1. Introduction

Consider the following situation. A company plans to build a facility for the liquefaction of natural gas on a sandy island in the Persian Gulf. The liquefaction takes place by placing the gas into tanks and freezing it into a liquid state at extremely low temperatures. The tanks in which the process takes place are huge: a hundred yards in diameter and a hundred feet tall. To build these tanks, the company hires a contractor, who in turn hires a subcontractor for the specific purpose of supplying certain building materials and incorporating them into the tanks as they are being built.

Unfortunately, after the facility goes into operation, defects are noticed in the structure of the tanks. Cracks appear, and tanks have to be repaired at a cost of millions of pounds. The company blames the contractor for the problem, claiming that the tank design was defective. The contractor blames the subcontractor, claiming the materials were inadequate for the sandy soil of the island. The contract between the facility owner and contractor has an arbitration clause, and so the owner brings a claim against the contractor. The contract between the contractor and the sub-contractor also has an arbitration clause, albeit one that differs significantly from the one in the main contract, and so the contractor brings a separate claim against the sub-contractor.

The question then is whether there must be separate arbitrations for the two contracts or whether there should be only one proceeding. Separate proceedings could result in inconsistent rulings on points of common [Page35:] concern - such as what actually caused the cracks in the walls of the tanks and who was responsible - but a single proceeding would seem to conflict with the intent of the parties, as expressed in their decision to have two contracts between three separate parties, each with its own arbitration clause. 1

This paper considers such situations from the perspective of an arbitrator charged with this question - dépeçage or consolidation. in some instances, an arbitrator considering whether to consolidate or keep separate related disputes must inquire into his or her authority under national legislation or the rules of international arbitral institutions. in other instances, the answer to this question is driven more by an interpretative analysis, namely whether the parties intended for multiple, connected agreements to be considered as part of a single proceeding. in all instances, however, the arbitrator must weigh two competing principles. First, the fundamental notion that the arbitration derives its authority from the consent of the parties.2 Second, the idea that arbitration should be a system of dispute resolution that is relevant to the needs of international commerce, actually resolves disputes and does so with a minimum of unnecessary delay and expense.

This paper suggests that, while the policy-oriented goals of effective and efficient dispute resolution are highly appropriate from a systemic perspective, in a case-specific context they must yield to the clearly expressed will of the parties. To conclude otherwise is to make the best the enemy of the good and to threaten the foundation of consent upon which the international commercial arbitration system is based. 3

2. Legislative and institutional rules as a source of authority for Consolidation or dépeçage

Often, the decision of an arbitrator whether or not to consolidate is fundamentally impacted by national legislation and the institutional rules under which the arbitration is taking place. 4 In a few instances, the arbitrator's job is made easier by the fact that the power to consolidate is consigned to the courts, rather than the arbitrator. 5 In these cases, the arbitrator's role is naturally limited.

Where national legislation empowers the arbitrators to consolidate, it commonly authorizes consolidation only in the presence of the parties' positive consent. For example, Section 35 of the English Arbitration Act of 1996 provides that:

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"(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."

Other Commonwealth and former Commonwealth countries, such as Singapore and Ireland, have passed similar legislation. 6

While these laws make clear that consolidation is permissible under some circumstances, they do not add much insight to any of the more complicated permutations of the consolidation analysis, such as when both parties do not agree to consolidate or when the consolidation would implicate a separate proceeding that is already ongoing. In this regard, the Australian international Arbitration Act represents a marked departure from the model generally embraced by the Commonwealth community. Section 24 of the Act allows for a party to arbitral proceedings before an arbitral tribunal to apply to the tribunal for a consolidation order on any of three grounds: (1) 'a common question of law or fact arises in all those proceedings'; (2) 'the rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions'; or (3) 'for some other reason specified in the application, it is desirable that an order be made [for consolidation]'. 7 Importantly, this procedure provides for consolidation whether or not all the proceedings at issue are before the same arbitral tribunal. Where related proceedings are being heard by different tribunals, the law directs the panels to communicate, jointly deliberate and, if possible, issue a joint order determining whether to consolidate the proceedings, sequence them according to an agreed-upon timeline or, alternatively, stay any of the proceedings pending the determination of any other proceeding. 8

By clarifying the procedure for consolidation and allowing consolidation based upon a single party's application, the Australian law takes a stronger pro-consolidation approach than the laws of most other countries. 9 The problem with this law, however, is that in setting out a detailed procedure for consolidation, it also limits the parties' autonomy to craft an arbitration agreement that takes a different position with respect to consolidation. Parties [Page37:] may have legitimate interests in opposing an arbitral framework that allows for easy consolidation - such as, for example, an interest in arbitration as a vehicle for targeted dispute-resolution involving parties that can be reliably identified in advance - and these interests could be substantially frustrated under this law.

The same tension is present in the rules of international arbitral institutions that relate to consolidation. Several prominent international arbitral institutions allow for consolidation by the relevant institution (not the arbitral tribunal) of multiple proceedings in the absence of both parties' consent. For example, Article 4(6) of the rules of Arbitration for the international Chamber of Commerce (ICC) authorize the ICC Court10 to consolidate multiple proceedings when several conditions are met: (1) consolidation is requested by a party; (2) the two (or more) related arbitrations are proceeding under ICC rules; (3) the arbitrations concern the 'same parties'; and (4) the arbitrations arise from the same 'legal relationship'. 11

Other international arbitral institutions have adopted similar provisions, some of which allow for consolidation in situations where neither party has so requested. 12 In a certain sense, these provisions are more sympathetic to consolidation than the British legislative model, insofar as they allow consolidation in the absence of the parties' agreement. Furthermore, at least in theory, they do not depart from the intent of the parties, since by agreeing upon a particular arbitral institution in their arbitration agreement, the parties are submitting to a certain set of procedural devices - including any rules that provide for consolidation even in the absence of both parties' agreement. The reality, though, is that when arbitral institutional rules depart from parties' reasonable expectations regarding their procedural rights - particularly in situations where the procedural rules result in a real or perceived inequality between the parties - party autonomy can be fatally undermined.

This concern was made manifest in the watershed <italic>Dutco</italic> case. 13 The case arose from a consortium agreement that involved three parties - bKMi, Siemens and Dutco - entering into a contract to build a cement factory. 14 The consortium agreement included an arbitration clause that provided for ICC rules and the appointment of three arbitrators. Dutco initiated the arbitration against Siemens and bKMi and chose its arbitrator. Given that their interests were not fully in alignment, Siemens and bKMi were unable to agree upon a joint party-appointed arbitrator. in order to avoid having the ICC appoint a single arbitrator on behalf of both respondents, they eventually nominated an arbitrator, but only under protest. After the arbitration was concluded, Siemens and bKMi initiated an action in the French courts to set aside the [Page38:] award on jurisdiction on the grounds that it violated the fundamental principle of equality between the parties, notwithstanding that the ICC rules had mandated the arbitrator-selection procedures employed. 15

The case eventually reached the French Cour de cassation, which invalidated the award, concluding that 'the principle of the equality of the parties in the designation of the arbitrators is a matter which concerns public policy, which can only be waived after the dispute has arisen.' 16 While many arbitral institutions reacted swiftly to Dutco by changing their rules to preclude situations where parties have unequal power over the constitution of the panel, 17Dutco's continuing importance should not be underestimated. By suggesting that even advance waivers are in some circumstances void for reasons of public policy, Dutco lends support to the broader proposition that arbitrators must be wary of consolidation - even when provided for by the relevant arbitration rules - when it appears to interfere with the principle of party autonomy and the equal treatment of the parties in the constitution of the arbitral tribunal.

In sum, while national legislation or arbitration rules sometimes authorize the courts or arbitral institutions to consolidate cases over the objections of a party, arbitral tribunals themselves appear not to have been accorded this power through the relevant laws or arbitration rules.

3. Deriving authority for Consolidation or dépeçage from the arbitration agreement itself

Where national legislation or the rules of the relevant international arbitral institution do not provide guidance regarding consolidation or dépeçage, an arbitrator must commonly engage in an interpretative analysis of the arbitration agreement (or agreements in the case of a multiple-contract dispute). Except in the rare case where a consent to consolidate appears to be present in the arbitration clauses, in the face of a party's objection the arbitrator is obliged to determine whether the parties' consent to consolidate is fairly implied from the terms of their agreement.

As an arbitrator undertakes this analysis, it is appropriate to consider whether there exists a presumption, either in favour of consolidation or opposed to it. While arbitrators are familiar with the traditional notion of interpreting arbitration agreements in favorem validitatis, 18 that is to say, interpreting arbitration agreements broadly, there is little discussion of the question whether it is appropriate to apply a specific presumption for or against consolidation.

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Two US courts of appeal have grappled with this question as it relates to the courts' power to consolidate. in American Centennial Insurance Co. v. National Casualty Co., 19 the Sixth Circuit considered a case in which an insurance company embroiled in a complex reinsurance dispute sought to have all aspects of the dispute resolved in a single proceeding. When the respondents resisted, the claimant filed an action in federal court seeking to have the proceedings consolidated. The court rejected the effort, explaining that 'a district court is without power to consolidate arbitration proceedings, over the objection of a party to the arbitration agreement, when the agreement is silent regarding consolidation.' 20 by seemingly requiring a clear statement that consolidation is permissible - and by refusing to allow for the possibility that an arbitration agreement, by itself, while silent on the exact question of consolidation, may yet strongly suggest an agreed upon intent to consolidate 21 - the Sixth Circuit adopted a strong presumption against consolidation.

The Sixth Circuit's approach was explicitly rejected in 2000 by the Seventh Circuit, which refused to adopt a presumption either in favour of or against consolidation. in Connecticut General Life Insurance Co. v. Sun Life Assurance Co. of Canada, 22 the Seventh Circuit confronted a similar situation involving a multi-party dispute with multiple contracts among insurers and reinsurers. In determining whether or not to allow for consolidation, the court explicitly rejected a rule requiring a clear statement in the arbitration agreements authorizing consolidation. The court explained that 'we cannot see any reason why, in interpreting the arbitration clause for purposes of deciding whether to order consolidation, the court should (as the language […] from the American Centennial case might, if read literally, be thought to suggest) place its thumb on the scale, insisting that it be "clear", rather than merely more likely than not, that the parties intended consolidation.' 23

Applying this debate to the context of an arbitrator's decision whether or not to consolidate, there is considerable merit to the Seventh Circuit's approach. As noted, a principal objective of the arbitrator in structuring the proceedings is to give effect to the intent of the parties. This is a familiar jurisprudential posture, not just for arbitration matters but, as the court in Connecticut General noted, for issues of contract interpretation generally. 24 For an arbitrator to require a clear statement allowing consolidation is to indulge in a policy preference against consolidation. This might be appropriate from the perspective of a legislative body or an international arbitral institution, but it is not the role of the arbitrator.

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Indeed, if there is to be any presumption, it might be said to lean in favour of consolidation. As Lord Denning noted in the Abu Dhabi case referred to in note 1: 'it is most undesirable that there should be inconsistent findings by two separate arbitrators on virtually the self-same question, such as causation. it is very desirable that everything should be done to avoid such a circumstance.' (p. 427).

Concluding, then, that an arbitrator should investigate the intent of the parties regarding consolidation as an issue to be proven, one way or another, without any presumption against consolidation and bearing in mind that most business people would most probably have intended to avoid the problems pointed out by Lord Denning, the next question is whether there are any indicia that allow an arbitrator to find implied consent or objection to consolidation. in a multi-contract setting, this question is typically answered by reference to the relationships among the contracts themselves, including the degree of similarity of the wording of the arbitration clauses. Where multiple parties are involved, the relationship among the parties also impacts the analysis. 25

With respect to these indicia, it is instructive to compare two cases, ICC case no. 4367 26 and ICC case no. 8420. 27 In the first case, the arbitration was initiated by a US claimant who sold certain industrial equipment. The respondent was an Indian company that used the claimant's equipment to process and sell products in India. in 1964, the two parties entered into a sales agreement that included an arbitration clause. in 1982, a dispute arose between the parties on account of unpaid interest on certain promissory notes relating to their ongoing business relationship. The respondent argued that the promissory notes (which did not have arbitration clauses) were separate agreements from the original 1964 contract and thus that there was no arbitral jurisdiction to hear the dispute. The panel disagreed, reasoning that 'even if, which we dispute, the promissory notes were separate contracts, we would find that the arbitration clause was sufficiently wide to embrace disputes between the parties arising from them.'28 Thus, for purposes of its holding, the panel relied on the relationship between the contracts as the dispositive indicia to support consolidating the multiple contracts into a single proceeding. because the promissory notes were ordinary incidents to the underlying 1964 contract, the panel concluded that they were fairly within the scope of the original contract's arbitration clause. 29

The tribunal came out in the opposite direction in ICC case no. 8420. In this case, the claimant, a Syrian purchaser, and the respondent, an Italian supplier, concluded an agency agreement whereby the claimant undertook to promote [Page41:] the respondent's products and provide general assistance to its business. Four years later, the two parties entered into two secondary contracts, both of which related to a discrete, specific project. When a dispute arose in relation to these secondary contracts, the claimant initiated an arbitration, relying on an arbitration agreement in the principal agency contract. The tribunal concluded that '[t]he two "secondary" contracts […] represent neither a fulfillment nor an amendment of the previous contractual relationship, i.e. the agency agreement, but something completely new, which gives the parties different duties and obligations which are not directly connected with the agency.' 30 Thus, while focusing on the same dispositive indicia as the panel in ICC case no. 4367 - the relationship between the contracts - here the tribunal came out in the opposite direction.

An intriguing conceptualization of indicia relating to the connectedness of contracts was employed by the tribunal in the Zurich Chamber of Commerce award in case no. 273/95 of 31 May 1996. 31 The panel was confronted with a complex and interconnected group of contracts involving the supply of raw materials to the claimant's processing plant in Hungary. Even though the various contracts and agreements were signed by different parties and used different wording, and even though some contracts had arbitration clauses and some did not, the panel concluded that it had jurisdiction over the whole group. its discussion resembles the analyses of the panels above insofar as it focused on the relationship between the contracts - what the panel in this case referred to as the 'group of contracts theory' - but what makes the discussion of this decision unique is that it conceives of contracts as existing in multiple layers, with 'top' layer agreements setting up frameworks between the parties, and 'bottom' layer agreements executing specific transactions. 32

In the tribunal's view, so long as the top layer agreements have arbitration clauses, lower layer contracts would be covered by them: '[w]here in the top layer agreements the parties have provided for a particular type of arbitration any dispute that arises under a contract of a lower layer such as the disputes leading to claimants' claims will be governed by the top layer arbitration clause unless there is a different arbitration clause or a different jurisdiction clause on a lower level or in the contract under which a particular, specific dispute arises.' 33 By categorizing the contracts at issue in the case into layers and fashioning a general rule along these lines, the panel took what is often a factor-based standard (i.e. whether the parties intended to provide for consolidation) and reframed it as more of a bright-line rule.

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However helpful such a rule might be in situations involving contracts that can be intelligibly sorted into multiple layers, the analysis is of less assistance when an arbitrator is confronted with a multiple contract group involving multiple parties where each contract belongs to the same layer. Such a case was confronted by the tribunal in a matter before the Chamber of national and international Arbitration of Milan in 1996. 34 In the case, claimant A entered into an agreement with respondent C to develop a new pharmaceutical product. Claimant A had also entered into identical contracts with claimants B and company D. The costs of research were to be shared by parties A, B, C and D. Each of these contracts had an identical arbitration clause, even though b and C had no arbitration agreement between them. The question before the panel was whether these contracts constituted one multilateral agreement that would allow claimant b to initiate, jointly with claimant A, an arbitration against defendant C. The tribunal decided that a single agreement had not been created. rather, in the panel's view, what had been created by the parties was merely a series of bilateral agreements, each with an arbitration clause limited by the terms of the contract in which it was located. 35 Although requiring claimant b to proceed against respondent C in state court risked inconsistent judgments and measured costs, the panel reasonably concluded that it was inappropriate to bind respondent C to an arbitration against a party with which it had neither expressly nor implicitly manifested an agreement to arbitrate.

A final consideration that bears mentioning is cost. In assessing the intent of the parties, an arbitrator may reasonably assume that the parties did not intend for any arbitrations arising between them to be unduly costly. This is a slightly different matter from considering the issue of cost from a system-wide perspective. For example, in an arbitration between A and b, it might decrease overall costs to allow B to implead a third respondent, C. However, this would certainly increase the costs for C, and probably for A as well. An arbitrator using unnecessary cost avoidance as an indicia of the will of the parties in this circumstance would not find much support for consolidation.

A case where the panel did appropriately consider cost was in a 2002 award of the Hamburg Chamber of Commerce. 36 In that case, a dispute arose between the claimant and respondent as to whether the principal claim and counterclaim should be consolidated into a single arbitration, or, alternatively, whether they should be allowed to proceed separately. In deciding against consolidation, the panel considered several indicia, including cost to the parties. The panel explained that: '[t]he separation of the proceedings does

not disadvantage the parties, in particular from the point of view of costs. The fees of the arbitral tribunal are namely charged separately for claim and [Page43:] counterclaim if no set-off is allowed. This rule applies also when both [claim and counterclaim] are heard by one and the same arbitral panel.' 37

4. Conclusion

An arbitrator's decision regarding consolidation or dépeçage is appropriately informed by each of the considerations described above: national legislation, arbitral rules, the relationship between the contracts, the relationship between the parties and cost. At the heart of the issue, though, where the decision is truly left to the arbitrator's discretion (as opposed to the arbitral institution itself or the national courts), there is really only one question: did the parties intend to allow for the related disputes to be considered as part of a single proceeding?

Gary Born encapsulated this author's view on the litmus tests to be applied by arbitrators who must decide on dépeçage or consolidation when he wrote that these issues:

"have [been] resolved […] in favor of party autonomy and contractual privity. The foundation of international commercial arbitration is the parties' agreement to arbitrate and their procedural autonomy. Equally important, parties agree to arbitrate with particular other parties, according to specified procedures - not to arbitrate with anybody, in any set of proceedings." 38

To this may be added that Article iV(1) of the New York Convention should not be disregarded. A court must be shown the arbitration agreement in writing between or among the parties as a precondition for the enforcement of an arbitral award. Thus, it could be a grave error to allow considerations of procedural efficiency or cost considerations to trump the principles set out above, lest arbitrators find that they know the price of everything, but the value of nothing.

In the final analysis, consolidation is a useful tool in cases where it can be fairly reconciled with the parties' intent. However, arbitrators must never confuse their role with that role of national courts, nor should they forget that, even when consolidation is authorized by national legislation or institutional rules, the ultimate source of the arbitrator's authority is the consent of the parties.

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1
The facts of this hypothetical case are drawn from Abu Dhabi Gas liquefaction Co. v. Eastern bechtel Corp. [1982] 2 lloyd's rep. 425. in that case, decided under the English Arbitration Act, 1950, the Court of Appeal appointed the same sole arbitrator for both arbitrations.

2
See Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, at § 51 (Canadian S. Ct.) ('arbitration is a creature that owes its existence to the will of the parties alone'); see also Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974) ('As the proctor of the bargain, the arbitrator's task is to effectuate the intent of the parties.').

3
In addition to the overall risk to the system, there are also specific risks to enforcement where an arbitrator or arbitral institution chooses procedural rules that are at odds with the expressed will of the parties. The new york Convention allows for non-recognition of an arbitral award if '[t]he composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.' Convention on the recognition and Enforcement of Foreign Arbitral Awards, Art. V(1)(d), 10 June 1958, 330 UnTS 38.

4
Note though that several important model and national laws do not address the subject of consolidation. See, e.g., UnCiTrAl Model law on international Commercial Arbitration, Un Docs. A/40/17, A/61/17 (2006); US Federal Arbitration Act, 9 U.S.C. § 1 et seq.; French new Code of Civil Procedure, Arts. 1492 et seq.

5
One prominent example of national legislation that empowers the court, as opposed to the arbitrator, to consolidate is the netherlands Arbitration Act, which provides that: " 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."Art. 1046 of the Code of Civil Procedure (netherlands Arbitration Act of 1 December 1986). Another variant on this type of law is the Hong Kong Arbitration ordinance, which grants the court the power to consolidate even in the absence of a party's request: "(1) Where in relation to two or more arbitration proceedings it appears to the Court (a) that some common question of law or fact arises in both or all of them, or (b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this section, the Court may order those arbitration proceedings to be consolidated on such terms as it thinks just or may order them to be heard at the same time, or one immediately after another, or may order any of them to be stayed until after the determination of any other of them." Section 6b of the Hong Kong Arbitration ordinance (5 July 1963).

6
See Section 9 of the Irish international Commercial Arbitration Act of 1998; Section 26 of the Singapore Arbitration Act of 2001.

7
Australia international Arbitration Act of 1974, § 24(1)(a)-(c).

8
Ibid., at §§ 24(2), (5) and (6).

9
Though the law is in parity with the legislation of countries that allow courts to consolidate in the absence of both parties consent. See supra note 5.

10
The ICC Court is not a panel appointed for a particular case, but rather the ICC's standing body tasked with ensuring the application of the rules of Arbitration and overseeing the overall ICC arbitration process.

11
Article 4(6) of the ICC rules of Arbitration (1998).

12
See, e.g., Belgian Centre for the Study and Practice of national and international Arbitration (CEPANI), CEPANI Arbitration rules (2005) Article 12: 'When several contracts containing a CEPANI arbitration clause give rise to disputes that are closely related or indivisible, the Appointments Committee or the Chairman 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 of the most diligent party, or upon CEPANI's own motion.' Stockholm Chamber of Commerce, Arbitration rules (1 January 2010) Article 11: 'if arbitration is commenced concerning a legal relationship in respect of which an arbitration between the same parties is already pending under these rules, the [SCC's] board may, at the request of a party, decide to consolidate the new claims with the pending proceedings.'

13
Siemens AG and BKMI Industrieanlagen Gmbh v. Dutco Construction Co., 119 J.D.i. (Clunet) 707 (French Cour de cassation civ. lre) (1992).

14
See Bernard Hanotiau, Complex Arbitrations (2005) pp. 200-207 (detailed treatment of Dutco's background, holding and implications).

15
In the interests of full disclosure, the author was Secretary General of the ICC International Court of Arbitration at the time.

16
Dutco, supra note 13, at p. 708.

17
See, e.g., Article 10 of the ICC rules of Arbitration (1998) (requiring that, in Dutco situations, where co-claimants or co-respondents are unable to agree on an arbitrator, the ICC Court may appoint the panel). Commentators have also suggested an alternative solution to the Dutco problem in a three-party arbitration: allow each party to select an arbitrator, at which point the three party-appointed arbitrators will select two neutral arbitrators. This was the approach applied by the Second Circuit in Compania Española de Petroleos, S.A. v. Nereus Shipping, S.A., 527 F.2d 966 (2d Cir. 1975), though the decision was subsequently overruled in United Kingdom v. Boeing, 998 F.2d 68 (2d Cir. 1993). See Irene M. Ten Cate, 'Multi-Party and Multi-Contract Arbitrations: Procedural Mechanisms and interpretation of Arbitration Agreements Under U.S. law', Am. rev. int'l Arb. 15 (2004) pp. 133, 143-144.

18
ICC partial award in case no. 8420 of 1996, y.b. Com. Arb. 25 (2000) p. 328 (identifying the 'trend in international arbitration to interpretate [sic] arbitration agreements in the widest possible way in favorem validitatis […] arbitration [being] a usual practice in international business matters' [second alteration in original]).

19
951 F.2d 107 (6th Cir. 1991).

20
Ibid., at p. 108.

21
As discussed infra, there are several indicia that might suggest an agreed-upon intent to consolidate a multi-contract or multi-party disagreement.

22
210 F.3d 771 (7th Cir. 2000).

23
Ibid., at p. 774.

24
Ibid.

25
See, e.g., ICC interim award in case no. 6000 of 1988, ICC Ct. Bull. 2 (1991) p. 31 (suggesting that where parties are closely related, it can be justified to extend the arbitral clause of a contract binding one of the parties to the other parties as well). This factor, which is also termed the 'group of companies' question, is the subject of a separate analysis in this publication by Yves Derains.

26
ICC interim award in case no. 4367 of 16 November 1984, YCA 11 (1986) pp. 134-139.

27
ICC partial award in case no. 8420 of 1996, YCA 25 (2000) pp. 11-432.

28
ICC interim award in case no. 4367, YCA 11 (1986) p. 137.

29
A similar conclusion was reached by the court in Fletamentos Maritimos SA v. Effjohn International BV [1996] 2 Lloyd's Rep. 304. The parties in Fletamentos signed an agreement to start a cruise business which included an arbitration clause. They later agreed to jointly purchase a cruise ship in a contract that did not have an arbitration clause. The court allowed an arbitration to move forward with respect to a dispute involving the ship purchase agreement, notwithstanding the fact that the agreement lacked an arbitration clause because, in the court's view, the arbitration clause in the initial agreement encompassed the related dispute arising under the ship purchase agreement.

30
ICC partial award in case no. 8420, YCA 25 (2000) p. 339.

31
Zurich Chamber of Commerce award in case no. 273/95 of 31 May 1996, YCA 23 (1998) pp.128-148.

32
Ibid., at pp. 128-130.

33
Ibid., at p. 134.

34
Chamber of national and international Arbitration of Milan, award of 2 February 1996, YCA 22 (1997) pp. 191-196.

35
Ibid., at pp. 192-193.

36
Hamburg friendly arbitration award of 27 May 2002, YCA 30 (2005) pp. 17-21.

37
Ibid., at p. 18. Though cost is appropriately considered in this situation, one might quibble with the tribunal's conclusion that cost to the parties would be the same whether or not the two claims were consolidated. The fees of the arbitral tribunal might be the same, but that is no guarantee that other costs, such as legal fees, would be similar as well.

38
G. Born, International Commercial Arbitration (Kluwer Law International, 2009) p. 2072.