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American Review of International Arbitration - ARIA
ARIA Vol. 4 No. 4 1993
The court ordered consolidation of separate but related arbitral proceedings is a topic that has received an increasing amount of attention over the past two decades. The growing complexity of modern commercial contracts and business relationships has given rise to multi-party disputes apparently incapable of satisfactory resolution under the traditional arbitral mechanism.
When something "goes wrong" with a contract, there are typically several parties either affected by, or ultimately responsible for, the mishap. Where the contract or contracts call for disputes arising under them to be arbitrated (as is increasingly becoming the case), the most logical and efficient solution would appear to be -- in theory, at least -- to have a single tribunal review all the relevant facts, evidence and testimony. The practical dilemma, however, arises where one party is unwilling, for whatever reason, to have his arbitration joined with another. Because the concept of consent is central to arbitration, convenience must be weighed against preservation of party autonomy.
As used in this Note, the term consolidation refers not only to a procedure, but to a judicial interim remedy of sorts as well. One observer has defined consolidation (narrowly) as the "forced joinder of what would otherwise be separate [arbitral] proceedings." Consolidation of arbitrations is appropriate where "separate proceedings . . . would involve the same subject matter, issues and defenses."
In practice, the issue of consolidation as a judicial "remedy" will only arise when several parties to the same transaction or series of contracts have separately agreed to arbitrate their disputes, but when one or more refuses to allow
Marc F. Guarin - J.D. Candidate, Columbia University School of Law, 1995.