the parties was to establish an interrelation
between their agreements, this interrelation should be reflected in the proceedings, that
is, interdependence should be taken into account in the constitution of the arbitral
tribunal.
The possibility for these institutions to control the desirability for the claimant to
introduce, at the same time, several proceedings regarding the same business transaction
against the same defendant is an important matter. As it is usually the request for
arbitration that outlines the issues which are brought before the arbitrators, the claimant
is, in fact, totally free to constitute the arbitration and, accordingly, to dictate the course
of the proceedings, to a certain extent. However, as the counter-claim also contributes
to determining the scope of the debate brought before the arbitrators, it seems
reasonable to provide the defendant with institutional possibilities of controlling the
procedural strategy designed by the claimant.
Unfortunately, the Icc International Court of Arbitration practically disposes of no
specific rule allowing it to oblige the claimant to submit issues arising from different
agreements of a single contractual relationship to a single arbitral tribunal. An agreement
between the parties seems to be the only remedy to this effect. However, the parties'
consent does not always seem to provide a just and efficient solution to this problem.
The Icc Rules illustrate this institution's concern of not imposing any rigidity or
inflexibility to its usages, and its intention of having the greatest possible freedom of
decision. However, the inability of arbitration institutions to resolve disputes regarding
procedural aspects such as consolidation is a weakness which may affect their credibility.
It is therefore necessary to have rules which permit their intervention in order to control
arbitral proceedings.
The fact that arbitration rests on a consensual basis should not constitute an alibi for
arbitration institutions, allowing them to refrain from implementing justice. If
arbitration institutions decide to strictly enforce the parties' consent, there might be a
great risk that this consent will turn out, in practice, to be the claimant's will. It must
not be forgotten that their intervention is of an institutional nature, and that arbitration
institutions have the duty to participate in the performance ofjustice. What is the point
in paying administrative fees to arbitration institutions if they cannot give a satisfactory
solution to such a problem? Can it be claimed that good administration ofjustice has
been served in such a case?
It is sometimes disappointing to see the Icc Court entrench itself behind the formal
2111
Ibid., No. 404.

appearance of the agreements in order to justify its non-intervention. As the Court does
not state the reasons for its decisions, it is rather difficult to predict how it would react
in parallel two-party arbitrations. The party who believes that loyalty, fairness, reason
and justice should plead in favour ofjoinder thus feels very frustrated, especially because
the only solution left for such a party seems to be to play the game according to the
claimant's rules.
To avoid this vicious circle, there is no possibility for the defendant other than
introducing a parallel request for arbitration regarding all the disputes subject to the
different parallel arbitrations which were introduced by the claimant. In this case, what
would happen if the "new" defendant-the claimant in the parallel arbitrations
introduced previously-requested the Icc Court to break up the "new" arbitration into
two arbitrations? If the Court accepted this request, we would be back to our initial
hypothesis. In addition, this means that the Court can only separate and not consolidate
parallel proceedings in the absence of an agreement between the parties. This solution
would be absurd, especially in view of the fact that, although having powers to
consolidate ex efficio by virtue of Article 13,211 in practice it only orders consolidation
when there is consent. The separation of the disputes in the absence of consent, and in
the absence of specific Icc provisions to this respect, would seem rather strange.
Another hypothesis would be for the Court to reject the "new" defendant's request. In
this case, one would be in the presence of a litispendence situation, that is three parallel
proceedings regarding the same disputes and between the same parties. If the Court
accepts the "new" claimant's position, this would also confirm that the party which
takes the initiative of the arbitration has an advantage right from the start, as it can build
the arbitral structure according to its will. This conclusion demonstrates that the current
consolidation system of the Icc is pathological.
For completeness, the opposite situation should also be mentioned, where one of
the parties introduces a single arbitration concerning disputes arising out of different
interlocked agreements, and where the defendant requests the Court to order the
separation of the arbitral proceedings. Should the Court sustain or reject such a request?
Although Article 13 of the Icc Internal Rules does not expressly mention separation, it
should be considered that it tacitly gives the Court the power to refer the parallel
proceedings to different tribunals in certain situations. Article 13 should be interpreted
as allowing the Court to order separation according to the same principles that apply to
joinder. The Court should thus take into account the intent of the parties at the moment
of the negotiation and of the performance of the agreements as well as the economic
reality of the operation. Accordingly, in the presence of identical arbitration clauses in
each one of the litigious contracts, the Icc International Court of Arbitration would
probably not sustain such a request for separation.2 12 On the other hand, if the
211 See Part Two, Section ui.A.1(b).

212 See the hypothesis mentioned in Part Two, Sections li.A.1(c)(i) and (ii) under-The arbitratio, clauses are
identical; and Section ii.A. 1 (c)(iii).

arbitration clauses are different, the separation of the arbitral proceedings would seem
2 13
to be more likely.
In the absence of an institutional and practical solution regarding consolidation, it
is up to the arbitrators to co-ordinate parallel proceedings and to decide whether or not
they have jurisdiction over disputes arising out of related agreements.
Ill. ARBITRATORS AND MULTI-CONTRACT SITUATIONS
As has been shown, most common-law and civil-law countries have not enacted
rules enabling the courts to consolidate two or more arbitrations without the consent
of the contracting parties, and the procedural rules of most arbitration institutions do
not provide for consolidation of parallel arbitral proceedings; additionally, even when
an institution's rules expressly provide for joinder, it is not sure that it will be
implemented. In Icc arbitration practice, consolidation is only carried out if the
parties agree to it.214 In the absence of institutional or statutory rules and of the courts'
inherent power to consolidate, how can complex arbitrations be dealt with in
practice?
Although arbitrators play a central role regarding the conduct of arbitration
proceedings, they do not have the power to consolidate, unless there is agreement
between the parties. For this reason, when confronted with parallel arbitrations
regarding multi-contract situations, arbitrators have to find substitutes or alternatives to
consolidation. According to various authorities, it is up to the arbitrators to fill in the
consolidation gap found in most legal and institutional systems. Pierre Bellet considers
that arbitrators should endeavour to solve the procedural difficulties raised in complex
arbitrations and that they should, by applying means borrowed from the procedural
rules of the courts, unofficially or officially co-ordinate and harmonize arbitral
215
proceedings taking place in parallel.
Faced with the impossibility of implementing consolidation stricto sensu on the basis
of interrelation between the proceedings, it may be appropriate for arbitrators to give
some thought to the matter of interrelation between contracts and to the relational
contextual theory.2 16 This could contribute to avoiding the problems of non-
consolidated proceedings.21 7 In some situations, considering distinct agreements in
complete isolation from each other complies neither with the economic reality of the
operation, nor with the intention of the parties. In Icc Award No. 6829 of 1992 it was
affirmed that:
213 See the hypothesis mentioned in Part Two, Sections I.A. I (c)(i) and (ii) under-77e arbitration clauses are
and (iii).
different,
214 As discussed in Nos. 69 to 72, supra, Article 13 of the Icc Rules expressly empowers the Court of
Arbitration to order joinder in the absence of the parties' consent when certain requirements are met. But in
practice, the Court conditions joinder to the parties' consent.
21s See P. Bellet, op. cit., supra, footnote 65, p. 62.
216 See Part One, Section i.
217 See Part One, Section im.A.

MULTI-CONTILACT ARBITRATION
"...there might be circumstances under which a tribunal's duty is to look beyond the
specific contract brought before it218and to take into account the economic or business
realities behind the legal structure.
19
According to Nagla Nassar (making reference to Icc Award No. 5989 of 1989),2
interpretation means taking into account the surrounding circumstances and the facts
which indirectly affected the formulation of the agreement. 221
If parallel arbitral panels rule on related disputes arising out of different agreements,
there is a risk of incompatible solutions. 221 For this reason there should be some kind of
co-ordination or harmonization between the parallel tribunals, for instance by holding
joint hearings or by exchanging information regarding the progress of the arbitral
proceedings. Arbitrators could also apply the principle of exception de connexitW, 222 as
conceived for instance in French law, that is one of the arbitral tribunals should stay the
proceedings on the merits while waiting for the other tribunal to render a decision
concerning its jurisdiction over that issue if the decision to be rendered by that arbitral
tribunal is to have effect on the dispute submitted to the second arbitral tribunal. This
solution does not present any major difficulty regarding the arbitrators' jurisdiction
because, by virtue of the principle of Kompetenz-Kompetenz, 223 an arbitral panel may
consider itself competent to rule over interrelated agreements. In Switzerland and in
Germany, for example, when a defendant declares set-off with a disputed claim which
is subject to a parallel arbitration, the arbitral tribunal has jurisdiction also with respect
to the defendant's claim.2 24 According to doctrine, case-law and arbitral practice, the
answer to the question of determining whether an arbitral tribunal constituted by virtue
of a contract may rule on disputes related to the other agreements should be found by
interpreting the intent of the parties. French doctrine considers that:
"...the arbitral tribunal has jurisdiction over related disputes if it results from the
circumstances that the parties have intended, at least implicitly, to entrust it [the tribunal]
with the task22 of settling the set-off disputes which might arise from a single set of
agreements. " 5
226
French courts have adopted a similar position.
218 Y.C.A., 1994, p. 170.

219 This case involved a multi-party arbitration regarding a framework agreement and application contracts:
see Y.C.A., 1990, pp. 74 et seq.
2-1 See Nassar, op. cit., supra, footnote 3, p. 64.
221 For the problems relating to inconsistent awards, see Part One, Section iii.A.2.
222 See Part One, Section n.A.2(a) and (b).
22. See Pierre Mayer, L'autonomnie de I'arbitre international darts I'appr&iationde sa propre cofupitence, Recueil des
cours de 'Acadmie de droit international, La Haye, 1989, Tome 217, p. 327.
224 See Michael E.Schneider, Multi-Fora Disputes, Arbitration International, 1990, pp. 112-113.
223 See Fouchard et al., op. cit., supra, footnote 1, at No. 522, p. 320.
226,See a decision rendered by the French Cour de Cassation dated 5 March 1991, Revue de l'arbitrage, 1992,
p. 66; a French Cour de Cassation's decision dated 9 June 1970, Bull. civ. Iv No. 190 mentioned in Fouchard et al.,
ibid., No. 522, footnote No. 232; see also a decision rendered by the Paris Court of Appeal dated 28 February 1992,
Revue de 'arbitrage, 1992, p. 649, regarding an "employment" agreement annexed to a protocole concluded for the
sale of a company, which included an arbitration clause.

JOURNAL OF INTERNATIONAL ARlBITRATION
CONCLUSION
Whenever parties actually had the intention of being bound by a single agreement,
which-in their mind-constituted a single unit, whose elements could not be
dissociated, and whenever an economic link between the agreements demonstrates that
there is a necessary interdependence between them, such agreements should not be
appreciated separately. A refusal to consider obligations arising from related contracts as
obligations resulting from one indivisible agreement would not be in compliance with
modern law and practice involving contracts in international commercial arbitration.
From a procedural viewpoint, the sacrosanct principle of autonomie de la volonti
should thus be soothed by mandatory principles such as the proper administration of
justice, the equal treatment of parties, adversarial proceedings and the rights of defence,
which are part of international public policy as conceived by most national legal systems
and by the law of international arbitration.
Joinder of parallel arbitral proceedings between two parties bound by interrelated
agreements should thus be seriously considered by arbitrations institutions and
introduced in their Rules so that complex arbitrations dealing with multi-contracts
would be more efficient and meet the parties' legitimate expectations. It does not seem
unreasonable to consider thatjoinder is a rule which can be disregarded when it is likely
to cause prejudice to a party and that the party desiring to set aside the joinder rule
should bring the evidence of its prejudice. After all, it is not certain that a party's simple
desire of having connected disputes judged separately constitutes a substantial right.
Annex
LIST OF CONTENTS
INTRODUCTION
PART ONE: Procedural Aspects of Multi-Contract Situations
I. THE CONCEPT OF INTERRELATED AGREEMENTS
A. DOCTRINE, CASE-LAW AND ARBITRAL PRACTICE
1. French Doctrine and the Courts' Position
(a) Doctrine
(b) Case-law
2. Arbitrators' Attitude
B. GUIDELINES FOR DETERMINING WHEN MULTI-CONTRACT SITUATIONS SHOULD BE TREATED
AS A WHOLE
1. One Single Business Relationship (the Negotium)
2. The Contractual Instnlmnents (the Instrumenta)
II. THE RULE OFJOINDER
A. JOINDER OF PARALLEL COURT PROCEEDINGS
1. The Rule ofJoinder Set Forth by Article 367
2. The Exception de Connexit6 Provided by Articles 101 et seq.
(a) French domestic law
(b) French private international law

MULTI-CONTRACT AIRBITKATION
B. SPECIFIC PROVISIONS REGARDING ARBITRATION

1. Treaties, Rules and Laws
2. Case-Law
(a) Consolidation stricto sensu
(b) De facto consolidation
III. DESIRABILITY OF CONSOLIDATING PARALLEL PROCEEDINGS IN INTERNATIONAL ARBITRATION
A. ADVANTAGES
1. Saving Tine and Money
2. Prevention of Inconsistent Awards
B. DISADVANTAGES
1. Inconsistency with the Parties' Consent
(a) Intervention of thirdparties
(b) Questions regardingconfidentiality
(c) Absence of provisions regardingconsolidation
2. Difficulties Regarding the Constitution of the Arbitral Tribunal
3. Depriving a Party ofJudicial Access
4. Unjust Apportionment of Fees
5. Enforcement Difficulties
PART Two: Multi-Contractsin InternationalArbitration Practice
1. CONSOLIDATION AGREED BY THE PARTIES
A. THE PARTIES' ROLE IN DRAFTING THE ARBITRATION CLAUSE
B. DESIGNATING THE SAME ARBITRATOR IN PARALLEL PROCEEDINGS
1I. CONSOLIDATION AND ARBITRATION INSTITUTIONS
A. JOINDER UNDER ICC RULES
1. Conditions Regarding the Merits
(a) The concept of "a legal relationship"
(b) The parties' consent tojoinder
(c) Determination of the scope of the parties' consent
(i) A general agreement with ancillary agreements
(ii) A framework agreement with successive application agreements
(iii) Distinct agreements contributing to the performance of the same econonical operation,
without a general or aframework agreement
2. ProceduralConditions
(a) Scope of Article 13 of the Icc Internal Rules
(b) Moment of thejoinder
B. DE FACTO CONSOLIDATION UNDER ICC RULES
1. The Principleof Due Process
2. The Principleof Equality
3. The Parties' Duty to Co-operate in Good Faith
C.
ARE THE ICC RULES SUFFICIENT TO ENSURE GOOD ADMINISTRATION OF JUSTICE?
III.
ARBITRATORS AND MULTI-CONTRACT SITUATIONS
CONCLUSION


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Bluebook 21st ed.

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McGill Guide 9th ed.

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In recent years, arbitral practice has witnessed the development of complex

* Avocat au Barreau de Paris.

Copyright © 2007 by Kluwer Law International. All rights reserved.

Copyright © 2007 by Kluwer Law International. All rights reserved.

PART ONE: ProceduralAspects of Multi-Contract Situations

In the international business world, a contractual relationship between two or more

4 See Naon, op. cit., supra, footnote 1,p. 690.

Copyright © 2007 by Kluwer Law International. All rights reserved.

The concept of groups of contracts"' is one of the "products" of the modern

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I. THE CONCEPT OF INTERIRELATED AGREEMENTS

Whenever there is an economic link between contracts, ensuing from the

A. DOCTRINE, CASE-LAW AND ARBITIkAL PRACTICE

1. French Doctrineand the Courts' Position

14See connexe and connexiti in VocabulaireJitridiqueAssociation Henri Capitant.

Copyright © 2007 by Kluwer Law International. All rights reserved.

Copyright © 2007 by Kluwer Law International. All rights reserved.

these agreements constitute a single unit, a group of intertwined complex contracts,

French courts have made a practical application of the notion of interrelation, by

Copyright © 2007 by Kluwer Law International. All rights reserved.

In the Kl6ckner v. Caneroon Arbitral Award, rendered on 21 October 1983,31 under

Copyright © 2007 by Kluwer Law International. All rights reserved.

B. GUIDELINES FOR DETERMINING WHEN MULTI-CONTRACT SITUATIONS SHOULD BE

In some cases, related agreements should be considered as one business transaction

Copyright © 2007 by Kluwer Law International. All rights reserved.

1. One Single Business Relationship (the Negotium)

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2. The Contractual Instruments (the Instrumenta)

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11. THE RULE OF JOINDER

Joinder is a procedural rule based upon a fundamental principle-the good

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A. JOINDER, OF PARALLEL COURT PROCEEDINGS

The rule ofjoinder is a well-accepted principle in several countries. The purpose

1. The Rule ofJoinder Set Forth by Article 367

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2. The Exception de Connexit6 Provided by Articles 101 et seq.

(a) French domestic law

The exception de connexit (plea of connexity) is a procedural rule which applies

(b) French private internationallaw

42 CA Reims, 3 October 1991,Juris-Data No. 051520, mentioned by Paul Laroche de RoussaneJonction et

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B. SPECIFIC PROVISIONS IEGARDING AlBITR.ATION

A comparative study demonstrates that most national legislations do not organize

1. Treaties, Rules and Laws

49 Ibid., No. 636.

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52 See Naon, op. cit., supra, footnote 1, p. 695.

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(a) Consolidation stricto sensu

In the United States, consolidation of parallel arbitrations by the courts was

1- See Jerzy Jakubowsky, L'arbirraqeinternational dans les litiqes commerdaux nultilatraux-l'exprieicepolonaise,

inultilatiraux, Revue de I'arbitrage, 1981, p. 51.