1. The problems relating to multiparty arbitration have been dealt with in many arbitral awards and the literature on the subject is very extensive. The most comprehensive and well-documented recent study of the various aspects of the question is to be found in an article by Professor Bernard Hanotiau, published in June 2001, which examines the legal problems - both substantive and procedural - encountered by parties and arbitrators in multicontract, multiparty and multi-issue arbitrations. 1 Despite years of discussions, the disappointing conclusion is that, barring a few exceptions, no satisfactory solutions have been found to difficulties that national courts regularly face and solve easily. The purpose of this article is not to revisit these well-known issues, but to try to answer a basic question: Is the apparent inability of arbitration to cope satisfactorily with the problems related to multiparty disputes the result of the fundamental characteristics of the institution or of inadequate wording in the arbitration rules or arbitration clauses? If it is due to the first-mentioned cause, then one has to admit that the arbitration agreement has its limits, even if these are offset by considerable advantages, especially at an international level. Yet, do these limits really exist and are they inevitable?

2. In order to assess whether the considerable difficulties encountered in multiparty disputes are due to the very nature of arbitration, it is first necessary to eliminate problems often linked to multiparty disputes but which are not inherent to them, such as the binding effect of an arbitration clause upon a non-signatory party or the application of an arbitration clause in a given contract to other contracts that form part of the same economic operation. Although these difficult problems are commonly encountered in multiparty arbitration, they may, and often do, arise in arbitrations involving only two parties.

The observations that follow are based on several actual experiences. In order to facilitate the discussion, various aspects of these different experiences have been arbitrarily attributed to a single construction contract ('the Contract') and its arbitration clause. The parties to the Contract are a joint venture comprising three members, A (French), B (German) and C (Italian), as contractor, and another joint venture comprising two members, D and E (both Egyptian), as subcontractor. The Contract includes a straightforward ICC arbitration clause worded as follows:

All disputes arising out of or in connection with the present Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. [Page26:]

The Arbitral Tribunal shall be seated in Paris and shall apply Egyptian law.

Both joint ventures are contractual joint ventures, without legal personality. According to the Contract, the members of each joint venture are jointly and severally liable.

3. If a dispute occurs between the contractor and its subcontractor and A, B and C file a request for arbitration against D and E, no insuperable difficulties arise. Under the 1988 ICC Rules of Arbitration, the constitution of the arbitral tribunal might have been hazardous in the event of a refusal by D and E to nominate a common arbitrator, as was illustrated by the Dutco case. The French Court of Cassation decided in that case that the equality of the parties in the appointment of arbitrators is a principle of international public policy that cannot be waived before the dispute has arisen. 2 However, the matter was solved with the 1998 revision of the ICC Rules of Arbitration, Article 10 of which, currently applicable, reads:

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.

Thus, if D and E refuse to nominate an arbitrator jointly and no other method of constituting the arbitral tribunal has been agreed between the parties, the ICC International Court of Arbitration could directly appoint the three members of the arbitral tribunal.

4. This is a good example of a difficulty which, although typical of contracts involving more than two parties, may be overcome by appropriately drafted arbitration rules or arbitration clauses. A comparable solution could, for instance, be included in an agreement providing for ad hoc arbitration. Failing tailor-made solutions in the arbitration agreement, there is a risk of deadlock, at least in France, unless the presiding judge of the Paris Tribunal de grande instance considers himself empowered to constitute the arbitral tribunal pursuant to Article 1493 of the French New Code of Civil Procedure. 3 In all events, the important point is that this difficulty is not grounded in the very substance of arbitration but is merely a question of implementation for which, as ICC experience has shown, appropriate adaptations can be made.

5. The situation would be much more complicated if A alone were to start arbitration proceedings and were to direct its request for arbitration against D only. This is not pure speculation, as experience shows that such situations do occur. B and C may wish to maintain good relations with D and/or E, for political reasons or in order to continue to have business dealings with them, and arbitration in that case could cause unwanted antagonism. Likewise, and for similar reasons, A may wish to maintain good relations with E, but not necessarily with D, especially if A is convinced that the responsibility for the subcontractor's alleged breach of contract lies with D. The question of whether the terms of the joint venture between A, B and C allow A to start an arbitration alone is irrelevant, since the matter is not governed by an arbitration clause in [Page27:] that agreement. A therefore files its request for arbitration against D, regardless of whether it is entitled to do so under the joint venture agreement.

6. Such a scenario raises a number of questions with respect to the arbitration agreement in the Contract. These include the following:

- Is A entitled to act without its two other co-venturers B and C?

- Is A entitled to act against D only? If so, may A start a second arbitration against E later on?

- Once A has started the arbitration against D, may B and C intervene as additional claimants and, if so, may they join E in the arbitration?

- May D file a counterclaim not only against A, but also against B and C?

- May D file a cross-claim against E, in particular if it believes E to be responsible for the breach alleged by A? If so, may E file a claim against A, B and C or any one of them?

- Irrespective of the action undertaken by D, may E intervene in the arbitration?

These various questions are of great practical significance because of the joint and several liability of the members of each joint venture. Even if the Contract were not to make them jointly and severally liable, the indivisible nature of the respective obligations of the contractor and the subcontractor would have similar consequences. As a result, each member has an interest in the outcome of an arbitration started by or against any other member. Under many laws, including French law, a claim (or counterclaim) filed against any of the joint and several debtors will interrupt the time limitation with respect to all of the debtors, will cause interest to accrue against them all, and, if a decision is rendered against one of them, it may be enforced against any of them. In national courts, solutions are available through appropriate procedures which allow a person with a genuine interest in a case to intervene voluntarily in ongoing proceedings to which it was not called, or a party to the proceedings to request the compulsory intervention of a third party when it has a justifiable interest in doing so.

7. It is generally believed that such procedures are not available in arbitration if the would-be intervening party is not a party to the arbitration agreement. Accordingly, the Paris Court of Appeal has held that:

arbitration rules, which are based on the consensual nature of an arbitration clause, do not allow the effects of a disputed agreement to be extended to third parties, who are outsiders to the contract, and preclude any proceedings compelling a third party to intervene; hence, difficulties arising from indivisible or related cases can be solved only on a contractual level. 4

This solution, based on the consensual nature of arbitration, is fully understandable. However, it may be criticized, at least as far as international arbitration is concerned. Bernard Hanotiau has suggested that the time has come 'to bury once and for all [the] obsolete principle of restrictive interpretation of arbitral clauses' since '[t]he total liberalisation of arbitration in many western countries, organised by the local Parliaments, is clear evidence that even the legislature no longer views arbitration as a second-class method of dispute settlement, but simply an additional one, perhaps more appropriate for certain categories of disputes, and much needed to alleviate the plight of [Page28:] overburdened national courts'. 5 This view is further supported by the fact that in some jurisdictions such as the Netherlands and the United States the consolidation of arbitration proceedings is possible, 6 although it remains to be seen how workable it is in practice at an international level.

Whatever the effects of the consensual nature of arbitration are or should be, they cannot be relied upon to prevent a party that has signed the arbitration agreement and is therefore bound by it from intervening or being compelled to intervene in the proceedings. However, such intervention, whether voluntary or compulsory, appears to be problematic under the ICC Rules of Arbitration. Taking these rules as an example, consideration will first be given to the objectively regrettable obstacles to such intervention (I) and then to the question of whether such obstacles are surmountable or are due to the very nature of arbitration (II).

I. Obstacles to voluntary and compulsory intervention under the ICC rules

8. It may be posited that these problems can arise only if each party to an arbitration agreement is entitled to act alone against another party. In our example, it is therefore necessary for A to be entitled to act alone against D only. Were this not to be the case, B and/or C could claim the right to take part in the arbitration alongside A, and D could demand the presence of B and C in order for A's initial action to be valid. Unfortunately, the matter is less simple: in addition to the substantive question of whether A is entitled to act alone, procedural hurdles have also to be overcome.

9. The substantive question is illustrated by the preliminary award rendered in 1986 in ICC case 5029. 7 In that case, the factual situation was not unlike our hypothetical example. It likewise involved an international construction contract. The contractor was a joint venture X consisting of a French company, A, its wholly-owned French subsidiary, B, and two Egyptian companies, C and D. A and B filed a request for arbitration against the employer, and shortly thereafter terminated the joint-venture agreement with the Egyptian companies C and D on the ground that these companies had failed to contribute financially to the joint venture. The defendant employer contended that the arbitral tribunal had no jurisdiction because the French companies A and B lacked the capacity to commence the arbitration, as they had not been specifically authorized to do so by the other partners in the joint venture.

The arbitral tribunal rejected the employer's objections on the grounds that according to the terms of the construction contract and under Egyptian law the contractor's obligations and the employer's obligations were respectively indivisible. The arbitral tribunal stated as follows:

As to the Contractor's obligations, it was not intended by the parties that each of the four parties to joint venture X is to be responsible for the completion of a certain portion of the works under the Contract. To the contrary, the Contract stipulates that the four parties to joint venture X are - jointly and severally - responsible for the completion of the whole of the works to be carried out thereunder. Similarly, the obligations of the Employer under the Contract were intended to be indivisible. 8

It went on to add that Article 302 of the Egyptian Civil Code provides:

When there are several creditors in respect of an indivisible obligation or several heirs of a creditor in respect of such an obligation, each of the creditors or heirs may [Page29:] demand the performance of its entirety of the indivisible obligation. If one of the creditors or the heirs contests such a demand, the debtor shall effect payment to all the creditors together or deposit the object of the obligation in Court.

Co-creditors will have remedies against a creditor who has received payment, each one for his share. 9

Consequently, the arbitral tribunal came to the following conclusion:

It should be pointed out that if one creditor demands performance of an indivisible obligation, he does legally so on behalf of all creditors, although he does not need the authorisation of his co-creditors for making the demand. If the creditor has received payment, his co-creditors have recourse against that creditor (Art. 302(2) of the Egyptian Civil Code, quoted . . . above). But that is an internal affair amongst the creditors (i.e., the parties to joint venture X) which is of no concern to the debtor (i.e., defendant). 10

Thus, in our example, if Egyptian law were applicable, it would be found that A could act alone against D only. Incidentally, a similar solution would apply under French law, to which Egyptian law is closely related as far as contractual matters are concerned. However, had the provisions of the Contract been drafted differently or a law offering different solutions been applicable to it, the arbitral tribunal's position might have been different.

10. This is all very well, but for any of these decisions to be reached, a discussion on the substance of the matter must be held in front of the arbitral tribunal. This does not raise any particular difficulty when it is the defendant that objects to the claimant's entitlement to act alone. If necessary, the other parties to the contract may be called as witnesses. Hence, in our example, D would object to A's acting alone and would ask B and C to testify in front of the arbitral tribunal. They might well refuse to do so, but that is a problem that could be encountered in other kinds of cases too. Its solution depends on the arbitrators' power to summon a recalcitrant witness under the applicable arbitration law and the cooperation they may expect from state courts.

The situation is quite different, however, if the objection to A's acting alone is made by B and/or C, in order to express a different viewpoint on behalf of the contractor joint venture. They may have good reasons for doing so, believing, for instance, that the sub-contractor joint venture is not responsible for the difficulties encountered in the performance of the works, but blaming A instead and preferring not to start a conflict in which there is little chance of success. In particular, if they were co-creditors and co-debtors of an indivisible obligation under the applicable law, A's action would be deemed to have been filed on their behalf and the resulting award would be enforceable against them.

Under a traditional interpretation of the ICC Rules of Arbitration, B and C have no access to the arbitration as they are neither claimant nor respondent. Although parties to the arbitration agreement, they have no procedural status. It is the exclusive privilege of the claimant to determine who are the parties to the arbitration. 11

11. This basic privilege of the claimant in ICC arbitration was clearly explained in an award of 1987, in case 5625. 12 Although the award was rendered under the 1975 ICC Rules of Arbitration, it could have been made under the present version, mutatis mutandis, if literally applied. The arbitrators stated:

The rules for the ICC Court of Arbitration leave no doubt as to who is, or are, to be identified as a claimant/claimants: it is that person that submits, on the basis of [Page30:] Article 3, a request for arbitration. In this particular case the request for arbitration has been submitted by claimant A, and by it only.

Neither do the rules leave any doubt as to who is, or are, the defendant/defendants: it is that person which is being identified as such in the request. In this particular case the request for arbitration identifies the defendant as defendant X, and it only.

. . . . . . . . .

Both the fact that company B is a signatory to the agreement on which claimant A bases its claim and the fact that it would have an interest in the outcome of the arbitral proceedings are irrelevant to the question whether it is, or should be made, a party to the arbitration. It is up to the interested person involved to determine whether it wishes to be a claimant in a procedure through the mechanisms thereto prescribed, i.e., in this case through the mechanism of Article 3 of the Rules.

12. Such principle, if strictly applied, provides an answer to most of the questions raised in § 6 above:

- A is entitled to act without its two co-venturers B and C and it is entitled to act against D only;

- B and C may not intervene in the arbitration and, a fortiori, may not join E therein;

- D may file a counterclaim against A only and not against B and C; it may not file a cross-claim against E;

- E may not intervene in the arbitration.

13. In this context, the only remaining question is whether, after starting an arbitration against D, A may file another request for arbitration against the second subcontractor, E. According to the principle whereby the claimant has the privilege to determine who are the parties in the arbitration, the answer is necessarily yes. The only way to avoid two parallel arbitrations dealing essentially with the performance of the same contract would be to join the proceedings. However, this would presuppose the agreement of A, D and E, under Article 4(6) of the ICC Rules of Arbitration, which reads:

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.

The same rule would apply if any other party to the Contract were to file a claim against another party, since the nature of the relations between that claim and the pending arbitration between A and D is irrelevant.

Therefore, on the basis of the ICC Rules of Arbitration, as presently applied, parties to the same arbitration agreement may be obliged to participate in separate arbitration proceedings dealing with closely interrelated matters. Failing any special agreement by the parties, be it in the arbitration clause or later on, neither addition of parties (whether voluntary or under compulsion) nor consolidation of proceedings is possible under the ICC Rules of Arbitration. This is likely to make things more costly and time-consuming and lead to a strong risk of contradictory arbitral awards. [Page31:]

14. There is no doubt that this regrettable situation results at least in part from the very structure of the ICC Rules of Arbitration, which have been drafted on the assumption that the parties can be divided into two camps: a claimant group and a respondent group. The latter may of course also include one or more counterclaimants. Although, as already noted, the rules have envisaged multiparty arbitration since 1998 (Article 10), '[t]he balance of the Rules' provisions, whether concerning the exchange of submissions, the constitution of the Arbitral Tribunal or the payment of costs, have been drafted on the basis of this bipolar conception of the process'. 13 However, it should be recognized that, with few exceptions, most arbitration laws and rules adopt the same bipolar assumption. It therefore needs to be considered whether these obvious limitations to the use of the arbitration clause are specific to ICC arbitration or are deeply rooted in the basic characteristics of arbitration.

II. Fundamental obstacles to voluntary and compulsory intervention

15. As an initial comment, it may be suggested that the traditional approach of the ICC International Court of Arbitration is too strict. The principle whereby the claimant has the exclusive privilege to determine who are the parties to the arbitration could easily have been relaxed by likening a party intervening voluntarily to a claimant and a party compelled to intervene to a respondent. However, it is certainly true that, under the ICC Rules of Arbitration prior to 1998, this would have created 'insuperable problems' 14 in the administration of the arbitration. Two important features of the rules were incompatible with such a move: first, the right of each party to nominate an arbitrator, in the event of a three-member tribunal, even in multiparty arbitration, which led to the Dutco difficulties; 15 second, the inadmissibility of a new claim, without the parties' agreement, after the signing of the Terms of Reference, pursuant to Article 16 of the 1975 and 1988 rules, which read as follows:

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 Court [1975] / International Court of Arbitration [1988].

16. For interventions by third parties, cross-claims and, more generally, the introduction of additional parties to existing proceedings to have been admitted, the additional party would have had to accept the arbitrators nominated by the claimant and/or the respondent or both of them, which it could hardly be forced to do. Thus, as soon as the claimant had nominated an arbitrator, i.e. at the time of filing its request for arbitration, the addition of a new party, in whatever capacity, became impossible, unless that party considered it worthwhile to waive its right to nominate an arbitrator or to nominate an arbitrator together with the respondent. However, such a solution would have been most improbable unless the parties had interests in common. Assuming the additional party had been prepared to accept an arbitral tribunal without having had a say in its constitution, the request for intervention or the cross-claim would have had to be filed at the beginning of the proceedings, before the signing of the Terms of Reference, as a result of Article 16 of the Rules. Given these considerable obstacles to the addition of a new party to the proceedings once they had started, it was understandable that the ICC International Court of Arbitration emphasized the claimant's privilege to determine who were the parties. [Page32:]

17. With the adoption of the 1998 ICC Rules of Arbitration, the situation changed. Article 10(2) allows the International Court of Arbitration to appoint each member of the arbitral tribunal in cases involving multiple parties, when it is impossible to assemble the parties into two camps and no other solution has been agreed upon by them. Article 19 of the 1998 Rules of Arbitration, which replaced the former Article 16, reads as follows :

After the Terms of Reference have been signed or approved by the Court, no party shall make new claims or counterclaims which fall outside the limits of the Terms of Reference unless it has been authorized to do so by the Arbitral Tribunal, which shall consider the nature of such new claims or counterclaims, the stage of the arbitration and other relevant circumstances.

Thus, the Terms of Reference no longer constitute an impassable hurdle. In this new context, the problems related to the addition of a party to the proceedings after they have started may now be seen from a new perspective. In this respect, two essential distinctions need to be made: on the one hand, whether the request for addition of a party is presented before or after the constitution of the arbitral tribunal and, on the other hand, whether the request is presented after the signing of the Terms of Reference by the other parties.

To facilitate the discussion, it is worth returning to the example of the two joint ventures A, B, C and D, E, whose members are all parties to a construction contract. The scenario will be as before: A, acting alone, files a request for arbitration against D. In its answer, D calls in E as guarantor.

18. If one goes beyond a literal interpretation of the text and likens E to a respondent - and there is no fundamental reason for not doing so - the arbitral tribunal may be constituted pursuant to Article 10(2) of the Rules of Arbitration, provided the parties have not agreed otherwise. As a consequence, A and D will lose the possibility of nominating an arbitrator if the ICC International Court of Arbitration decides to make the appointment. However, this was a foreseeable risk when they agreed to refer to ICC arbitration: they must have known at such time that, in the event of a multiparty dispute, it could happen that the three members of the arbitral tribunal would be appointed by the ICC International Court of Arbitration. The fact that the multiparty aspect of the dispute results from a procedural decision of the initial respondent (D) and not from the claimant (A) is irrelevant in this respect. Like E, both are parties to the arbitration agreement and have equal rights.

19. If D decides to call E as guarantor after the arbitral tribunal has been constituted, E cannot be compelled to accept an arbitral tribunal that includes two arbitrators nominated by A and D. Hence D's request must be turned down, unless E accepts the arbitral tribunal as constituted. If E does agree to participate in the arbitration, there is no reason to accept any objection by A to such participation. A is party to an arbitration agreement to which E is also party. Mutatis mutandis, the same would apply should B and C decide to intervene in the arbitration, despite not having had a say in the constitution of the arbitral tribunal.

20. The problem is somewhat different if D calls E as guarantor after the signing of the Terms of Reference, or if B and/or C wish(es) to intervene in the arbitration, or if A, D or E requests that they intervene. The specific difficulty resulting from the fact that the arbitral tribunal has already been constituted calls for similar solutions to those mentioned in § 19. However, given that the Terms of Reference have already been signed, the arbitral tribunal is confronted with a new claim. This [Page33:] characterization seems to be correct and was adopted by an ad hoc tribunal in an interim award of 27 October 1989 in a case conducted under the UNCITRAL Arbitration Rules, 16 in which the claimant wanted to add a new party as respondent. The arbitrators gave the following explanations:

As noted above, the Government of Ghana was not originally named a respondent in the Statement of Claim. The claimants sought to add the Government by an amendment in their Additional Comments submitted to the Tribunal on 15 June 1989. Counsel for the respondents objected to the amendment at the beginning of the Hearing.

Under the UNCITRAL Rules, Art. 20, a claimant may amend his claim at any time, unless such factors as undue delay or prejudice suggest that such amendment is inappropriate or the amended claim would fall outside the arbitration clause. In the present case, the amendment was made in the claimants' first submission on the merits following the Statement of Claim, and in any case confirmed the obvious conclusion.

21. It is true that, in the above-mentioned ad hoc case, the request to add a new party came from a party that was already in the arbitration. Thus, for there to be a perfect analogy with our example, the request to add a new party would have had to be made by A or D. However, given that B, C and E are parties to the arbitration agreement, a request by one or other of them to introduce a new party could conceivably be characterized as a new claim.

The major difference would be the signing of the Terms of Reference, not so much because the arbitrator would have to decide whether this new claim is admissible under Article 19 of the ICC Rules, but because, if it is admissible, it would mean that a new party that has not signed the Terms of Reference would be added to the proceedings. In practice, a solution may be found to this problem. One possibility is to amend the Terms of Reference, on the basis of the arbitrators' decision on admissibility and, if one of the parties refuses to sign the amended version, to submit it to the ICC International Court of Arbitration for approval pursuant to Article 18(3).

22. The above discussion gives an overview of the available solutions to the problem of adding a new party to proceedings under the ICC Rules of Arbitration. It shows that the only fundamental obstacle to the addition of a party to proceedings once they have started is the constitution of the arbitral tribunal. In this regard, the ICC example illustrates the superiority of institutional arbitration over ad hoc arbitration, as arbitration institutions with appropriate rules comparable to Article 10(2) of the ICC Rules of Arbitration 17 may easily constitute an arbitral tribunal when there are more than two parties. In ad hoc arbitration, it is not impossible but is far more difficult and time-consuming and will depend on the choice of the appointing authority, the law applicable to the arbitration and the help available from courts at the place of arbitration.

Conclusion

23. Arbitration will never provide solutions to disputes involving more than two parties comparable to those available in the courts. It is impossible to put arbitrators completely on a par with judges, notably because one of the main characteristics of arbitration, besides its consensual aspect (which should not be overestimated), is that the parties are entitled to choose the arbitrators, directly or [Page34:] indirectly. However, this does not mean that parties to multiparty contracts necessarily run the risk of parallel proceedings and contradictory awards if they have not included special provisions allowing for third-party intervention, which, besides, are cumbersome and not always effective. In this respect, arbitration institutions may provide a valuable service to parties, provided that their rules are applied with a certain flexibility.

1
B. Hanotiau, 'Problems Raised by Complex Arbitrations involving Multiple Contracts-Parties-Issues: An Analysis' (2001) 18 J. Int. Arb. 251

2
Cass. civ. 1re, 7 January 1992, Rev. arb. 1992.470 (Annot. P. Bellet); see also E. Schwartz, 'Multi-Party Arbitration and the ICC: In the Wake of Dutco' (1993) 10:3 J. Int. Arb. 5

3
On this question, see Aix-en-Provence Court of Appeal, 9 October 1997, Rev. arb. 1998.383 (Annot. J.L. Delvolvé), where the problem was raised, but not solved.

4
Paris, 19 December 1986, Rev. arb. 1987.359; see also E. Gaillard, 'L'affaire Sofidif ou les difficultés de l'arbitrage multipartite (à propos de l'arrêt rendu par la Cour d'appel de Paris le 19 décembre 1986)', Rev. arb. 1987.275.

5
B. Hanotiau, supra note 1 at 256.

6
See A. J. Van den Berg, 'The Netherlands' (National Report) (1987) XII Y.B. Comm. Arb. 3 at 21-22; R.G. Shamoon & I.M. TenCate, 'Absence of Consent Trumps Arbitral Economy: Consolidation of Arbitration under U.S. Law' (2001) 12 American Review of International Arbitration 335.

7
See S. Jarvin, Y. Derains & J.-J. Arnaldez, Collection of ICC Arbitral Awards 1986-1990 (ICC Publishing/Kluwer, 1994) 69.

8
Ibid. at 76.

9
Ibid. at 78.

10
Ibid. at 79.

11
See S.R. Bond, 'The Experience of the ICC International Court of Arbitration' in ICC Institute of International Business Law and Practice, Multi-Party Arbitration: Views from International Arbitration Specialists (Paris: ICC Publishing, 1991) 37.

12
See S. Jarvin, Y. Derains & J.-J. Arnaldez, Collection of ICC Arbitral Awards 1986-1990 (ICC Publishing/Kluwer, 1994) 484 (Annot. S. Jarvin).

13
Y. Derains & E.A. Schwartz, A Guide to the New ICC Rules of Arbitration (The Hague: Kluwer Law International, 1998) at 73.

14
S.R. Bond, supra note 11 at 42.

15
See § 3 above.

16
(1994) XIX Y.B. Comm. Arb. 11 at 17.

17
See e.g. Article 8(1) of the LCIA Rules (1998), Article 6(5) of the AAA Rules (1997), Article 16(3) of the Stockholm Arbitration Rules (1999), section 13 of the DIS Arbitration Rules (1998) and Article 10 of the Rules of Arbitration of the International Arbitration Centre of the Austrian Federal Economic Chamber (2000).