Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?
International Arbitration (2nd Edition)
In principle, claims under more than one contract or against multiple parties may be brought in one arbitral proceeding. Under Malaysian law, arbitral tribunals and Malaysian courts lack inherent jurisdiction to consolidate proceedings or to join additional parties to an existing arbitration.
Separate arbitral proceedings under one or more contracts may only be consolidated either where the parties mutually agree to the procedure, or where an arbitral tribunal, conferred such power by the agreement of the parties, so determines. A similar rule applies to the joinder of parties.
It is worth noting that, unlike its preceding version, the AIAC Arbitration Rules 2018 expressly empowers arbitral tribunals to add parties or to consolidate arbitral proceedings upon application by the parties.
Chile has no specific legislation neither in domestic nor international arbitration regarding multi-party or multi-contract arbitration. Nevertheless, the principle or parties’ autonomy empowers them to include the same arbitration agreement in related contracts.
Without prejudice to what may have been stipulated in the arbitration agreement for multi-party arbitrations, in case of multiple claimants or respondents, when they fail to agree on the appointment of an arbitrator, the State court may, upon request of any party, appoint all arbitrators “if it becomes clear that the parties that failed to jointly appoint an arbitrator have conflicting interests regarding the substance of the dispute” (art. 11 LAV).
There are no specific provisions in the NCPC relating to multiparty arbitration agreements. The requirements are the same as for a bilateral arbitration agreement.
In the case of a multi-party dispute, where more than two parties have different interests, article 1227 of the NCPC provides that they will have to reach an agreement to appoint three arbitrators, with the parties each appointing one arbitrator and the two party-nominated arbitrators selecting the tribunal chairman. Should they fail to do so, the president of the District Court will appoint the arbitrators on request of one of these three parties.
In domestic arbitration, art. 376 para 2 CPC expressly provides the possibility for claims between the same parties to be joined in the same arbitration proceeding, provided that these claims are factually connected and the subject of corresponding arbitration agreements between the respective parties. In contrast, the legislation on international arbitration is silent in this regard. As regards the appointment of arbitrators in multi-party disputes, art. 362 para 2 CPC stipulates that the state court at the place of arbitration ("juge d'appui"), may nominate the entire arbitral tribunal, if seized by the parties after their failure to designate the arbitrators. The revised PILA is expected to also include such solution for international multi-party arbitration proceedings.
Apart from the above, Swiss law does not provide specific provisions on multi-contract arbitration. However, if an arbitration is for instance conducted under the Swiss Rules, separate arbitral proceedings may be consolidated pursuant to art. 4 para 1 of the Swiss Rules. The decision on the consolidation of separate proceedings is made by the arbitral tribunal after consulting with both, the parties and any confirmed arbitrator in all proceedings, taking into account the relevant circumstances of the arbitral proceedings in question. Consolidation is equally possible if the parties to the separate arbitral proceedings are not identical.
No. Neither the ZPO nor the DIS Arbitration Rules (in the soon-to-be-revised 1998 version) regulate these matters in detail.
Unless an arbitration agreement is interpreted to allow for a multi-party and/or multi-contract arbitration, a third party cannot be forced to join arbitration proceedings under German law. A third party can join an ongoing proceeding voluntarily as per section 1029 (1) ZPO in conjunction with section 1031 (6) ZPO. The requirements are that (i) all parties and the tribunal agree to the joinder and (ii) the third party agrees to be joined in the proceedings.
The still-current DIS Arbitration Rules stipulate in section 13 (3): ‘The arbitral tribunal decides on the admissibility of multi-party proceedings.’ The Rules remain silent on multi-contract arbitration.
The Arbitration Act does not address this issue and the ICAC Arbitration Rules provide for typical default procedure in case of multi-party arbitration.
The Panama Arbitration Law is silent on multi-contract arbitration.
Regarding multi-party arbitration proceedings, the Panama Arbitration Law establishes that where there are multiple claimants or multiple respondents, and where the dispute is to be referred to three arbitrators, the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator. Moreover, in the absence of a joint nomination by the multiple claimants and/or the multiple respondents, and where all parties are unable to agree to a method for the constitution of the arbitral tribunal, an arbitral institution may, at the request of any party, appoint each member of the arbitral tribunal and shall designate one of them to act as president.
Moreover, the two main arbitral institutions in Panama have rules regarding the consolidation of arbitration proceedings and the appointment of arbitrators in multi-party arbitration proceedings.
The rules of both arbitration centers regarding consolidation of arbitration proceedings are very similar.
Pursuant to the Arbitration Rules of the “Centro de Arbitraje y Conciliación de Panamá (CeCAP), the center may, at the request of a party, consolidate two or more arbitrations into a single arbitration proceeding taking into account the progress of the proceedings, the legal relationship between the parties and the compatibility of the arbitration agreements. The center may also consolidate two or more arbitrations where the parties have agreed to consolidation. Pursuant to the Arbitration Rules of the “Centro de Solución de Conflictos (CESCON)”, the center may, at the request of a party, consolidate two or more arbitrations into a single arbitration proceeding provided that the disputes relate to the same legal relationship and that the time for filing or requesting the collection of evidence has not elapsed in any of the separate arbitration proceedings.
The rules of both arbitration centers are different regarding multi-party arbitration proceedings.
Pursuant to the Arbitration Rules of CeCAP, where there are multiple claimants or multiple respondents (including cases where a third party has been joined to the proceedings), and where the dispute is to be referred to three arbitrators, the CeCAP Arbitration Rules establish that the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator. Moreover, in the absence of a joint nomination by the multiple claimants and/or the multiple respondents, CeCAP shall appoint each member of the arbitral tribunal and shall designate one of them to act as president. In contrast, pursuant to the Arbitration Rules of CESCON, where there are multiple claimants or multiple respondents, and where the dispute is to be referred to three arbitrators, the CESCON Arbitration Rules establish that the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator and, the absence of a joint nomination by the multiple claimants and/or the multiple respondents, CESCON shall appoint such arbitrator.
There is no express guidance under the UAE CPC, DIFC Arbitration Law, DIAC Rules or DIFC-LCIA Arbitration Rules which addresses the issue of consolidating multi-contract arbitrations.
Where however there are multiple claims, submitted to arbitration under more than one contract, most arbitral institutions will consider applications for their consolidation of arbitral proceedings which are within their jurisdiction.
The ADGM Regulations (Regulation 35) however provides for the consolidation of other arbitral proceedings or concurrent hearings.
Different arbitration proceedings may be consolidated with the consent of the parties. However, a court cannot order consolidation of arbitration proceedings.
In case of necessary joinder, where several parties’ legal rights and obligations are inseparable, one arbitrator must be appointed for all such joint parties. If the joint appointment fails, the district court, or where applicable the arbitration institute, will make the appointment upon request of the other party.
A dispute under the SCC Rules may, under certain circumstances, be consolidated with another dispute at the request of a party. Under certain circumstances, it is also possible to accept a joinder of additional parties and to invoke claims arising out of more than one contract in the same arbitration.
The SAA includes a legal reference to multi-party arbitration under Section 15.2.b). If the number of arbitrators is three or more, both the claimants and the respondents appoint their own co-arbitrator. However, if the claimants or the respondents are not able to agree on the appointment of their respective co-arbitrator, the court will appoint all the arbitrators.
Under Spanish legislation there is no other legal reference to multi-party arbitration. However, Spanish arbitration institutions have included multi-party and multi-contract provisions in their rules.
There are no specific provisions or legal practice in Serbia which concern multi-party or multi-contract arbitration. The only rule concerning multi-party arbitration is contained in BAC rules and concerns appointment of arbitrators in multi-party arbitration. As for multi-contract arbitration, it is allowed in principle, and both the Rules of Permanent Arbitration at SCC and BAC Rules contain a provision that in case of multiple claims between same parties from the same or distinct legal relations, the secretariat of the institution will seek to join these proceedings and have them resolved by a single tribunal.
Where an action is commenced by or against multiple parties, one or more of whom are parties who are bound by the arbitration agreement, the civil action may continue as to those who are not bound by such arbitration agreement.
However, Philippine courts shall not decline to refer some or all of the parties to arbitration for any of the following reasons:
a. Not all of the disputes subject of the civil action may be referred to arbitration; or
b. Not all of the parties to the civil action are bound by the arbitration agreement and referral to arbitration would result in multiplicity of suits; or
c. The stay of the action would prejudice the rights of the parties to the civil action who are not bound by the arbitration agreement.
In addition, the court may issue an order directing the inclusion in arbitration of those parties who are not bound by the arbitration agreement but who agree to such inclusion provided those originally bound by it do not object to their inclusion.
Even though there are no specific provisions about multi-party or multi-contract arbitration, the LAM allows the parties (i.e. two or more) in a legal relationship to agree on arbitration for the resolution of disputes between them. In the case of more than one contract, except for an extension of, or amendment to, the first one, between the same parties, a different arbitration tribunal should be appointed.
The Arbitration Law makes no distinction between a multi-party arbitration agreement and a bilateral arbitration agreement.
In Croatia there are no specific rules regarding multi-party or multi-contract arbitration.
There are no statutory provisions constraining parties from entering into multi-contract arbitration and the same provisions apply as with two-party arbitration.
French law does not preclude the parties from bringing claims arising out of more than one contract in one arbitral proceeding. In defining arbitration agreements, Article 1442 CCP provides that an arbitration clause is an agreement by which the parties to one or more contracts undertake to submit to arbitration disputes that may arise in relation to the contract(s). Although Article 1442 CCP is not applicable in international arbitration, pursuant to Article 1506 CCP, many scholars are of the opinion that the definition that Article 1442 CCP provides for the arbitration clause also applies in international arbitration. Therefore, French law allows the parties to bring claims arising out of more than one contract in one arbitral proceeding, on the condition that they consent.
Multi-party proceedings have received particular attention since the Dutco case (see Court of Cassation, First Civil Chamber, 7 January 1992, No. 89-18.708). In that case, the court held that the principle of equality of the parties in the designation of arbitrators is a matter of public policy, which may not be waived before the emergence of a dispute. Therefore, two or more defendants cannot be required to appoint jointly an arbitrator if the claimant has had the opportunity, alone, to designate an arbitrator. As a result of this decision, Article 1453 CCP provides that, if there are more than two parties to the dispute and they fail to agree on the procedure for constituting the arbitral tribunal, the person responsible for administering the arbitration or, where there is no such person, the juge d’appui shall appoint the arbitrator(s) (see Question 13).
There are no peculiar rules involving third-party and/or multi-contract arbitration in Italy.
Article 816-quater CCP provides for the admissibility of a single arbitration proceedings among two or more parties bound by the same arbitration agreement only if: (i) the arbitration agreement provides for the appointment of the arbitral tribunal by a third party; (ii) all the parties agree on the appointment of the arbitrator(s); or (iii) the respondents agree to appoint an equal number of arbitrators as the claimants or agree to the appointment of their arbitrators by a third party. If this mechanism fails, the claimant must initiate separate arbitration proceedings against each respondent.
Pursuant to Article 816-quater CCP, second paragraph, if the mechanism fails with respect to a proceedings where the participation of multiple parties is required by law, the arbitration agreement becomes inoperative and the parties must bring their dispute to national courts.
The ACA is silent on multiparty arbitration agreements and there are no special considerations for conducting multiparty arbitrations. There is no provision precluding multiparty arbitration agreements in Nigeria. The parties have the autonomy to agree on how to organise and present their claims. A third party may apply, and with the consent of the parties, be allowed to participate in an ongoing arbitration. The parties to an arbitration can agree to confer on the arbitrator, in the event of multiplicity of claims, power to consolidate the claims or join other claims. This is especially so if the parties are of the view that the consolidation will finally resolve all the disputes.
There is, in the law, no limit to multi-party or multi-contract arbitrations in Austria. Hence, the parties are free to enter into appropriate arbitration agreements.
However, Austrian law does also not particularly facilitate the consolidation of proceedings either. Without consent by the parties, arbitrators cannot join separate proceedings as their competency is limited to the proceedings where they are appointed (section 594 para 1 Austrian Code of Civil Procedure).
It may also be noted in this context that the Vienna Rules contain a provision (article 15) pursuant to which the secretary general of VIAC can, upon request by a party, join proceedings where the arbitrator(s) and place(s) of arbitration are identical.
The FAA is silent concerning multi-party or multi-contract arbitration. Most arbitral institutions, however, including AAA/ICDR and JAMS, provide a mechanism for joining additional parties or consolidating arbitrations between the same parties under more than one contract. The ICDR provides for the appointment of a special consolidation arbitrator at the request of a party. In addition, some states provide specific procedures permitting courts to order consolidation of cases where the claims arise in substantial part from the same transaction or series of transactions or common issues of law or fact exist. See, e.g., Cal. Code. Civ. Pro., § 1281.3. However, a party may not be compelled to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. Stolt Nielsen S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662 (2010). In such cases, the arbitrator will decide whether class arbitration is permissible.
The issues of multi-party or multi-contract arbitration are not regulated in the GrCCP or in L. 2735/1999. Despite the absence of specific provisions though, it is accepted that by virtue of a submission agreement i.e. an arbitration agreement concluded ex post referring to existing disputes, claims arising under multiple contracts could be submitted to a single arbitral proceeding.
The situation is drastically different with regard to arbitration clauses concerning future disputes. This is because such clauses are deemed intrinsically linked to the given legal relationship under which these disputes are anticipated to arise. In domestic arbitration, said nexus is reflected to article 868 GrCCP which provides that legal relationship under which future disputes are anticipated to arise must be clearly stipulated in the arbitration clause as a prerequisite for its validity. But also with regard to international commercial arbitration, the intrinsic nexus between the arbitration clause concerning future disputes and a specific underlying legal relationship is deemed undeniable by case law and legal literature. In light of the above, claims arising under multiple contracts are claims arising under different legal relationships linked to different arbitration clauses. Hence, in the absence of a rule allowing for such a consolidation under Greek law, neither arbitral tribunals nor State Courts may impose it upon the parties. This holds true even if the several arbitration clauses are identical or at least compatible and even if the contracts and/or the disputes at hand are interrelated and/or pose essentially the same factual and legal questions. That being said, party autonomy may allow for such a consolidation of claims arising under different contracts in one single arbitration proceeding. Indeed, provided that the express consent of all parties involved is granted, multiple claims arising under multiple contracts, even signed by different parties, could be tried in a single arbitration. An obvious predicament would be the incompatibility of the various arbitration clauses. However, the agreeing parties may overcome this problem as well by amending the existing arbitration clauses (in all actuality such an arrangement could amount to a new submission agreement).
In the context of procedural autonomy, the parties may agree to the application of institutional rules under which the issues at hand are to be decided (see for example the relevant provisions of ICC Rules 2012).
The above hold true also with regard to the consolidation of multiple arbitration proceedings. Assuming that institutional rules providing for the opposite are not applicable, in the absence of specific provisions under Greek law, such a consolidation may not be imposed upon not willing parties. Party autonomy may nevertheless provide for such an arrangement.
The Israeli law does not distinguish a two-party arbitration agreement from a multi-party arbitration agreement, and the laws applicable to both types of agreements are the same laws.
The 1996 Act does not provide for court-ordered consolidation. This matter is left open to (a) the rules of arbitral institutions, which often provide a framework for consolidation or (b) the parties to agree as they so wish (s.35 of the 1996 Act).
Although the law does not state to this effect in any provision, claims arising out of or in connection with more than one contract may be brought in one arbitral proceeding as long as the arbitration agreements are compatible with respect to the number of arbitrators adjudicating the case and the constitution of the arbitral tribunal, for example.
The situation is similar with respect to the consolidation of the proceedings, for which the arbitration law in Romania neither comprises specific provisions (such as the ones currently existing under ICC rules), but nor it excludes such possibility. Therefore, theoretically, the consolidation of arbitral proceedings is possible. The traditional view is that the parties’ consent is required for the consolidation of separate arbitral proceedings where the arbitral tribunals are constituted of different arbitration panels. Otherwise, constitution of the arbitral tribunal may be considered to breach the arbitration agreement.
Turkish law does not specifically regulate the consolidation of claims arising from different contracts in one arbitral proceeding; however, there is no restriction regarding this issue. In case the arbitration rules which shall be applied to the dispute allow the consolidation, the claims arising from different contracts can be consolidated. If the parties desire to solve their separate disputes under one proceeding, the legislation offers no reason for the rejection of such a request.