Discussions concerning related or parallel proceedings in the context of international arbitration very rarely turn on the possible consolidation of court proceedings and arbitral proceedings. Rather, the topics that are normally discussed are the consolidation of different arbitral proceedings or the consolidation of different court proceedings. The case where related proceedings are to be brought before an arbitral tribunal and a national court is normally only addressed where these proceedings concern the same parties, leading to an analysis of the applicability of the principle of lis pendens in the context of international arbitration. 2

This contribution will examine the question of whether related court proceedings and arbitral proceedings can (and should) be consolidated. Unsurprisingly, the consolidation of such proceedings depends entirely on the agreement of all parties involved and it thus remains true that the parties' agreement constitutes both the foundation and, in the case of multi-party situations, sometimes the inconvenience of international arbitration.

I. Cases in which the consolidation of arbitral proceedings and court proceedings may become relevant

A number of situations can potentially lead to the consolidation of related proceedings. The first concerns those cases where the plaintiff has claims against two or more defendants, based on the same or similar facts, one of which is subject to an arbitration agreement, whereas the other one is subject to the jurisdiction of a national court. 3 Second, where the defendant, be it in arbitration or court proceedings, has itself claims against a third party, the question whether such proceedings can be consolidated is likely to arise. Typical examples of such cross-claims are cases where one plaintiff has brought claims against different co-defendants, and the defendants have claims against each other. However, a similar situation can arise in proceedings with only one plaintiff and one defendant, where the defendant has claims against other related third parties which it attempts to include in the same proceedings.

The latter situation is frequently encountered in large international construction and industrial projects, which often include, apart from the main contract between the employer and the main contractor, a whole range of implementing contracts, such as sub-contracts between the main contractor and its sub-contractors, agreements between the employer and consultants and planners, [Page36:] agreements as to intellectual property rights, contracts with banks and investors regarding the financing of the project, as well as separate insurance policies. 4 It is not uncommon for the main contract to include an arbitration clause, and for the related contracts to include either a different arbitration clause or a jurisdiction clause. Accordingly, disputes that may well concern very similar, if not identical, facts and legal analyses can end up before separate arbitral tribunals or before an arbitral tribunal and a national court. 5

Finally, the question of possible consolidation may also become relevant in cases where the same two parties have concluded several contracts, with differing arbitration clauses and/or jurisdiction clauses. 6

Admittedly, in many of these situations, the question of possible consolidation of the relevant court proceedings with the arbitral proceedings does not even arise. Rather, the parties will enter into battles over the jurisdiction of the relevant tribunal or court, without even contemplating consolidation. 7 However, the potential advantages inherent in consolidation may lead the parties to re-consider such an option.

II. Advantages and disadvantages of consolidation

The most compelling factor in favour of consolidating related proceedings is the risk of inconsistent or even contradictory decisions in separately held proceedings, with respect to both the facts involved and the application of the governing law. 8 This concern is even more important in international arbitration than it is in litigation, given that the review of arbitral awards by national courts, be it in the context of an action to set aside an award or to enforce an award, will normally not look into the correct handling of the facts or the law by the arbitral tribunal. 9 In addition, the consolidation of related proceedings may also serve procedural efficiency and the 'good administration of justice' by saving time and cost, and particularly by coordinating the taking of evidence. 10

Nevertheless, the consolidation of related proceedings is by no means always the ideal answer to the difficulties arising in complex international disputes. Consolidated arbitral proceedings involving more than two parties can potentially lead to a multitude of difficulties on a procedural level, not least of which is the requirement that all parties must be treated equally when constituting the arbitral tribunal. 11 Further, the administration of arbitrations involving a number of parties may be prone to problems, particularly in light of [Page37:] the fact that most national rules of civil procedure, as well as international arbitration rules, are tailored to two-party proceedings. Giving three or more parties the opportunity to comment on each other's submissions can be very time-consuming and increases the risk of delaying tactics. It therefore takes clear rules as well as substantial experience on the part of the arbitral tribunal to ensure the respect of the principle of due process, while at the same time avoiding significant delays in a multi-party arbitration. 12

The consolidation of related proceedings is further likely to raise the problem that confidential information, such as trade secrets, information regarding intellectual property, know-how, cost margins, or more general financial information, risks being disclosed to parties from which this information was normally to be kept secret. 13 However, such intrusion upon the right to privacy and confidentiality should remain limited, given that such information produced for or generated by an arbitration cannot be disclosed for purposes unrelated to the arbitration. 14

It has also been argued that consolidated proceedings may lead to an unfair distribution of fees, in that the third party might end up paying more in consolidated proceedings than it would have paid in more limited, separate proceedings, or vice versa. 15 While such a result should be fairly easy to avoid through the individualized apportioning of fees by the arbitral tribunal, another related argument against consolidation carries more weight: it may well be that one of the parties involved is only concerned about obtaining an award on a specific point with respect to which the facts are established. In separate proceedings on this question, it may receive an award quickly, while consolidated proceedings, involving the discussion of other, possibly more complicated, issues may take substantially longer. As a result, the consolidation of proceedings may well lead to additional costs, rather than to savings, for at least one of the parties. 16

In summary, the desirability of consolidating different proceedings can only be assessed on a case-by-case basis. It will be a difficult decision, all the more so as it can often be made only once the disputes have crystallized, and the positions of all parties involved, as well as their procedural strategies, have become clear. 17

III. The parties' consent as a condition for consolidation

The main issue to be discussed in any analysis of the consolidation of related proceedings is the question of who can decide upon such consolidation. Should national courts be entitled to order such consolidation, should the arbitral tribunal (or, as the case may be, the relevant arbitral institution) be empowered to do so, or should the parties alone have the right to decide that their proceedings are to be consolidated?

In very rare cases, national laws provide for the consolidation of court proceedings and arbitral proceedings in certain circumstances. For instance, under the 1989 Colombian decree on arbitration, 18 arbitration agreements between two parties are invalid where the dispute may have effects on a third party that is not party to the arbitration agreement, and where that third party [Page38:] does not agree to be joined in the arbitration. In such a case, according to Article 30 of the decree, the arbitral tribunal shall invite the third party or parties to adhere to the arbitration agreement, failing which the arbitration agreement will be invalid. Consequently, the arbitration proceedings are effectively consolidated with any related court proceedings, despite the absence of an agreement of all parties in this respect.

Clearly, this provision is aimed at resolving problems arising from the fact that it is impossible to bring related disputes before the same judicial authority where the arbitration agreement has not been accepted by all the parties involved. However, in addressing this issue, the Colombian legislator has entirely failed to respect some of the bases of international arbitration law. At the very least, the provision is dangerous for arbitration in that it opens the door to abuse.

Such abuse could happen in a dispute between a foreign contractor and a Colombian owner arising out of a construction project carried out in Colombia by local sub-contractors. Imagine that the local sub-contractors are unwilling to enter into an arbitration agreement, but rather insist on having their disputes settled before the local courts. In such a situation, the Columbian decree allows any party to the arbitration agreement in the main construction contract to avoid the dispute being settled through arbitration. That party, be it the Columbian party or its co-contractor, can simply argue that the award should be enforceable against the Columbian sub-contractors and that, as these sub-contractors will refuse to take part in the arbitration, the arbitration agreement is to be avoided.

As Fernando Mantilla Serrano has rightly pointed out, 19 Article 30 of the decree tends to ignore the contractual nature of arbitration by making the third parties that are not party to the arbitration agreement the decisive factor as to the validity of this agreement. Further, the parties to the main contract have no way of objecting successfully to the involvement of third parties in their arbitration.

While the Colombian decree offers a particularly striking example of anti-arbitration bias, it is not the only national law providing for consolidation of related proceedings or the inclusion of affected third parties in ongoing proceedings. Although most national arbitration laws and the UNCITRAL Model Law on International Commercial Arbitration do not contain provisions on the consolidation of arbitral proceedings, such provisions are found in a limited number of laws. 20 Some legislators have simply enacted a solution which prevails in the absence of any agreement by the parties to the contrary and which provides for consolidation of related arbitral proceedings ordered by the national courts but subjects this power to the consent of all parties concerned. 21 This guards against mandatory consolidation based on the local court's power without the agreement of the parties involved. Other national laws, on the other hand, such as in the [Page39:] Netherlands 22 and, for a while, in Hong Kong 23 and the USA, 24 permit genuine court-ordered consolidation of arbitral proceedings, even without the agreement of all the parties concerned. However, these provisions do not apply to the consolidation of arbitral proceedings and court proceedings.

Despite these rare provisions allowing for court-ordered consolidation of arbitration proceedings seated in a country whose law permits such consolidation, it is comforting to note that, to the author's knowledge, no law other than the Colombian decree allows related court proceedings and arbitral proceedings to be consolidated without the consent of all parties.

IV. Methods of consolidating arbitral and court proceedings

Even though strategic considerations may well keep parties from agreeing to the consolidation of proceedings, 25 such consolidation is not excluded in practice. Logically, two types of consolidation of separate arbitral and court proceedings can be envisaged: the parties can agree to consolidate them in either a single court action or a single arbitration.

A. Consolidation in a single court action

Where the parties to different proceedings agree that their disputes should be decided in a single court action, they need to waive their arbitration agreement, bring their dispute before the court that is already dealing with the related dispute, and apply for the related disputes to be consolidated before that court.

(1) Parties' agreement to waive their arbitration agreement(s)

Given that, by definition, arbitration presupposes that the parties have agreed to have their disputes resolved by that means, they are equally free to waive their undertaking to submit disputes to arbitration and to go before national courts instead. Such a waiver can be either express or implied. 26

An implied waiver of an arbitration agreement can, for instance, consist in a plaintiff bringing a court action on the merits 27 or a defendant filing a defence on [Page40:] the merits without challenging the court's jurisdiction. 28 Similarly, a counterclaim brought before national courts can be deemed to constitute a waiver of the arbitration agreement with respect to that counterclaim. 29 A further example of an implied waiver is found in the decision of the Paris Court of Appeal in 1987 in a dispute concerning a series of contracts, all of which had been concluded between the same parties, but only one of which included an arbitration clause, the others containing choice-of-jurisdiction clauses in favour of the Paris Commercial Court or some other unspecified court. The Paris Court of Appeal, overruling the court of first instance, held that, jurisdiction clauses having been included 'in a series of contracts liable to give rise to complex litigation involving inseparable elements, those provisions can […] only be interpreted as expressing the parties' intention to waive the arbitration agreement'. 30 Thus, according to the Court of Appeal, not only did the arbitration agreement not cover subsequent contracts but it was also waived with respect to the contract in which it had been incorporated.

In cases where the parties' intentions to waive their arbitration agreement coincide, the court must give effect to those intentions, just as it would to a jurisdiction clause in the parties' agreement. The court cannot decline jurisdiction ex officio. 31

On the other hand, a number of situations should be mentioned in which no waiver of an arbitration agreement can be inferred. For instance, a party does not waive its arbitration agreement by applying to a national court merely for provisional or protective measures compatible with the arbitration agreement. 32 Also, the fact that a party has seized a national court of a claim falling outside the jurisdiction of the arbitral tribunal, either because the subject matter has been expressly excluded from the arbitration agreement by the parties, or because the courts have exclusive jurisdiction over the issue in dispute, does not constitute an implied waiver of the arbitration agreement. Further, the fact that a party fails to nominate an arbitrator within the deadline stipulated in the arbitration agreement cannot normally be interpreted as a waiver of that agreement. 33 Finally, if a claimant refuses to pay the defendant's share of the arbitration costs where the defendant fails to pay its share, this can, depending on the arbitration rules applicable, 34 amount to a waiver of its arbitration request, but not to an implied waiver of the arbitration agreement.

(2) Consolidation of court proceedings

The mere waiver by the parties of their arbitration agreement does not, however, automatically bring about the consolidation of the parties' arbitral proceedings with a related action in a given court. This will require a decision by the court itself, usually at the request of one of the parties. [Page41:]

Most national laws understandably contain provisions regarding the consolidation of related proceedings, the purpose of which is to avoid conflicting decisions. For instance, in France, related civil actions can be joined on the basis of Article 367 of the French New Code of Civil Procedure, or through a plea of connectivity (exception de connexité) as provided for in Article 101 of the same code. 35 In the United States, courts are entitled to order consolidation of related actions under Rule 42(a) of the Federal Rules of Civil Procedure. Similar rules exist in most other jurisdictions. 36 The application of these rules enables national courts to consolidate the already existing court action with the proceedings resulting from the parties' waiver of their arbitration agreement.

B. Consolidation in a single arbitration

In the second scenario, the parties to court proceedings determine that their dispute should be decided through arbitration, and that such arbitration should be consolidated with another, related arbitration. Again, the parties' agreement to consolidate the related proceedings in a single arbitration is the precondition for such consolidation. In the absence of such agreement, any award that is made on the basis of the arbitration agreement in one of the contracts at issue but extends to disputes arising out of another contract could be challenged on the ground that the arbitral tribunal decided - at least in part - in the absence of an arbitration agreement. 37

(1) Parties' agreement to arbitrate

Notwithstanding the inclusion of a jurisdiction clause in their contract, parties can obviously agree to have a dispute resolved by arbitration, even after the dispute has arisen. Again, such agreement can be made expressly, in the form of a submission agreement, or implicitly.

In some cases, national courts will even invite parties not bound by an arbitration agreement to enter into a submission agreement in order to participate in arbitral proceedings that are ongoing in a related matter. The US District Court for the Southern District of New York decided in a dispute involving six companies from Japan and the United States, some of which were bound by contracts containing arbitration clauses and others by contracts that referred disputes to national courts, that the court action was to be stayed, 'on condition that all defendants agree in writing within thirty days to submit to the pending arbitration proceedings and to be bound by any award granted by the arbitrators'. 38

An implicit agreement to arbitrate can, for example, consist in the parties signing the Terms of Reference in an ICC arbitration. 39 A further example is for a third party to rely on an arbitration clause not normally binding upon it, in order to challenge the jurisdiction of the court in a court action brought against it. 40

(2)Parties' consent to consolidate arbitral proceedings

Again, the parties' agreement that their disputes should be solved through arbitration is not the only condition for consolidating related proceedings. In addition, all the parties involved must agree to consolidate their arbitral proceedings with the related arbitration. [Page42:]

Such agreement can obviously be made expressly. 41 The arbitral tribunal in the Sofidif arbitration, for instance, suggested to the parties that they expressly agree to extend the arbitration agreement in question to the cross-claim to be decided. 42

In the absence of an express agreement to consolidate, the arbitral tribunal will have to examine whether the parties implicitly agreed to have the related arbitral proceedings consolidated. It may be very difficult to interpret the parties' true intent, particularly in cases where several contracts are connected and only some of them contain an arbitration clause. The author does not share the view sometimes expressed that the consolidation of proceedings is necessarily in line with the parties' agreement, since the parties' 'fundamental goal' must be 'a speedy and fair resolution of their disputes'. 43 Rather, it has to be carefully determined on a case-by-case basis whether the parties implicitly agreed that disputes arising out of the related contracts could, and should, be heard together in a single arbitration. 44

V. Conclusion

The consolidation of related court proceedings and arbitral proceedings, while theoretically desirable in some cases, raises many important obstacles, both on a conceptual and a procedural level.

The principle of party autonomy dictates that any consolidation necessarily depends on the agreement of all parties involved. The possible disadvantages of consolidated proceedings, and especially the possible disrespect of the principle of party autonomy, mean that any exaggerated intervention by the courts in this respect cannot be accepted. The author cannot agree with the view that, for the sake of rationalizing proceedings, 'the principle of sanctity of contracts should thus be tempered by the requirements of the good administration of justice'. 45 The principle of the sanctity of contracts must remain untouched to the largest possible degree. To tamper with it would be to undermine the very basis of international arbitration. Thus, any consolidation must entirely depend on the determination of the parties involved to solve their disputes in the most efficient way possible. It remains to be hoped that strategic considerations will not deter them from doing so.

1
The author wishes to thank Joachim Knoll, an Associate of Shearman & Sterling LLP (Paris) in the International Arbitration Group, for his assistance in the preparation of this article.

2
See e.g. F. Perret, 'Parallel Actions Pending before an Arbitral Tribunal and a State Court: The Solution under Swiss Law' (2000) 16 Arbitration International 333; M.E. Schneider, 'Multi-Fora Disputes' (1990) 6 Arbitration International 101; J.F. Poudret & S. Besson, Droit Comparé de l'arbitrage international (Brussels: Bruylant/Paris: LGDJ/Zurich: Schulthess, 2002) at 438ff.

3
An example of such a situation is the case where the performance of a contractual obligation is guaranteed by a third party, and where the main contract contains an arbitration agreement while the bank guarantee provides for the jurisdiction of the courts in the bank's state. See M.E. Schneider, supra note 2 at 103.

4
See e.g. F. Nicklisch, 'Multi-Party Arbitration and Dispute Resolution in Major Industrial Projects' (1994) 11:4 J. Int. Arb. 57; M.E. Schneider, supra note 2; G. Bernini, 'Arbitration in Multi-Party Business Disputes' (1980) V Y.B. Comm. Arb. 291; H. Lloyd, 'A National Experience' in ICC Institute of International Business Law and Practice, Multi-Party Arbitration: Views from International Arbitration Specialists (Paris: ICC Publishing, 1991) 61; A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration, 3d ed. (London: Sweet & Maxwell, 1999) at 177ff, with a discussion of the decision by Lord Denning in the English Court of Appeal in the case of Abu Dhabi Gas Liquefaction Co. Ltd. v. Eastern Bechtel Corp., [1982] 2 Lloyd's Rep. 425.

5
For a discussion of one of the most prominent examples of such a situation, see the first arbitration of the International Centre for the Settlement of Investment Disputes (ICSID), Holiday Inns/Occidental Petroleum v. The Government of Morocco, where the 'Basic Agreement' included a clause referring disputes to arbitration under the ICSID Rules, whereas some of the implementing contracts, such as the loan contracts, included valid choice-of-forum clauses referring disputes to the local Moroccan courts. See P. Lalive, 'The First "World Bank" Arbitration (Holiday Inns v. Morocco) - Some Legal Problems' (1980) 51 British Yearbook of International Law 123. For examples arising from product liability disputes, see e.g. M.E. Schneider, supra note 2 at 103. See also F. Nicklisch, supra note 4 at 78; A. Redfern & M. Hunter, supra note 4 at 178, for suggested solutions in commodity and maritime arbitrations.

6
For a detailed analysis of such multi-contract cases involving only two parties, see P. Leboulanger, 'Multi-Contract Arbitration' (1996) 13:4 J.Int. Arb. 42.

7
See P. Lalive, supra note 5 at 160.

8
See e.g. F. Nicklisch, supra note 4 at 64; P. Leboulanger, supra note 6 at 54ff. For critical views, see M. Platte, 'When Should an Arbitrator Join Cases?' (2002) 18 Arbitration International 67; V.V. Veeder, 'Multi-party disputes: Consolidation under English Law - The Vimeira - a Sad Forensic Fable' (1986) 2 Arbitration International 310. For a detailed analysis of the advantages and disadvantages of consolidation generally, see J.C. Chiu, 'Consolidation of Arbitral Proceedings and International Commercial Arbitration' (1990) 7:2 J. Int. Arb. 53.

9
See J.C. Chiu, supra note 8; P. Leboulanger, supra note 6 at 63ff.

10
See S. Jarvin, 'Issues Relating to Consolidation' in ICC Institute of International Business Law and Practice, Multi-Party Arbitration: Views from International Arbitration Specialists (Paris: ICC Publishing, 1991) 199; M.E. Schneider, supra note 2 at 121; M. Platte, supra note 8.

11
On this issue, see E. Gaillard & J. Savage, eds., Fouchard Gaillard Goldman On International Commercial Arbitration (The Hague: Kluwer Law International, 1999) [hereinafter Fouchard Gaillard Goldman] at § 792. See also e.g. E.A. Schwartz, 'Multi-Party Arbitration and the ICC - In the Wake of Dutco' (1993) 10:3 J. Int. Arb. 5; S. Gravel, 'Multiparty Arbitration and Multiple Arbitrations' (1996) 7:2 ICC ICArb. Bull. 45; J.C. Chiu, supra note 8.

12
See e.g. H. van Houtte, 'Due Process in Multi-Party Arbitration', in ICC Institute of International Business Law and Practice, Multi-Party Arbitration: Views from International Arbitration Specialists (Paris: ICC Publishing, 1991) 189; F. Nicklisch, supra note 4 at 68. For a very critical view as to the efficiency achieved in consolidated proceedings, see D.T. Hascher, 'Consolidation of Arbitration by American Courts: Fostering or Hampering International Arbitration?' (1984) 1 J. Int. Arb. 127 at 136-137.

13
See F. Nicklisch, supra note 4 at 69; P. Leboulanger, supra note 6 at 64ff.

14
For a more detailed discussion of issues of privacy and confidentiality in consolidated proceedings, see e.g. M. Collins, 'Privacy and Confidentiality in Arbitration Proceedings' (1995) 11 Arbitration International 321; A. Diamond, 'Multi-Party Arbitrations - A Plea for a Pragmatic Piecemeal Solution' (1991) 7 Arbitration International 403, who suggests that 'the subsidiary virtue of confidentiality [should not be elevated] into something of a sacred cow'.

15
See e.g. J.C. Chiu, supra note 8.

16
See M. Platte, supra note 8; V.V. Veeder, supra note 8; D. St. John Sutton, J. Kendall & J. Gill, Russell on Arbitration, 21st ed. (London: Sweet & Maxwell, 1997) at 106; M.E. Schneider, supra note 2 at 121, who suggests that, in some instances, it may be preferable to separate different, well-defined, parts of the dispute in order to induce parties to a possible settlement once a decision has been reached in one of the proceedings.

17
See P. Level, 'Joinder of Proceedings, Intervention of Third Parties, and Additional Claims and Counterclaims' (1996) 7:2 ICC ICArb. Bull. 36; M.F. Guarin, 'International Approaches to Court-Ordered Consolidation of Arbitral Proceedings' (1993) 4 The American Review of International Arbitration 519 at 520.

18
For a French translation of the decree, see [1992] Rev. arb. 161.

19
See F. Mantilla-Serrano, 'La nouvelle législation colombienne sur l'arbitrage' [1992] Rev. arb. 41 at 54.

20
On the consolidation of related arbitration proceedings in comparative law, see J.-F. Bourque, Le règlement des litiges multipartites dans l'arbitrage commercial international (Thesis, University of Poitiers (France), 1989) at 508ff; I.I. Dore, Theory and Practice of Multiparty Commercial Arbitration (Graham & Trotman/M. Nijhoff, 1990); P. Level, supra note 17; P. Sanders, 'Unity and Diversity in the Adoption of the Model Law' (1995) 11 Arbitration International 1 at 29.

21
See e.g. the international commercial arbitration statutes of some of the common law provinces and territories of Canada, such as Ontario and British Columbia; S. Jarvin, 'Canada's Determined Move Towards International Commercial Arbitration' (1986) 3:3 J. Int. Arb. 111; M.F. Guarin, supra note 17 at 532ff; P. Leboulanger, supra note 6 at 58. Similarly, the state laws of those US states that have adopted the UNCITRAL Model Law have typically included a provision on consolidation of arbitral proceedings by the courts 'on terms the court considers just and necessary', where all parties involved agree to such an application to the courts. See also section 35 of the 1996 English Arbitration Act which allows consolidation of arbitral proceedings only with the explicit agreement of the parties. See A. Redfern & M. Hunter, supra note 4 at 181; M.F. Guarin, supra note 17 at 526ff. For a court's criticism of the absence of any statutory power in England to order the consolidation of separate arbitral proceedings, see The Vimeira (Aiden Shipping Co. Ltd. v. Interbulk Ltd.), [1984] 2 Lloyd's Rep. 66. See also sections 24-26 of the Australian International Arbitration Act.

22
See Article 1046 of the Dutch Code of Civil Procedure as enacted on 1 December 1986. For a discussion of this provision, see J.J. van Haersolte-van Hof, 'Consolidation Under the English Arbitration Act 1996: A View from the Netherlands' (1997) 13 Arbitration International 427; K.P. Berger, 'International Economic Arbitration in Germany: A New Era' (1992) 8 Arbitration International 101 at 111; M.F. Guarin, supra note 17 at 533; G. Hermann, 'Does the World Need Additional Uniform Legislation on Arbitration? The 1998 Freshfields Lecture' (1999) 15 Arbitration International 211, who points out that Article 1046 has been applied exclusively in domestic cases.

23
Section 6B(1) of the 1982 Hong Kong Arbitration Ordinance which, after the adoption in 1996 of the UNCITRAL Model Law for international arbitration, now applies only to domestic arbitration, recognizes the court-ordered consolidation of related arbitrations. See H.S. Miller, 'Consolidation in Hong Kong: the Shui On case' (1987) 3 Arbitration International 87; V.V. Veeder, 'Consolidation: More News from the Front-Line: The Second Shui On Case' (1987) 3 Arbitration International 262.

24
See Compania Espanole de Petroleos S.A. v. Nereus Shipping S.A., 527 F. 2d 966 (2d Cir. 1975). Thankfully, this case law was subsequently changed in favour of a fairly clear position against court-ordered consolidation of arbitral proceedings. US courts now appear to be virtually unanimous in holding that, in the absence of agreement of all parties involved, they have no authority to consolidate separate arbitrations. See United Kingdom v. Boeing Co., 998 F.2d 68 (2d Cir. 1993), (1993) 8:7 Mealey's International Arbitration Report C1; North River Ins. Co. v. Philadelphia Reinsurance Corp., 856 F.Supp. 850 (S.D.N.Y. 1994). For commentaries, see R.E. Wallace Jr., 'Consolidated Arbitration in the United States: Recent Authority Requires Consent of the Parties' (1993) 10:4 J. Int. Arb. 5; H.M. McCormack, 'Recent U.S. Legal Decisions on Arbitration Law' (1994) 11:4 J. Int. Arb. 73 at 8ff; W.M. Barron, 'Court-ordered Consolidation of Arbitration Proceedings in the United States' (1987) 4:1 J. Int. Arb. 81-86; C. Stippl, 'International Multi-Party Arbitration: The Role of Party Autonomy' (1996) 7 The American Review of International Arbitration 47 at 67ff; B. Hanotiau, 'Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues - An Analysis' (2001) 18 J. Int. Arb. 251 at 333.

25
See e.g. P. Bernardini, 'Examination of the Issues Involved in Drafting Arbitral Clauses' in ICC Institute of International Business Law and Practice, Multi-Party Arbitration: Views from International Arbitration Specialists (Paris: ICC Publishing, 1991) 97.

26
On the different forms of waivers, see Fouchard Gaillard Goldman, supra note 11 at § 736. For the position under US case law, see H.M. McCormack, supra note 24 at 82 ff.

27
See e.g. Paris, 7 July 1994, Uzinexportimport Romanian Co. v. Attock Cement Co., Rev. arb. 1995.107 (Annot. S. Jarvin), (1995) 10:2 Mealey's International Arbitration Report D-1, confirming that a party's waiver of an arbitration agreement 'can be inferred from the fact that [it] has applied to a court, provided that the claim in question concerns the merits of the dispute and thus ought to have been submitted to arbitration'.

28
See e.g. in France, Cass. civ. 1re, 6 June 1978, British Leyland International Services v. Société d'Exploitation des Etablissements Richard, J.D.I. 1978.907 (Annot. B. Oppetit), Rev. arb. 1979.230 (Annot. P. Level). In the USA, see e.g. Khalid Bin Alwaleed Found. v. E.F. Hutton Inc., No. 88 C 5074, 1990 WL 17143 (N.D. Ill. 1 February 1990), (1991) XVI Y.B. Comm. Arb. 645; Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218 (1st Cir. 1995), (1996) 11:1 Mealey's International Arbitration Report B-1; G.B. Born, International Commercial Arbitration in the United States (Deventer: Kluwer Law and Taxation, 1994) 279ff. Clearly, however, an arbitration agreement cannot be found to have been waived in a case where a party participates in court proceedings after its challenge of the court's jurisdiction has been rejected. For a highly unsatisfactory decision to the contrary, see the obiter dictum of the Supreme Court of Hong Kong, High Court, 6 April 1995 in Jiangxi Provincial Metal and Minerals Import and Export Corp. v. Sulsaner Co. Ltd., (1995) 10:6 Mealey's International Arbitration Report B-1.

29
See Spanish Tribunal Supremo [Supreme Court], 18 February 1993, Black Sea Shipping Co. v. Novo Viaje, S.A., (1997) XXII Y.B. Comm. Arb. 785 at 788.

30
Paris, 9 December 1997, G.I.E. Acadi v. Thomson-Answare, Rev. arb. 1988.573, 2d decision, and G. Pluyette's commentary at 534.

31
See Article 4 of the 1923 Geneva Protocol, Article II(3) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article VI(1) of the 1961 Geneva Convention on International Commercial Arbitration. For national laws confirming this principle, see e.g. Article 1458(3) of the French New Code of Civil Procedure; for US case law, see Born, supra note 28 at 279ff; see also Article 8(1) of the UNICTRAL Model Law on International Commercial Arbitration.

32
See e.g. the 1983 award in ICC case 4156, French company v. French company, J.D.I. 1984.937 (Annot. S. Jarvin). See also Article 23(2) of the 1998 ICC Rules of Arbitration which expressly provides that a party's application to a national court for interim or conservatory measures before the arbitration has begun 'shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal'. For further references, see Fouchard Gaillard Goldman, supra note 11 at §§ 1311-1312. For an unfortunate decision to the contrary, rendered by the French Court of Cassation, see Cass. civ. 1re, 9 October 1990, Bin Seoud Bin Abdul Aziz v. Banque Rivaud, Rev. arb. 1991.305 (Annot. M.L. Niboyet-Hoegy). In this case, an ICC arbitration was pending and the arbitral tribunal had appointed experts. After these experts had submitted their reports to the arbitral tribunal, the claimant applied to the courts for the appointment of another expert. The Court of Cassation upheld the decision by the Paris Court of Appeal considering that the claimant had thereby waived its right to continue the arbitration.

33
See Paris, 14 November 1991, Consorts Legrand v. European Country Hotels Ltd., Rev. arb. 1994.545, 2d decision (Annot. P. Fouchard). See however section 5 of the 1999 Swedish arbitration statute, according to which '[a] party shall forfeit his right to invoke the arbitration agreement where the party . . . failed to appoint an arbitrator in due time'.

34
See e.g. Articles 30 and 31 of the ICC Rules of Arbitration; Y. Derains & E.A. Schwartz, A Guide to the New ICC Rules of Arbitration (The Hague: Kluwer Law International, 1998) at 306ff.

35
For a more detailed analysis of the position under French law, see P. Leboulanger, supra note 6 at 55ff.

36
See e.g. in England, Rule 3.1(2)(g) of the Civil Procedure Rules which provides for court-ordered consolidation. See also Civil Procedure Rules, part 19(III), which includes the concept of group litigation procedures. In Germany, Article 147 of the Code of Civil Procedure allows courts, under certain conditions, to order the consolidation of related proceedings. See also Article 187 of the Austrian Civil Code. Under Article 28 of the European Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Official Journal L 12, 16 January 2001, pp. 1-23), the consolidation of related actions pending in different member states is possible if both actions are pending at first instance and if the law of the court first seized permits consolidation.

37
See Cass. civ. 1re, 8 March 1988, Sofidif v. O.I.A.E.T.I., Bull. civ. 1988.I, No. 64, Rev. arb. 1989.481 (Annot. C. Jarrosson), reversing Paris, 19 December 1986, O.I.A.E.T.I. v. Sofidif, Rev. arb. 1987.359 and the commentary by 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)' [1987] Rev. arb. 275; W.L. Craig, W.W. Park, J. Paulsson, International Chamber of Commerce Arbitration, 3d ed. (Oceana Publications/ICC Publishing, 2000) at 181ff.

38
27 December 1977, Dale Metals Corp. and Overseas Development Corp. (USA) v. KIWA Chemical Industry Co. Ltd. et al. (Japan), 442 F.Supp. 78 (1977), (1979) IV Y.B. Comm. Arb. 333. See also M.E. Schneider, supra note 2 at 110111.

39
See Paris, 19 March 1987, Kis France v. A.B.S., Rev. arb. 1987.498 (Annot. L. Zollinger).

40
See the procedural decision in ICC case 7453, J.D.I. 1997.1082; see also B. Hanotiau, supra note 24 at 272.

41
See the 1991 partial award in ICC case 6719, J.D.I. 1994.1071. On this issue, see also the 1992 final award in ICC cases 7385 and 7402, (1993) XVIII Y.B. Comm. Arb. 68.

42
As it happened, the parties did not follow this suggestion. See also K.P. Berger, 'Set-Off in International Economic Arbitration' (1999) 15 Arbitration International 53 at 65, who cites, in footnote 88, the second interim award in ICC case 5124 [unpublished]: '[Adjudicating the set-off in the present arbitration] depends on whether the parties are prepared to simplify proceedings and to enter into an agreement to [extend the scope of the arbitration agreement to the cross-claim]. The Tribunal can only express its willingness to cooperate if this would be the case.'

43
J.C. Chiu, supra note 8.

44
On this issue, see Fouchard Gaillard Goldman, supra note 11 at §§ 518-523; B. Hanotiau, supra note 24 at 299ff; P. Leboulanger, supra note 6 at 46ff; M. Platte, supra note 8; K.P. Berger, supra note 42 at 66-67.

45
P. Leboulanger, supra note 6 at 70.