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Comparative International Commercial Arbitration

Bibliographic reference
'Chapter 16 Multiparty and Multicontract Arbitration', in Julian D.M. Lew , Loukas A. Mistelis , et al., Comparative International
Commercial Arbitration, (© Kluwer Law International; Kluwer Law International 2003) pp. 377 - 409

Chapter 16 Multiparty and Multicontract Arbitration

16-1 There is a general tendency to presume that arbitration involves only two parties. Whilst this may be the norm it is not always the case.
Increasingly arbitrations involve more than two parties. (1) Multiparty contract structures are a common feature in international business
transactions.
16-2 In these situations most disputes involve more than two parties. There are situations where an arbitration between two parties will
have an impact also on other parties. Since different disputes often arise out of one event and are therefore based on the same facts, it
may be desirable to have them all decided in one set of arbitration proceedings. This has the advantage of enabling the dispute to be
resolved in one single procedure taking account of all issues and the interests of all parties affected and can save considerable costs and
time. Evidence would be presented once in an all encompassing way which gives the tribunal a complete understanding of the facts and
issues in dispute. (2) In addition, the parties would only have to pay for one arbitration tribunal. Even more important, such proceedings
have the effect of avoiding conflicting decisions which may arise out of separate arbitration proceedings. (3)
16-3 Multiparty arbitration is also fraught with considerable problems. In particular, it is essential to show that the parties have actually
consented to this type of arbitration and that they are treated equally since the lack of consent as well as any unequal treatment of the
parties are grounds of resisting enforcement under the New York Convention.
16-4 One can distinguish two types of situations which may result in multiparty arbitration: a single contract with several parties, such as
joint venture or consortia agreements, and a web of related or interdependent contracts between different parties. In the former scenario
the problems relate primarily to ensuring equal treatment in the organisation of the proceedings, in particular, in the composition of the
tribunal. In the multicontract - multiparty situation those problems are preceded by the question whether it is possible to consolidate the
different disputes into one multiparty arbitration or allow the joinder of a third party. This is primarily a question of consent. (4)
16-5 Consolidation of different arbitration proceedings may arise also in a bi-party multicontract situation. The same parties may have
entered into a number of contracts all providing for arbitration. In particular, where these contracts are part of a single venture it may be
advisable to settle all disputes between the parties in one arbitration, instead of having several separate arbitration proceedings. This
facilitates set-off, may save time and is generally cheaper than a number of separate arbitrations.
16-6 This chapter considers (1) multiparty arbitrations arising out of a single contract, (2) multiparty arbitrations arising out of separate
contracts, including joinder of third parties and consolidation of separate disputes and arbitrations, (3) consolidation of different
arbitrations between the same parties, (4) guidelines as to appropriateness of multiparty arbitrations, and (5) problems of enforcing
awards where parties have been joined or arbitrations consolidated.

1 Multiparty Arbitration Arising out of a Single Contract

16-7 Contracts with more than two parties exist in all fields of business. Probably the most prominent field of application is business
entities where companies or partnerships have more than two shareholders or partners. Other examples can be found in the construction
industry or in the finance sector where contracts of consortia and private finance initiatives play an important role. The sheer size of the
projects, the required expertise and considerations of risk management often mandate that several companies join forces to bid for a
project, to finance it or enter into loan agreements.

1.1 Consent to Multiparty Arbitration

16-8 In all these situations the parties are bound to each other through a single contract with a single arbitration clause. When agreeing on
the arbitration clause the parties must or should have been aware that in the event of a dispute it may entail multiparty arbitration. (5) To
this extent consent to multiparty arbitrations can be assumed.
16-9 However, the ICC Court has held that under a standard ICC clause contained in a multiparty consortium agreement such consent is
limited to the case where two sides are involved each comprising several parties. By contrast cases covering cross claims by one
respondent against another respondent are not considered to be covered by such a consent. (6)
16-10 Problems of consent may also arise when a party that has not signed the arbitration agreement is made a party to the arbitration on
the basis that the arbitration agreement is also binding on it. In light of the doctrine of competence-competence, the arbitration tribunal

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can decide whether or not a multiparty arbitration is covered by the arbitration agreement.

1.2 Equal Treatment in the Appointment of Arbitrators

16-11 A prime area of concern is the composition of the tribunal. This is reflected by the fact that the rules or laws which contain special
provisions on multiparty arbitration usually address this issue. (7) The appointment of a three member tribunal has proven to be the most
problematic. (8) In a two party situation equal treatment of the parties is promoted by giving each party the right to appoint its own
arbitrator and to agree, if they can, on the chairman.
16-12 In a multiparty arbitration considerable problems arise. To give every party involved the right to appoint its own arbitrator is not
workable. It could lead to tribunals of an impractical size frustrating the whole purpose of the arbitration. Even more important it may be
unfair to the side with fewer parties, which would have less influence on the composition of the tribunal. (9)
16-13 It is equally problematic to allow all claimants and all respondents to appoint an equal number of arbitrators irrespective of how
many parties there may be. The fact that several parties are named as respondents does not mean that that they have identical interests or
will co-ordinate their defence. Bringing a claim against several parties may just be a matter of convenience or tactics for the claimant. In
such a situation it might be unfair to give the claimant the right to appoint its own arbitrator while obliging the respondents to agree on one
arbitrator despite their opposing interests.
16-14 This consideration was the basis of the Dutco decision of the French Cour de cassation. (10) The case arose out of a contract for the
construction of a plant. The contract contained an arbitration clause for proceedings in accordance with the ICC Rules by three arbitrators
appointed under those rules. Dutco brought claims against the two other members of the consortium, Siemens and BKMI and nominated
one arbitrator. According to its practice at that time the ICC required Siemens and BKMI as the two respondents to nominate an arbitrator
jointly, which they refused to do. Upon threats by the ICC to appoint an arbitrator on their behalf, Siemens and BKMI nominated an
arbitrator jointly but reserved their right to challenge the regularity of the appointment procedure. The tribunal in an interim award
confirmed the regularity of the appointment.
16-15 In the ensuing challenge proceedings the Cour de cassation annulled the award because of the inherent unfairness of the claimant
having a greater influence on the composition of the tribunal than the two respondents. It stated that “the principle of the equality of the
parties in the appointment of arbitrators is a matter of public order (ordre public) which can be waived only after the dispute has arisen”.
Consequently it was considered to be irrelevant whether the parties when entering into the arbitration agreement could anticipate such an
appointment procedure or even agreed to it. (11)
16-16 As a result of the Dutco decision, a number of the major international arbitration institutions adopted specific provisions to deal with
the issue of appointment of arbitrators in a multiparty situation. They usually try to ensure equal treatment of the parties by submitting the
appointment of the whole arbitration tribunal to the institution if the parties cannot agree on a joint nominee. For example, Article 10 ICC
Rules provides
(1)Where there are multiple parties, whether as Claimant or as Respondent, and where the dispute is to be referred to three arbitrators, the
multiple Claimants, jointly, and the multiple Respondents, jointly, shall nominate an arbitrator for confirmation pursuant to Article 9.
(2)In the absence of such a joint nomination and where all parties are unable to agree to a method for the constitution of the Arbitral
Tribunal, the Court may appoint each member of the Arbitral Tribunal and shall designate one of them to act as chairman. In such case, the
Court shall be at liberty to choose any person it regards as suitable to act as arbitrator, applying Article 9 when it considers this
appropriate. (12)
16-17 This is also the solution adopted by most of the special multiparty arbitration clauses used or suggested in practice. For example, the
arbitration clause in the Consortium Agreement of the Scandinavian Airlines System concluded between the Danish, Norwegian and the
Swedish Airline corporations provides for the three arbitrators to be appointed by the Presidents of the Supreme Courts of the three
countries, one each. (13)
16-18 The downside of this solution is that it deprives the parties of one major advantage of arbitration, i.e., the possibility of appointing
arbitrators in whom they have confidence. Concerns have been raised that such a procedure may conflict with the agreement of the parties.
Where the arbitration agreement provides for appointment by the parties without taking into account the multiparty situation, as is often
the case with standard arbitration agreements, an appointment by an appointing authority appears to be contrary to this agreement. (14)
16-19 These concerns are not justified. The perceived conflict does not exist. By agreeing to arbitrate under the rules of an institution
providing for a special appointment procedure in a multiparty situation this procedure becomes part of the parties' agreement. This is
particularly clear in Article 8(2) LCIA Rules according to which in a multiparty situation “the Arbitration Agreement shall be treated for all
purposes as a written agreement by the parties for the appointment of the Arbitral Tribunal by the LCIA Court.” By agreeing to LCIA
arbitration, parties have agreed to the appointment procedure in Article 8. (15)
16-20 Where, despite the Dutco principles, the parties wish to exclude the multiparty appointment procedures provided for in the chosen
rules their intent should be clearly expressed. References in boilerplate arbitration clauses to appointment of the arbitration tribunal “by
the parties” should not be considered special agreements excluding the multiparty provisions of the chosen rules. This would require
express wording, i.e. an agreement that in a multiparty situation each “side” can appoint one arbitrator on whom the parties belonging to
this “side” must agree. (16)
16-21 The most detailed provision on appointment in multiparty cases is contained in Article 18 WIPO Arbitration Rules. This provides
(a)Where
(i)three arbitrators are to be appointed,

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(ii)the parties have not agreed on a procedure of appointment, and
(iii)the Request for Arbitration names more than one claimant, the claimants shall make a joint appointment of an arbitrator in their
Request for Arbitration. The appointment of the second arbitrator and the presiding arbitrator shall, subject to paragraph (b) of this Article,
take place in accordance with Article 17(b), (c) or (d), as the case may be.
(b)Where
(i)three arbitrators are to be appointed,
(ii)the parties have agreed on a procedure of appointment, and
(iii)the Request for Arbitration names more than one respondent, the respondents shall jointly appoint an arbitrator. If, for whatever reason,
the respondents do not make a joint appointment of an arbitrator within 30 days after receiving the Request for Arbitration, any
appointment of the arbitrator previously made by the claimant or claimants shall be considered void and two arbitrators shall be
appointed by the Center. The two arbitrators thus appointed shall, within 30 days after the appointment of the second arbitrator, appoint a
third arbitrator, who shall be the presiding arbitrator.
(c)Where
(i)three arbitrators are to be appointed,
(ii)the parties have agreed upon a procedure of appointment, and
(iii)the Request for Arbitration names more than one claimant or more than one respondent, paragraphs (a) and (b) of this Article shall,
notwithstanding Article 15(a), apply irrespective of any contractual provisions in the Arbitration Agreement with respect to the procedures
of appointment, unless those provisions have excluded the application of this Article.
16-22 The distinction in approach between several claimants and several respondents is sensible. (17) Each claimant can always decide
whether it wants to bring its claim alone or in conjunction with other claimants; no such choice exists for the respondents. Since the
decision to join forces with other claimants is taken after the dispute has arisen the obligation to agree with the other claimants on a joint
arbitrator is not a violation of the Dutco rule. The distinction furthermore makes it impossible for the claimant to deprive a single
respondent of its right to appoint its own arbitrator by just adding an additional claimant. (18)
16-23 Another approach is adopted in the Vienna Arbitration Rules. According to Article 10, where claims are brought against different
respondents they can decide whether they want to have the dispute determined by a sole arbitrator or three arbitrators. If they opt for a
three member tribunal they are then obliged to appoint a joint arbitrator which, failing an agreement, will be appointed by the institution.
The rules give the defendants the right to ensure equality in enforcement by opting for a sole arbitrator.
16-24 No similar provisions for the appointment of the tribunal in multiparty situations are contained in the older arbitration rules such as
the UNCITRAL Rules. The same is true for most arbitration laws including the Model Law.
16-25 For this reason the German legislature when adopting the Model Law added a special provision dealing with situations when one
party has a stronger influence on the composition of the arbitration tribunal.
16-26 Although not specifically intended to deal with multiparty situations it might be applicable. (19) Section 1034(2) ZPO provides

If the arbitration agreement grants preponderant rights to one party with regard to the composition of the arbitral
tribunal which place the other party at a disadvantage, that other party may request the court to appoint the
arbitrator or arbitrators in deviation from the nomination made, or from the agreed nomination procedure. The
request must be submitted at the latest within two weeks of the party becoming aware of the constitution of the
arbitral tribunal. Section 1032 subs. 3 applies mutatis mutandis. (20)

16-27 It is unclear how a tribunal is to be appointed when neither the applicable law nor the chosen rules contain a special provision. It
seems doubtful whether the provision in the arbitration agreement or arbitration rules that each party appoint one arbitrator can be
interpreted in a way that each “party” means each “side”. However, earlier case law in a number of countries shows that courts may not
have the same understanding of the principle of equality of parties as the French Cour de cassation in Dutco. (21) There are court decisions
which decide otherwise and apparently consider the equality of parties to be a principle from which they can derogate in advance before
the dispute has arisen. (22)
16-28 This can be justified if the multiparty situation arises out of the extension of an arbitration clause to other members of the same
group of companies. The close ties existing between the different members of the group can justify an obligation for those parties to agree
on a single arbitrator. In those cases, the selection of arbitrators has rarely been a problem in practice.
16-29 A multiparty situation may result from the joinder of a party after the tribunal has been established. As joinder requires agreement of
the parties one can presume this agreement extends to all aspects of the arbitration, including the tribunal as composed. If there is no such
agreement, joinder is impossible, even if all of them are parties to the same arbitration clause. This issue arose in ICC case no 5625 where
the respondent wanted to join another company which had signed the arbitration agreement. The tribunal rejected the application for a
joinder. (23) While the tribunal based its reasoning primarily on procedural issues relating to the naming of the parties in the request for
arbitration, the crucial point it would seem is that the third party never agreed to that type of arbitration. Although it must have been
aware of the possibility of multiparty arbitration its consent to the arbitration clause cannot be interpreted as a waiver of its right to be
involved in the composition of the arbitration tribunal.

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1.3 Other Issues
16-30 Even after the appointment of arbitrators, considerable problems may arise during the proceedings. This is especially the case where
the parties on one side have opposing interests or have raised cross-claims. (24) It must be determined in which order the parties'
submissions have to be presented. Do the several claimants or respondents have to submit their briefs all at the same time or can some of
them be allowed additional time to answer allegations of their co-parties? An alternative would be to allow split submissions to deal with
separate parts of the claim. There is no ideal solution to these problems. A tailor-made solution can only be found in party autonomy,
confirmed in a specific written instrument, such as the terms of reference in an ICC arbitration or in the procedural directions issued by the
tribunal.
16-31 The allocation of time at the hearings for each party to present its case must be determined. Does each party have the same amount
of time or must equality be guaranteed between the claimants and respondents different sides? Must each side first answer the other side
and then deal separately with different parties respective claims, or must all be presented at once? How can delay, which may result from
the involvement of several parties be avoided? What happens if one respondent brings a claim against another respondent? How are the
costs of the arbitration allocated between the parties?
16-32 It is rare that parties provide for such issues in the arbitration agreement. It is also virtually impossible to set out general rules on
how to deal with these issues apart from the guiding principle that the procedure adopted must ensure equal treatment for all the parties. (
25) The arbitration tribunal must regulate these issues and much will depend on the particular facts. (26)

16-33 An additional issue can arise in the context of company law where a number of disputes may affect all shareholders irrespective of
whether or not they were parties to the relevant proceedings. For example, decisions of a shareholders meeting can sensibly only be
annulled in relation to all shareholders and not only to those which participate in the annulment proceedings. Consequently national
company laws often extend the effects of the relevant court decision to shareholders which were not parties to the proceedings. Whether
these provisions are also applicable to arbitration awards, and if so under what conditions, or whether their non applicability even makes
the arbitration agreement inoperable, may depend on the organisation of the arbitration proceedings and the applicable law. In some
countries even if there is an arbitration agreement in the companies' bylaws or shareholder agreements, it may not be possible to arbitrate
these company law disputes or at least require particular contractual provision. (27) In other countries their referral to arbitration may not
be a problem despite the extension of the effects of the award to other shareholders. (28)

2 Multiparty Arbitrations Arising out of Separate or a Series of Contracts

16-34 In a typical construction and engineering contractual situation there will often be separate contracts between employer and main
contractor, main contractor and sub-contractor, employer and supplier, supplier and sub-contractor. When a dispute arises between two of
these parties there will be no direct contractual links to the other contracts. Each contract will have its own arbitration clause.
16-35 If disputes arise between an employer and a main contractor and which primarily relate to the work carried out by a sub-contractor,
the main contractor may have an interest in these disputes being resolved in a single arbitration to which the sub-contractor is a party or
which is binding on him. (29) Otherwise the main contractor faces the risk of exposure should the tribunals come to different conclusions.
For example, a tribunal in an arbitration with the employer may find that the work carried out does not meet the contractual standard and
hold it liable, but in the ensuing proceedings against the sub-contractor to recover damages for defective work, the second tribunal could
reach a different conclusion. By corollary, a tribunal could decide on a longer extension of time than a second tribunal.
16-36 The interest in having an arbitration with all parties concerned is not only limited to the main contractor. A sub-contractor who may
be bound by the outcome of the arbitration between the employer and the main contractor may therefore want to participate in that
arbitration. The employer may also be interested in having a second solvent party against which to enforce the award. (30)
16-37 The problem in such a situation is that due to the consensual nature of arbitration in general an agreement to arbitrate between all
parties is required. (31) Once a dispute has arisen it is rare that all parties will agree on a single multiparty arbitration. There will usually be
at least one party who sees advantages in separate proceedings. (32)
16-38 Whether a party can be compelled to participate in a single multiparty arbitration depends on the provisions in the various
contracts, the chosen arbitration rules and the applicable law. They may allow joinder of a party or provide for consolidation of different
arbitration proceedings. Consolidation means that several arbitrations which are pending or initiated are united into a single set of
proceedings before the same tribunal. Joinder is when a third party who is not a party to the arbitration agreement is joined as a party to
the arbitration proceedings.

2.1 Joinder and Intervention of Third Parties

16-39 Joinder of third parties or their intervention in the proceedings is a well known feature in litigation in state courts. For reasons of
efficient administration of justice national court rules allow the joinder of third parties, irrespective of whether all parties concerned agree.
The only requirement is, in general, that such joinder is necessary for reasons of procedural economy and the effective administration of
justice, since the cases involve the same issues and are closely related. The power to compel the parties to participate in those
proceedings stems from the national court's sovereign power.
16-40 The situation is completely different in arbitration. Since the jurisdiction of the tribunal is based on the agreement of the parties the
idea of statutory joinder or intervention appears to be in conflict with this basic principle of arbitration. With rare exceptions the
arbitration laws consider this principle of party autonomy to be so important as to outweigh any considerations of procedural efficacy.
Consequently, very few laws contain provisions which allow for a joinder or intervention against the will of any of the parties concerned.
Generally joinder is only possible if all parties involved consent.

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16-41 It is not sufficient that the parties to an arbitration agreement have, either in the agreement itself or otherwise, agreed for a third
party to be joined if that party does not agree to such a joinder. Furthermore, a third party wishing to intervene in arbitration proceedings
cannot do so without the consent of all parties to the arbitration.
16-42 In both situations it is not necessary that the parties consent at the time the request is made. Such consent may be given at an earlier
stage in the contract itself, for example by agreeing to arbitration under one of the few arbitration rules which allow for joinder or the
intervention of third parties. The consequence is that none of the parties can object when a third party wants to join with the consent of
another party.
16-43 For example, Article 22(1)(h) LCIA rules provides

(1) Unless the parties at any time agree otherwise in writing, the Arbitral 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 reasonable opportunity
to state their views;
…
(h) to allow, only upon the application of a party, one or more third persons to be joined in the arbitration as a party
provided any such third person and the applicant party have consented thereto in writing, and thereafter to make a
single final award, or separate awards, in respect of all parties so implicated in the arbitration.

16-44 It is noteworthy that Article 22(1)(h) requires the consent of the third party to be joined as well as of the party applying for a joinder. (3
3) It has a much narrower scope than the provisions providing for joinder and intervention in court proceedings which do not require such
consent. Its only effect is that the second party to the arbitration agreement does not have to expressly consent to the joinder. It has done
so by agreeing to the LCIA Rules. The decision whether to allow a joinder is taken by the tribunal which has discretion in this respect.
16-45 A narrower provision can be found in Rule 18 of the Arbitration Rules of the Geneva Chamber of Commerce and Industry (CCIG) which
provides

(1) If a respondent intends to cause a third party to participate in the arbitration, it shall so state in its answer and
shall state the reasons for such participation. The respondent shall deliver to the CCIG an additional copy of its
answer.
(2) The CCIG shall send the answer to the third party whose participation is sought, the provisions of Articles 8 and 9
being applicable by analogy.
(3) Upon receipt of the third party's answer, the CCIG shall decide on the participation of the third party in the
already pending proceeding, taking into account all of the circumstances. If the CCIG accepts the participation of the
third party, it shall proceed with the formation of the arbitral tribunal in accordance with Article 17; if it does not
accept the participation, it shall proceed according to Article 12.
(4) The decision of the CCIG regarding the participation of third parties shall not prejudice the decision of the
arbitrators on the same subject. Regardless of the decision of the arbitrators on such participation, the formation of
the arbitral tribunal cannot be challenged.

16-46 This provision only allows for a joinder of a third party by the respondent. The rationale is that the claimant initiated the proceedings
and could have named any party it wanted as a respondent from the outset. Furthermore, the request for a joinder must already be
contained in the reply to the statement of claim. At a later stage joinder is only possible with the consent of all parties concerned. (34) It is
noteworthy that it is the institution which decides first on the participation of a third party, however, without prejudice to the decision of
the arbitration tribunal. The tribunal will have the final say on a joinder or intervention.
16-47 Due to the inherent conflict between the consensual nature of arbitration and a statutory joinder not based on consent, the different
arbitration laws in general do not contain provisions dealing with the joinder of third parties or their intervention. The drafters of the Model
Law saw no need to include a specific provision. (35) The underlying rationale was that either the parties agree on a joinder so that no
further regulation is necessary or there will be no joinder.
16-48 A special provision dealing with the issue of a joinder can be found in the Netherlands CCP, Article 1045

(1) At the written request of a third party who has an interest in the outcome of the arbitral proceedings, the arbitral
tribunal may permit such party to join the proceedings, or to intervene therein. The arbitral tribunal shall send
without delay a copy of the request to the parties.
(2) A party who claims to be indemnified by a third party may serve a notice of joinder on such a party. A copy of the
notice shall be sent without delay to the arbitral tribunal and the other party.
(3) The joinder, intervention or joinder for the claim of indemnity may only be permitted by the arbitral tribunal,
having heard the parties, if the third party accedes by agreement in writing between him and the parties to the

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 arbitration agreement.
(4) On the grant of a request for joinder, intervention, or joinder for the claim of indemnity, the third party becomes a
party to the arbitral proceedings. Unless the parties have agreed thereon, the arbitral tribunal shall determine the
further conduct of the proceedings.

16-49 It is important to note that Article 1045(3) requires the consent of all parties for a joinder to be possible, so that despite all criticism
it is not comparable to the provisions allowing for a joinder in proceedings in the state courts. (36) The decision whether to allow the joinder
or not if all parties agree is taken by the arbitration tribunal.

2.2 Consolidation of Different Arbitrations

16-50 Consolidation of different arbitration proceedings also requires the consent of the parties. The only difference with joinder is that
with consolidation all parties have submitted to arbitration arising from different contracts. The issue is whether these arbitrations can be
consolidated into one set of proceedings to avoid inconsistent results.
a Arbitration agreement
16-51 The easiest way to facilitate consolidation is an agreement by the parties or a special provision in the arbitration clause. Such
agreements are rare in practice. (37) They are difficult to draft since they have to anticipate the possible disputes that may arise between
the parties concerned. (38) It is not surprising that none of the leading arbitration institutions has officially recommended a multiparty
arbitration clause providing for consolidation.
16-52 The clauses discussed usually are based on broad notions such as “related dispute” (39) which are complicated in practice. This leads
to questions of what constitutes the necessary connection: must it be a legal or economic, direct or indirect, strong or weak connection?
Furthermore it is not sufficient that the arbitration clause in one contract allows for a consolidation but the clauses of all contracts involved
must do so. Only then can there be consent of all parties affected by the consolidation.
16-53 An example of the problems encountered in drafting arbitration clauses allowing for the consolidation of separate arbitration
proceedings between different parties is provided by the decision of the House of Lords in Lafarge Redland v Shepard Hill (40) The case
arose out of the construction of a road. The main contract between the respondent and the employer contained a standard ICE arbitration
clause. According to the standard dispute resolution clause contained in the subcontract all disputes in connection with the subcontract
were to be finally settled by arbitration. Where those disputes also related to disputes under the main contract the main contractor had
the right to

require that any such dispute under this subcontract shall be dealt with jointly with the dispute under the main
contract in accordance with the provisions of clause 66 thereof. In connection with such joint dispute the sub-
contractor shall be bound in like manner as the contractor by any decision of the engineer or any award by an
arbitrator.

16-54 When the subcontractor declared its intention to initiate arbitration proceedings the general contractor gave notice under this
provision. Respondent applied to the court to challenge the validity of the notices given. In interpreting the procedure anticipated under
the clause, for which the parties submitted four different suggestions, the Court of Appeal concluded that a tripartite arbitration
proceeding was envisaged. The problem involved in this interpretation and clearly seen by the Court of Appeal was that the employer
under its contract with the general contractor could not be forced to take part in this proceeding since the arbitration clause did not
contain such an obligation.
16-55 This interpretation was upheld by the majority in the House of Lords. The two dissenting judges rejected this interpretation and one
including joint hearings. It interpreted the clause in such a way as to “request the contractor to represent the interest of the sub-contractor
in the proceedings before the engineer and the arbitrator under the main contract.” If the contractor does so in the observance of good
faith the sub-contractor is bound by the results.
16-56 It may be possible to interpret less explicit arbitration clauses as permissive of consolidation of proceedings. If all contracts
concluded in connection with a single economic venture between the different parties involved contain identically worded arbitration
clauses this may be an indication of consent to consolidation. The same may apply when the heads of agreement of a specific project
contains an arbitration clause to which the different contracts concluded in the execution of this heads of agreement refer. In both
situations the mere fact of an identical wording in itself is not conclusive. (41)
16-57 The question of multiparty arbitration on the basis of different arbitration clauses became an issue in the Andersen arbitration arising
out of the dissolution of the Andersen Organisation. (42) It consisted of Andersen Worldwide, the umbrella entity based in Geneva
responsible for co-ordinating the activities of all member firms, and more than 140 member firms located around the world which
constituted the Andersen Consulting and Arthur Andersen business units of the Andersen Organisation. When Andersen Consulting initiated
arbitration proceedings against Andersen Worldwide and Arthur Andersen to be relieved of its contractual obligation to pay hundreds of
millions of dollars in transfer payments annually, the respondents challenged the jurisdiction of the sole arbitrator. They relied on the fact
that though the member firm parties' contract was supposed to be based on a standard form contract, the arbitration clauses differed
since many of the member firms had not yet updated their particular contracts to include the most recently approved arbitration clause.
While earlier forms did not provide for ICC arbitration, or at least not when the place of arbitration was in Switzerland, the most recent
version of the arbitration clause on which the claimants relied provided for ICC arbitration. (43)

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16-58 In an interim award the sole arbitrator assumed jurisdiction basing his decision on an intention of the parties to be bound by a single
arbitration clause. Principles of good faith prevented the respondents from relying on the differences in wording. The respondents applied
to the Swiss supreme court to have the award set aside. The supreme court rejected this application and confirmed the award on
jurisdiction. It based its decision on principles of agency, incorporation by reference, waiver, estoppel and good faith which taken together
led it to conclude that the whole dispute should be resolved in a single arbitration despite the existence of at least three types of
differently worded arbitration clauses. The court held that on the basis of the mentioned theories the most recent arbitration clause was
binding on all parties. Interesting in this respect is that the court found the doctrines to be applicable not on the basis of a particular
national law but as “general principles of law.”
16-59 In general, however, differences in such substantial matters as the chosen seat or the applicable law usually exclude consolidation. (
44) Even where all contracts involved are concluded within the framework of the same venture between the various parties involved, the
arbitration tribunal has to verify its jurisdiction in relation to each party and to each issue. It cannot assume a global jurisdiction for all
contracts concluded for that venture.
16-60 This is well illustrated by a decision of the French Cour d'appel de Versailles following the break up of the Iranian-French nuclear co-
operation in the aftermath of the Iranian Revolution. (45) The various French claimants had based their application on two arbitration
clauses contained in different contracts. The clauses differed as one provided for the seat of arbitration in France and the application of
French law, while the other was silent on these issues. The arbitration tribunal assumed jurisdiction at least in relation to some of the
parties involved and rendered an award in a unified arbitration. On an application by the Iranian party, the French court annulled the
award. It rejected the view that the tribunal could assume jurisdiction over parties or claims not covered by a specific arbitration clause on
the basis of a general will of all parties in a project to submit to arbitration. (46)
16-61 In all these cases the question of whether consolidation is possible depends in the end on an interpretation of the various arbitration
agreements. It is therefore up to the arbitration tribunal to decide whether or not to consolidate since the issue falls within its
competence-competence.
b Arbitration rules
16-62 Consent to consolidation can also arise from the chosen arbitration rules. Some rules contain special provisions for consolidation
under certain circumstances. (47) A good example is Article 11 CEPANI Rules

When several contracts containing the CEPANI arbitration clause give rise to disputes that are closely related or
indivisible, the Appointments Committee or the Chairman of CEPANI is empowered to order the joinder of the
arbitration proceedings.
This decision shall be taken either at the request of the Arbitral Tribunal, or, prior to any other issue, at the request of
the parties or the most diligent party, or even on CEPANI's own motion.
Where the request is granted, the Appointments Committee or the Chairman of CEPANI shall appoint the Arbitral
Tribunal that shall decide the disputes that were joined. If necessary, it shall increase the number of arbitrators to a
maximum of five.
The Appointments Committee or the Chairman of CEPANI shall make its decision after having summoned the parties,
and, if need be, the arbitrators who have already been appointed.
They may not order the joinder of disputes in which an interim award, or an award on admissibility or on the merits
of the claim, has already been rendered.

16-63 The first sentence clarifies that consolidation is only possible if all contracts contain a CEPANI arbitration clause. Only then can all
parties involved be assumed to have consented to a consolidation. These clauses need not be identical. However, if one contract contains a
different (e.g. institutional or ad hoc) clause those parties can resist consolidation if the latter is not provided for by the applicable
arbitration law. Furthermore, it is the institution which decides on the consolidation of separate proceedings and not the tribunal.
16-64 A slightly different procedure can be found in the Zurich Arbitration Rules. For each arbitration in a multiparty situation the same
three member tribunal is appointed. The arbitrators can then decide whether or not to consolidate the different arbitrations. Article 13
provides

If there are several claimants or several respondents, or if the respondent, within the deadline for the answer, files a
claim with the Zurich Chamber of Commerce, against a third party based on an arbitration clause valid according to
Article 2 subs. 2 an identical three-men Arbitral Tribunal is appointed according to Article 12 subs. 3 for the first and
all other arbitrations.
The Arbitral Tribunal may conduct the arbitrations separately, or consolidate them, partly or altogether.

16-65 Although not as clear as the CEPANI rule, the Zurich rule requires that all contracts concerned contain an arbitration clause in favour
of the Zurich Chamber of Commerce as this could be interpreted as consent to that type of procedure. However, it is doubtful whether the
mere reference to a set of arbitration rules which contain comparable provisions on consolidation or joinder can be seen as a consent of
the parties to multiparty arbitration. (48) The decision on consolidation is split between the institution, which decides on the appointment
(49)
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of an identical tribunal, and the tribunal which decides whether or not to consolidate the proceedings. (49)
c Arbitration laws
16-66 If no agreement exists between the parties, consolidation can only be based on the law governing the arbitration. However, given that
consolidation of arbitration proceedings without the consent of the parties seems to be contrary to the fundamental principle of party
autonomy, very few arbitration laws provide for statutory consolidation. In general, if provisions on consolidation are contained at all, they
usually require the consent of all parties involved.
16-67 This is apparent in the provision of the English Arbitration Act dealing with consolidation and concurrent hearings. Section 35
provides
(1)The parties are free to agree
(a)that the arbitral proceedings shall be consolidated with other arbitral proceedings, or
(b)that concurrent hearings shall be held, on such terms as may be agreed.
(2)Unless the parties agree to confer such power on the tribunal, the tribunal has no power to order consolidation of proceedings or
concurrent hearings. (50)
16-68 Although the Model Law does not deal with the issue at all, (51) a number of countries, when adopting the Model Law, included
provisions on consolidation. Like the English provision, these rules generally require that all parties concerned agree to consolidation or
concurrent hearings. Then the courts or the arbitration tribunal have the powers necessary to overcome difficulties in appointing the
arbitrators and organising the proceedings. For example, the International Commercial Arbitration Act of British Columbia provides in
section 27(2)

Where the parties to 2 or more arbitration agreements have agreed, in their respective arbitration agreements or
otherwise, to consolidate the arbitrations arising out of those arbitration agreements, the Supreme Court may, on
application by one party with the consent of all the other parties to those arbitration agreements, do one or more of
the following:
(a)order the arbitrations to be consolidated on terms the court considers just and necessary;
(b)where all parties cannot agree on an arbitral tribunal for the consolidated arbitration, appoint an arbitral tribunal
in accordance with section 11 (8);
(c)where all parties cannot agree on any other matter necessary to conduct the consolidated arbitration, make any
other order it considers necessary. (52)

16-69 Similar provisions can be found in a number of state arbitration statutes in the US. (53) In Australia (54) the powers are not conferred
on the courts but on the arbitration tribunal. (55) Sometimes distinctions are made between arbitrations pending before the same tribunal
and those pending before different tribunals and under some laws the provisions are limited to arbitrations between the same parties. (56)
16-70 Since these rules require an agreement of the parties for consolidation they are not really legislative solutions comparable to these
applicable in litigation where typically no consent of the parties is required. Such a rule is, however, contained in the Netherlands
Arbitration Law. Article 1046 provides

(1) If arbitral proceedings have been commenced before an arbitral tribunal in the Netherlands concerning a subject
matter which is connected with the subject matter of arbitral proceedings commenced before another arbitral
tribunal in the Netherlands, any of the parties may, unless the parties have agreed otherwise, request the President of
the District Court in Amsterdam to order a consolidation of the proceedings.
(2) The President may wholly or partially grant or refuse the request, after he has given all parties and the arbitrators
an opportunity to be heard. His decision shall be communicated in writing to all parties and the arbitral tribunals
involved.
(3) If the President orders consolidation in full, the parties shall in consultation with each other appoint one
arbitrator or an uneven number of arbitrators and determine the procedural rules which shall apply to the
consolidated proceedings. If, within the period of time prescribed by the President, the parties have not reached
agreement on the above, the President shall, at the request of any party, appoint the arbitrator or arbitrators and, if
necessary, determine the procedural rules which shall apply to the consolidated proceedings. The President shall
determine the remuneration for the work already carried out by the arbitrators whose mandate is terminated by
reason of the full consolidation.
(4) If the President orders partial consolidation, he shall decide which disputes shall be consolidated. The President
shall, if the parties fail to agree within the period of time prescribed by him, at the request of any party, appoint the
arbitrator or arbitrators and determine which rules shall apply to the consolidated proceedings. In this event the
arbitral tribunals before which arbitrations have already been commenced shall suspend those arbitrations. The
award of the arbitral tribunal appointed for the consolidated arbitration shall be communicated in writing to the

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 other arbitral tribunals involved. Upon receipt of this award, these arbitral tribunals shall continue the arbitrations
commenced before them and decide in accordance with the award rendered in the consolidated proceedings.

16-71 The Dutch construction industry was the driving force behind the inclusion of this rule and is also the main user of the provision. On
average three requests for consolidation are made per year and are usually granted. (57) In these cases it is not the arbitration tribunal that
orders consolidation but the courts.
16-72 Comparable provisions exist in the arbitration laws for domestic arbitration in Hong Kong (58) and in the various Australian States and
Territories. (59) Furthermore Article 1126 NAFTA contains a special provision allowing for consolidation of different arbitration proceedings. (
60)

16-73 In addition, there is significant opinion in Switzerland which suggests that consolidation of arbitrations can be allowed under Article
185 PIL which provides for court assistance in arbitration. (61)
16-74 It is hard to reconcile these provisions with the principle of party autonomy which lies at the heart of commercial arbitration. Few
parties will be aware of those provisions when selecting the place of arbitration so that the determination of the place can hardly be seen
as a consent to consolidation. There is concern that parties may have to engage in arbitrations with other parties with whom they never
contracted. Furthermore, due to the involvement of multiple parties these proceedings may differ considerably from what was agreed. (62)
Whether the perceived advantages of consolidation justify such an intrusion on party autonomy seems questionable. (63) The possibility of
the parties excluding consolidation does not overcome this difficulty. Since few parties are aware of this possibility of consolidation they
would have to agree an exclusion after the dispute has arisen. At that time it will be hard to agree as the parties will have different views
concerning conflicting awards and delay of proceedings.
16-75 One other factor against consolidation without consent is confidentiality. A party may be willing to reveal its documents to a party
with whom it contracted but not to a third party joining an arbitration, in particular, if that third party is its competitor or has some adverse
interests. (64)
16-76 These objections are reflected in the practice of arbitration tribunals and state courts. In the vast majority of cases consolidation was
only effected if agreed by the parties or when a special provision allowed for consolidation in arbitration. (65) A certain reservation must,
however, be made with regard to the US practice. Although the Federal Arbitration Act does not contain a rule providing for consolidation,
some US courts have done so relying on Rule 42(a) of the Federal Rules of Civil Procedure providing for consolidation in litigation.
16-77 In 1975 the Court of Appeal for the Second Circuit in Compania Espanola de Petroleos SA v Nereus Shipping SA dealing with a contract of
affreightment for which a guarantee was given, consolidated the arbitrations between the shipowner and the guarantor and between the
shipowner and the charterer. In rejecting the respondent's objection to consolidation the court held

We agree that Fed. R. Civ P., Rules 42 (a) and 81 (a) (3), are applicable. Moreover, we think the liberal purpose of the
Federal Arbitration Act clearly requires that this act be interpreted so as to permit and even encourage the
consolidation of arbitration proceedings in proper cases, such as the one before us. (66)

16-78 This ruling followed by some district courts (67) has been rejected by several courts of appeal which required the parties' consent for
consolidation. (68) In 1993 the Court of Appeal for the Second Circuit in Government of the United Kingdom of Great Britain v Boeing Co (69)
abandoned its earlier ruling and denied the applicability of Rule 42(a) to arbitration agreements. In dealing with the arguments of the
plaintiff the court stated

The United Kingdom also makes much of the inefficiencies and possible inconsistent determinations that may result if
the United Kingdom/Boeing and United Kingdom/Textron arbitrations are allowed to proceed separately. Although
these may be valid concerns to the United Kingdom, they do not provide us with the authority to reform the private
contracts which underlie this dispute. If contracting parties wish to have all disputes that arise from the same factual
situation arbitrated in a single proceeding, they can simply provide for consolidated arbitration in the arbitration
clauses to which they are a party.

d Other possible consolidation solutions

16-79 In the light of the difficulties concerning consolidation and joinder it is not surprising that practice has searched for other solutions to
the problems of multiparty arbitration. One way that the threat of conflicting decisions can be minimised is by appointing the same
arbitrators in the different arbitrations. This requires the different arbitration agreements to provide that the same arbitrators should be
appointed in all arbitrations relating to contracts concluded for the same purpose. (70) This is a practical, not a legal consolidation. Even
when such arbitration agreements do not exist courts have expressed their willingness to appoint the same arbitrators for different
arbitrations arising out of contracts concluded for a common purpose. Lord Denning, regretting that the court could not order a
consolidation of the arbitrations, stated in the Adgas case

It seems to me that there is ample power in the court to appoint in arbitration the same arbitrator. It seems to me
highly desirable that this should be done so as to avoid inconsistent findings. (71)

16-80 This approach was also adopted in Iran-US Claims Tribunal where the President of the Tribunal could refer cases involving the same
(72)
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preliminary or main issue which were pending before different Chambers to the same Chamber. (72) However, this solution might face
considerable difficulties where the arbitrators are not appointed by the same appointing authority but by the parties. Conflicting decisions
will primarily concern the party which is involved in both arbitrations. Other parties may give more weight to their right to nominate or
appoint an arbitrator in whom they have confidence than the risk of conflicting decisions. A person appointed by a party in one arbitration
may not enjoy the trust of the party in the other arbitration. In many cases a party may intentionally and legitimately decide to appoint a
different arbitrator in the related case. If not provided in the arbitration agreement none of the parties could be forced to appoint an
arbitrator who would also be suitable for the other arbitration. (73)
16-81 Another possible way forward is to hold concurrent hearings for the connected parts of the proceedings. Some arbitration rules, for
example, the LMAA rules provide for concurrent hearings, and even regulate the admissibility of evidence used in one set of proceedings in
other proceedings. (74)
16-82 The Supreme Court of New South Wales in Aerospatiale v Elspan et al. (75) even considered extending this approach to cases where the
arbitration proceedings were concurrent to court proceedings. To avoid conflicting decisions in the parallel proceedings the court assumed
that under Part 72 of the Supreme Court Rules it could in the court proceedings

appoint a person, agreed as an arbitrator in respect of some issues in dispute between particular parties, as referee
to hear and report to the court upon associated matters in dispute between the same parties, and additional parties.
The court also has a power to fix the hearing of that reference at the same time as the arbitration (Part 72 r2 and r8).
Equally it has a power to give directions to regarding the conduct of an arbitration within the purview of the
Commercial Arbitration Act 1984 (Sect. 47). That includes a power to direct when the arbitration is to be heard. (76)

16-83 Another solution which is found in practice is to stay one set of proceedings until the other has been terminated. (77) That allows the
tribunal in the second arbitration at least to take into account the solution reached in the first set of proceedings. However, this has the
disadvantages of considerably delaying any resolution of the dispute in the second set of proceedings and breaching the privacy and
confidentiality of the arbitration process. (78)
16-84 A particular solution for multiparty situations is followed in the commodity trade with only one arbitration for a string or chain
contract. Goods are often sold to a purchaser who then passes them on down a line of intermediaries until it reaches the final recipient to
whom the goods are physically delivered. In such a situation disputes as to the quality of the goods do not have to be arbitrated up the
chain in a number of arbitrations. Rather, the recipient of the goods can bring the arbitration against the original seller, and the result will
bind all other parties. This prevents conflicting awards within the chain and saves money and time. (79) The same approach can be found in
certain maritime arbitrations concerning the charter and the different sub-charters of a vessel which is allegedly not fit for purpose. (80)
16-85 While all these solutions are geared towards synchronising the different arbitrations, some national courts have come to the
conclusion that arbitration agreements are inoperative in such multiparty situations. (81) Accordingly, such disputes are to be decided in
the state courts where joinder and consolidation is possible. The argument is that the parties by inserting an arbitration clause in their
contract opted for a final and complete solution of the ensuing disputes through arbitration. In multiparty situations a second set of
arbitration proceedings may be necessary so the arbitration clause is not able to provide the final solution, and this renders the arbitration
agreement inoperative. This argument misinterprets the notion of “inoperative” under Article II(3) New York Convention and the parties'
intention, and has found little support in the courts. (82)

3 Consolidation of Different Arbitrations Between the Same Parties

16-86 At first sight the problems of whether a consolidation of separate proceedings between the same parties in multicontract situations
is possible seems to be comparable to those in multiparty situations. However, considerable differences exist.
16-87 Most of the objections raised against consolidation of arbitrations arising out of separate contracts involving different parties are not
totally relevant to consolidation of arbitrations in a two-party context. Issues of confidentiality do not arise, nor are parties forced into
arbitrations with third parties with whom they may not have entered into arbitration agreements. (83) Also the problems involving
appointment of arbitrators are greatly reduced. Both parties can still appoint an arbitrator of their choice and are only restricted in so far
as they cannot appoint different arbitrators for each arbitration – though there are situations where parties do not wish to appoint the
same arbitrator for the two arbitrations. Furthermore, the procedure adopted by the arbitration tribunal in consolidated two-party
arbitrations may be closer to the procedure actually foreseen by the parties than it is in consolidated multiparty arbitration. (84)
16-88 In the light of these differences consolidation in bi-party, multicontract situations pose fewer problems. They are provided for in
some arbitration rules. Article 4(6) ICC Rules allows, in limited circumstances, consolidation on the request of one party.

When a party submits a Request in connection with a legal relationship in respect of which arbitration proceedings
between the same parties are already pending under these Rules, the Court may, at the request of a party, decide to
include the claims contained in the Request in the pending proceedings provided that the Terms of Reference have
not been signed or approved by the Court. Once the Terms of Reference have been signed or approved by the Court,
claims may only be included in the pending proceedings subject to the provisions of Article 19. (85)

16-89 Whether an arbitration clause in one contract also covered disputes arising under a closely related but separate contract was an
issue in ICC case no 5989. (86) The dispute concerned a series of contracts in connection with the reorganisation of a fuel distribution

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network. The claimant had concluded with the first respondent, a state organisation, a Basic Agreement under which the relevant contracts
should be concluded. The agreement contained an arbitration clause and provided inter alia that the respondent had the right to purchase
any equipment imported into the country upon termination of any of the more specific contracts. When the first contract was terminated
the second respondent, due to an internal reorganisation, took over the functions of the first respondent and entered into a purchase
agreement with the claimant which also provided for arbitration. When disputes arose relating to the purchase agreement, as well as the
Basic Agreement, the claimant initiated arbitration proceedings against both respondents. The second respondent contested jurisdiction
since it did not consider itself bound by the arbitration clause in the Basic Agreement. The tribunal held that the second respondent was
the successor of the first respondent and therefore bound by the arbitration clause in the Basic Agreement. On the issue of hearing all
disputes in one arbitration the tribunal said

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 connected 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 clauses. 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. (87)

16-90 Where a party is seeking consolidation in an ICC arbitration it should request this at the outset from the ICC court. However, this does
not prevent a tribunal from deciding a consolidation request. Consolidation can only take place after that by agreement of all the parties.

4 Guidelines as to the Appropriateness of Multiparty Arbitration

16-91 Where multiparty arbitration is legally possible and requested by one of the parties or potential parties the question arises whether
the arbitration tribunal or the competent institution or court should make use of their power to allow for it. Although each case will turn on
its specific facts certain guidelines can be given.
16-92 A multiparty arbitration is desirable and should be ordered if:
•It serves procedural economy, i.e. it saves time and money.
•It reduces the risk of inconsistent awards.
•It is fair and equitable in order to facilitate fact-finding and the comprehensive presentation of legal and factual positions.
•It is appropriate for purposes of privacy and confidentiality.
•The parties involved can have equal influence on the composition of the tribunal or if the selection of arbitrators is left to an appointing
authority.
16-93 By corollary, multiparty arbitration should not be ordered if:
•Two arbitration tribunals have been constituted. (88)
•One of the parties wishes to appoint different arbitrators for the different arbitrations.
•It is apparent from the outset that the parties will not co-operate and will use every possible means to disrupt and delay the multiparty
arbitration.
•The award will be vulnerable to challenges and anti-enforcement actions.

5 Problems of Enforcing Awards in Multiparty Arbitration

16-94 There is a real issue whether an arbitration award rendered in multiparty proceedings can be enforced. Under the New York
Convention there are three fundamentals for enforcement. First, the parties must have agreed to submit their differences to arbitration.
Second, the arbitrators must not have exceeded their authority. Third, the conduct of the arbitration must be fair.
16-95 Where the agreement is between two parties, they are the legitimate parties to the arbitration. If a third party is joined, or another
dispute or arbitration is consolidated to the first arbitration, this may violate the fundamental agreement between the two parties to
submit their disputes to arbitration.
16-96 Whether the award against or in favour of the third party joined to the arbitration, or involving the party or parties to the
consolidated arbitration, can be enforced, will depend on whether there was agreement of all the parties concerned to the joinder or
consolidation. (89) If the parties have all agreed on the joinder or consolidation, the award should be enforceable. However, where a
tribunal, an institution, appointing authority or a national court has authority to order joinder or consolidation the issue is far from clear.
16-97 It is doubtful whether an award arising out of consolidated arbitration proceedings would be enforceable under the New York
Convention. The expansion of multinational arbitrations has not undermined the fundamentals of party autonomy and the New York
Convention. The most obvious basis for refusal to enforce an award would be the absence of an appropriate arbitration agreement between
the parties.
16-98 Article IV(1) New York Convention requires, as a precondition for enforcement, that the arbitration agreement be filed with the court;
this will show who the parties were to the arbitration agreement. The New York Convention allows a court to refuse enforcement of an award
(90) (91)
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if a party was unable to present its case, (90) or the composition of the tribunal or the procedures were not as agreed. (91) To overcome this
situation, tribunals and institutions should encourage the parties to record their agreement to joinder or consolidation. This can be in the
terms of reference or in some other document, or the tribunal can record it in the procedural directions or other early procedural decisions.
16-99 Arbitrators must always be careful to ensure that they treat all the parties equally. In reaching conclusions in a dispute between two
parties, the tribunal should not be influenced by extraneous evidence to the dispute from a third party, especially if one party has not
been able, or has refused or failed, to refute or respond to claims on the basis that the third party is not properly a party to the arbitration.
The tribunal's jurisdiction is properly prescribed by the terms of the agreement to arbitrate and must not make decisions or consider issues
outside that scope. If the tribunal does go beyond its authority it could provide a basis for a court to refuse enforcement of the award under
Article V(1)(c) New York Convention.

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