1. Introduction

Modern industrial and commercial transactions have reached such a degree of complexity that the classic one-contract-two-parties model is threatened with extinction. Rather, multiple parties enter into multiple contracts for the completion of a single economic transaction. The rights and obligations of the parties in such transactions are intrinsically linked and interdependent. As a result, one event may give rise to a multi-party dispute. Like in a game of dominoes, the first piece topples the second, which topples the third, and so forth. Ideally, such multi-party disputes would be resolved in one proceeding, by means of one decision. Ideally indeed, since another side-effect of the growing complexity of trade and commerce is that parties progressively opt for arbitration, attracted by the efficiency of its procedures and the expertise of the arbitrators. That choice as such does not create a problem if parties coordinate their (arbitration and other) dispute resolution clauses. Unfortunately, they rarely do so. In one transaction, parties A and B may opt for LCIA arbitration with three arbitrators sitting in London; parties B and C for ICC arbitration with a single arbitrator sitting in Paris; parties C and D for ad hoc arbitration under the UNCITRAL Rules; and parties D and A for the courts of New York. The multi-party dispute is spread over several proceedings, each including some of the parties. Since all these proceedings deal with the same transaction, the judges and arbitrators are presented with connected and even identical questions of fact and law.

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Two arguments plead in favour of the consolidation of such related proceedings. Firstly, overall procedural efficiency is generally higher if the same questions are only discussed and decided once. Secondly, if the first decision-maker's findings have no binding effect on the decision-makers in parallel or subsequent proceedings, the decision-makers may well render inconsistent decisions on related or identical issues of fact and law. However, '[t]he lawyer's truth is not Truth, but consistency or a consistent expediency.' 1 If that be so, what is left of the reliability of courts and arbitral tribunals when they reach inconsistent decisions in disputes resulting from connected agreements? Inconsistency violates the normal sense of judicial propriety in cases where a party loses a certain argument while another party in a similar or identical position wins the same argument. 2 The losing party may feel that it is the victim of unequal treatment. 3

For these reasons, the consolidation of disputes resulting from connected agreements is often presented as a welcome or even necessary solution. So far, the focus in legal writing has been mostly on the consolidation of related arbitration proceedings. For multiple reasons, which we will examine further on, the role of the judge in such situations is rather limited. A question that is rarely looked into, however, is whether parallel court and arbitration proceedings resulting from connected agreements may be consolidated and, if so, what the role of the judge may be in such consolidation. These are the core questions of this article.

Part I examines why the court-ordered consolidation of arbitral proceedings is so rare and whether the same reasons also speak against the court-ordered consolidation of court and arbitral proceedings. As the analysis shows that the appeal of such consolidation may be even lower than that of consolidated arbitral proceedings, Part II examines whether there may be situations in which the consolidation of court and arbitral proceedings is necessary, rather than merely convenient.

2. Insurmountable obstacles?

There are numerous arguments against the consolidation of arbitration proceedings by the court. The fact that the legislation of most countries does not provide for such consolidation is both a consequence of those arguments and an obstacle to consolidation. At times it has been tried to consolidate arbitration proceedings on the basis of the statutory provisions for the consolidation of court proceedings. 4 However, since such an extension is clearly not in line with the ratio legis, it is generally rejected. 5

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The few cases in which the court-ordered consolidation of arbitration proceedings is explicitly provided for may be divided into two categories: those where consolidation requires the consent of all parties and those where it does not. In the first category we find such examples as the English Arbitration Act and the law of British Columbia. Likewise, the US Court of Appeals for the Second Circuit confirmed that consolidation requires consent in the famous case of UK v. Boeing. 6

By contrast, the Netherlands Arbitration Act, 7 the Hong Kong Arbitration ordinance, 8 the New Zealand Arbitration Act 1997 10 and the US Uniform Arbitration Act leave the question of consolidation to the discretion of the court. It suffices that a party to one of the arbitration proceedings requests consolidation. The main objection against these systems is that court-ordered consolidation violates party autonomy. Firstly, the intervention of the court would violate the parties' will to resort to arbitration and to stay as far away from the courts as possible. 10 Moreover, since parties may end up in arbitration with parties they do not have an arbitration agreement with, fundamental rights such as the right of access to a court may come into play. 11 Furthermore, if Article V(1)(a) of the New York Convention may be interpreted as covering not only situations in which the arbitration agreement is invalid but also situations in which there simply was no arbitration agreement between the parties, courts in other jurisdictions may refuse to recognize an arbitration award resulting from a consolidated arbitration. Finally, as a matter of practical necessity, the appointment of the tribunal and the arbitral procedure after consolidation will almost inevitably deviate from the rules established by at least one of the arbitration agreements. Thus, in consolidated multi-party arbitration, parties may lose their opportunity to appoint their own arbitrator. on that basis, too, courts in other jurisdictions may refuse to recognize the award (Art. V(1)(d) of the New York Convention). 12

These arguments are mostly rebutted via an opt-out system and a presumption of implied consent. The Dutch Act and the US Uniform Arbitration Act, for instance, explicitly provide the parties with an opportunity to exclude consolidation by the court in their arbitration agreement. Parties that opt for arbitration in one of these countries and fail to exclude consolidation are presumed to have agreed to the rules on consolidation, including the power of the court to appoint the tribunal and determine the procedural rules. 13 The New York Convention, too, may provide escape routes, as the relevant provisions of Article V refer to the law of the country where the arbitration took place or where the award was made. Since the consolidation itself and the resulting appointment of the tribunal and [Page51:] procedural rules are in accordance with that law, there is no reason to refuse recognition of the award.114Furthermore, the consolidation of arbitration proceedings between A and B and arbitration proceedings between B and C may technically be said not to amount to an arbitration between A and C. Therefore, the right of A and C to resort to the courts for their mutual disputes would not be violated. 15 This reasoning, however, presupposes that A and C cannot directly claim relief vis-à-vis each other in the consolidated arbitration, but only vis-à-vis B. That limitation may undermine the practical use of consolidation.

These arguments in favour of court-ordered consolidation are not of equal force when it comes to the consolidation of parallel court and arbitral proceedings. Such consolidation will necessarily result in proceedings for which at least one of the parties has not opted. either the consolidated proceedings are referred to the court, in which case the arbitration agreement is disregarded, or they are referred to an arbitral tribunal, in which case at least one of the parties is undeniably deprived of its right of access to a court. Implicit consent cannot even be an option in those countries where consolidation is provided for by statute, since these provisions only cover the consolidation of arbitration proceedings or the consolidation of court proceedings, but not the consolidation of court and arbitral proceedings.

On the upside, a judgment resulting from proceedings that were consolidated into one court proceeding cannot be refused enforcement on the basis of the New York Convention.116 Moreover, there is generally no ground for refusing such enforcement in national legislation either if a judgment is rendered in breach of an arbitration agreement. This, however, may change in the (near) future. The european Commission's proposal to include such a ground in the new Brussels I Regulation was one of the (only) suggestions in the green Paper that could count on unanimous support from its commentators.

Where official consolidation is unavailable, certain procedural alternatives may alleviate the negative consequences. The best known examples are the appointment of the same arbitrator(s) for all arbitration proceedings and joint hearings. 17 These alternatives, however, cannot be applied in the case of parallel court and arbitral proceedings. Clearly one cannot appoint the judges in the court proceedings as arbitrators, 18 let alone appoint the arbitrators as judges. Likewise, the (private) arbitration hearings cannot take place in a public court room and vice versa.

Furthermore, the practical difficulties that arise from the consolidation of arbitration proceedings are equally harsh, or even harsher, in the case the [Page52:] consolidation of court and arbitral proceedings. These difficulties include such issues as the point in the proceedings up to which one may request consolidation, 19 who pays the fees of the arbitrators that are dismissed, 20 how to deal with confidentiality,21 and so forth. The discussion on these issues may in itself cause considerable delay. 22 For these reasons, the English legislator decided not to provide for court-ordered consolidation of arbitration proceedings in the 1996 Act. 23

Finally, even in cases where there is a legal basis for court-ordered consolidation and the practical problems can be overcome, the fact of the matter is that consolidation is mostly impossible if the concurrent arbitrations have their seat in different jurisdictions. Thus, the Dutch Arbitration Act only provides for the consolidation of two arbitrations taking place in the Netherlands. 24 Moreover, some have argued that both proceedings must also be governed by the same law. 25 In international arbitration, these restrictions make the prospects for a successful consolidation very bleak. It is almost impossible to agree on a criterion for determining which court may assume jurisdiction to consolidate arbitration proceedings in different countries. 26 On this point, the situation may be slightly easier for the consolidation of court and arbitral proceedings. The obvious solution would be that the court where one side of the dispute is pending assumes jurisdiction over the entire dispute by way of consolidation. As long as the New York Convention grants every member state the authority to assess the applicability of an arbitration agreement under its own law, the court may have the possibility to set an arbitration agreement aside for the purpose of consolidation in appropriate cases.

This brings us to our next question. Under what conditions is the consolidation of court and arbitral proceedings - hypothetically into one court proceeding - appropriate? Considering the lack of statutory provisions, the risk of unenforceability, the practical problems and the problems of jurisdiction surrounding the issue, not to mention the necessary dismantling of the arbitration agreement between some of the parties, these conditions must be very strict. These questions are examined in greater depth in the next section.

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3. Exception for 'inseparable' disputes

a. Joinder and intervention

The existing criteria for the court-ordered consolidation of arbitral proceedings generally derive from the efficiency and consistency rationale. Thus, the Dutch Act allows for consolidation when the subject matter of both arbitrations is connected, while the Hong Kong, New Zealand and US arbitration acts allow for it when the dispute involves some common question of law or fact or arises from the same transaction. 27 These criteria, however, may be too liberal in an international context, particularly when the consolidation of court and arbitral proceedings deprives some of the parties of their arbitration agreement. Therefore, we need a much stricter criterion.

That criterion may be found in the concept of 'inseparable' disputes as applied in such jurisdictions as France and Belgium. Article 12 of the Belgian Code of Civil Procedure, for instance, provides that:

"Claims can be handled as connected claims when they are so closely related that it is desirable to consolidate them and judge them together, in order to avoid an outcome that would be incompatible, if said disputes would have been handled separately."

There is discussion among the Belgian courts as to what degree of incompatibility in the outcome of disputes is required to allow the consolidation of court and arbitral proceedings or the joinder or intervention of third parties that are bound by an arbitration agreement. on the one hand, some courts seem to be guided by the need for consistency in a wider sense. Thus, in one case, the Court of Appeal of Antwerp assumed jurisdiction over both the claimant's contractor and his insurer, even though the insurance contract contained an arbitration clause. The court based its decision on the need for legal certainty, uniformity of proceedings and consistency of judicial decisions. 28 The Court of Appeal of Brussels took a similar position. 29 In a claim brought by the victim of a fire, the court assumed jurisdiction over both the insurance company and the insurance broker even though the insurance contract contained an arbitration clause. The court was of the opinion that the same court should decide in these connected cases, as this was the only way to avoid inconsistent decisions.

The majority of courts, by contrast, are of the opinion that the need for consistency is not sufficient to disregard the arbitration agreement. Thus, in a case before the Court of Appeal of Liège, the owner of a property filed claims [Page54:] against the architect, the contractor and the sub-contractor. All parties except the sub-contractor were bound by an arbitration agreement. The court was of the opinion that, the unity of the dispute was no criterion in the Code of Civil Procedure that could be used to consolidate disputes that fell under different jurisdictions if they included the jurisdiction of an arbitrator. The court could assume jurisdiction despite the arbitration clause only if the cases were 'inseparable'. Such inseparability could only flow from 'the absolute material impossibility to enforce inconsistent decisions together'. 30 In the case at hand, the claims could only lead to individual orders for payment of money. Such orders could always be enforced simultaneously.31 The mere fact that the findings of an award and a judgment might be inconsistent was not sufficient to consolidate the cases, 'even if the inconsistency is shocking'. 32

Similarly, the Commercial Court of Hasselt decided that the claims of an owner against two contractors did not form an inseparable dispute, even though a decision on the liability of one might entail an implicit decision on the liability of the other. In the court's opinion, a judgment that rejected the claim against the first contractor would not be inconsistent with an arbitration award that rejected the claim against the second contractor.33 Alternatively, a judgment in which one claim was rejected and an award in which the other claim was accepted were simultaneously enforceable. The court did not consider a situation in which both claims were accepted. Nevertheless, those decisions would technically also be simultaneously enforceable, even though this would imply that the owner would receive double compensation. 34

Under this strict test of inseparability, the Courts of Appeal of Antwerp and Brussels should have reached a different result in the cases cited above. As to the former, an arbitral award ordering the insurer to cover the damage because it was caused by a natural disaster could be enforced simultaneously with a court judgment deciding that the contractor was liable for the damage because he committed a fault in the construction. Similarly, an arbitral award deciding that the insurance contract was valid could be enforced simultaneously with a judgment in which the broker was held liable because the court was of the opinion that the contract was invalid.

The same inseparability test is applied when a defendant in court proceedings claims indemnification from a third party with whom he has an arbitration agreement. 35 This was confirmed by the Cour de cassation. The Court of Appeal of Antwerp had decided that the main claim against the insured and the latter's claim for indemnity against the insurer were so closely connected that they should be decided simultaneously to avoid a situation in which the court and the arbitrator would reach inconsistent results. 36 The Cour de [Page55:] cassation quashed this decision, stating that the rules of connection do not set the arbitration clause aside and do not prevent the parties from bringing a claim for indemnity before an arbitral tribunal. 37

The French Cour de cassation has taken a similar position. Thus, in Quarto Children's Books v. Editions du Seuil and Editions Phidal, 38 the Cour de cassation stated:

"Méconnait le principe de Kompetenz-Kompetenz la Cour d'appel qui, saisi, d'une part du litige opposant une société française à une société anglaise et portant sur l'étendue des droits cédés en vertu d'un contrat de diffusion en France d'un ouvrage édité par la société québécoise pour avoir mis en vente en France un ouvrage identique, écarte la clause compromissoire stipulé dans le contrat de diffusion de l'ouvrage en se fondant sur l'indivisibilité de ces deux litiges et en précisant que l'existence d'une contrefaçon dépendait de la détermination des droits résultant du contrat, alors que la seule constatation d'une indivisibilité ne suffisait pas à faire obstacle au jeu de la clause d'arbitrage." 39

Even though the facts did not warrant consolidation in any of these cases, these decisions do not exclude that there may be situations in which the possibility of inconsistent outcomes may be strong enough to set the arbitration agreement aside in order to bring all disputes resulting from connected agreements before the same court. This will be the case when it is physically impossible to enforce both the orders of the arbitral award and the court judgment. The criterion excludes claims for payment, but leaves room for claims to do or not to do something or to give or not to give something.

b. Tierce opposition

i. Criterion of inseparability

The criterion of inseparability may further be illustrated by situations in which proceedings were not consolidated and a third party to the proceedings that are first to come to a decision claims a result that is inconsistent with that decision. In such situations, the question is whether the second claim may simply be continued and, if so, whether the conflict between incompatible orders will simply be 'solved' by means of a race to enforcement in which the right of the fastest prevails? Alternatively, does the party have to challenge the prior decision before it may claim the incompatible relief?

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In that regard, the third party's recourse, which is known in France and Belgium as tierce opposition, is highly interesting. Article 582 of the French Code of Civil Procedure provides an accurate definition of this means of recourse:

"La <italic>tierce opposition</italic> tend à faire rétracter ou reformer un jugement au profit du tiers qui l'attaque.

Elle remet en question relativement à son auteur les points jugés qu'elle critique, pour qu'il soit à nouveau statué en fait et en droit."

In common law systems, there is no recourse against judgments or awards that is specifically reserved to third parties. Sometimes the term tierce opposition is translated as 'third-party action'. However, in common law jurisdictions, and the United States in particular, a third-party action may refer to the (forced) intervention of a third party in ongoing proceedings. Therefore we use the original French term tierce opposition to avoid confusion.

Unlike a challenge or appeal, a successful tierce opposition does not necessarily quash the original decision. In normal circumstances, it merely implies that the decision is no longer 'opposable' against the third party. However, between the parties and vis-à-vis all other third parties, the decision does not cease to exist. Thus, the first part of Article 591 of the French Code of Civil Procedure reads:

"La décision qui fait droit à la <italic>tierce opposition</italic> ne rétracte ou ne réforme le jugement attaqué que sur les chefs préjudiciables au tiers opposant. Le jugement primitif conserve ses effets entre les parties, même sur les chefs annulés. […]"

Likewise, Article 1130 of the Belgian Code reads:

"La juridiction qui accueille le recours en <italic>tierce opposition</italic>, annule, en tout ou en partie, la décision attaquée, à l'égard du tiers seulement. […]"

Therefore, a successful tierce opposition results in two inconsistent decisions: the original decision and the decision on tierce opposition.

The only exception to this limited effect occurs in cases where the resulting inconsistency is of such importance that the original decision and the new [Page57:] decision are irreconcilable. Thus, Article 591 of the French Code of Civil Procedure continues:

"[…] Toutefois la chose jugée sur <italic>tierce opposition</italic> l'est à l'égard de toutes les parties appelées à l'instance en application de l'article 584."

This Article 584 states that, in the case of inseparability, tierce opposition is only admissible if all parties are called to the suit. 40 Likewise, Article 1130 the Belgian Code states that tierce opposition annuls the decision vis-à-vis all parties if the enforcement of the original decision would be irreconcilable with the enforcement of the new decision. 41 The Belgian and French Cours de cassation used to apply a similar concept of inseparability, namely the impossibility 'd'exécuter en même temps deux décisions'. 42 Such a situation may, for instance, occur when a tenant successfully contests a decision ordering the demolition of the building he occupies. 43

In other words, the criterion is identical to the criterion for consolidation of court and arbitral proceedings.

In recent cases, however, the French courts tend to apply a more lenient approach to inseparability based on the 'legal' impossibility of enforcing the original decision and the decision on tierce opposition simultaneously. Thus, in a case before the French Cour de cassation44, a court had annulled the life insurance contract of Ms X and ordered the insurance company to refund the sums paid by Ms X, which the insurance company immediately did. The beneficiary of the life insurance, however, successfully filed a tierce opposition against that judgment. The court ordered the insurance company to pay the sums due under the insurance to the beneficiary, since meanwhile Ms X had passed away. The insurance company objected to such an order, arguing that the judgments were inseparable given the fact that the first judgment found that the contract was null while the second judgment ordered the company to perform that same contract. The Court of Appeal of Nîmes, however, rejected the argument, stating that it was not impossible to execute the orders of both judgments simultaneously.

The Cour de cassation quashed this decision:

"Qu'en statuant ainsi, alors qu'il existait une impossibilité juridique d'exécution, tenant à la contrariété entre les deux décisions, l'une annulant les contrats et l'autre en ordonnant l'exécution, la cour d'appel a violé les textes susvisés".

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Likewise, after a leaseholder was informed that part of the lands under the lease could not be utilized as a vineyard under the appellation 'AoC graves', he claimed damages from the lessor for breach of contract and against the notary for professional misconduct. The court convicted both the lessor and the notary in solidum. Subsequently, the insurance company of the notary filed a tierce opposition against this judgment. The Court of Appeal of Bordeaux accepted the challenge in as far as the judgment found that the notary was liable and ordered the notary to pay. However, the court rejected the claims in as far as they concerned the liability of the lessor, arguing that there was no inseparability between a claim based on the contractual liability of the lessor and a claim based on the liability 'quasi-délictuelle' of the notary.

Again, the Cour de cassation quashed this decision, stating that the first judgment found that the lessor was liable since he had not delivered lands that were entirely fit as a vineyard under the appellation AoC graves, while the judgment on tierce opposition rejected the liability of the notary, finding that the lease in question did not require that the lands were entirely fit for that purpose. In the opinion of the Cour de cassation, such an inconsistency necessarily implied that the first judgment would be annulled in its entirety. 45

Boyer referred to this type of case to support his claim that a successful tierce opposition should have an absolute effect - i.e. an effect vis-à-vis all parties and third parties - whether or not the first judgment and the second judgment can be enforced simultaneously. 46 He illustrated his opinion by reference to a case in which the first judgment between Primus and Secundus found that Primus had a right of passage across the lands of Secundus. Subsequently, Tertius, the co-proprietor of those lands, successfully contested that decision by means of tierce opposition. Both judgments cannot be enforced simultaneously. Therefore, these decisions were inseparable, even under the strict (Belgian) definition of inseparability. However, in Boyer's opinion, the real inseparability in this case does not lie in the fact that Primus cannot be prevented and allowed to pass across the lands at the same time but in the fact that the right of passage would exist and not exist at the same time. If the arguments and/or evidence presented by the third party had convinced the court that the original decision was inaccurate or simply wrong, it would be unfair if this decision would continue to affect the parties and all other third parties. Therefore, Boyer suggests that tierce opposition should always restore the inaccuracy of the first decision erga omnes. 47

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Even though such a larger effect would avoid inconsistency to the greatest possible extent, it would also foster legal uncertainty and inefficiency. No decision would be final as long as there were third parties with a potential interest in contradicting any of the findings of that decision. Moreover, each time that one of the findings of a prior decision, whether factual or legal, would come under discussion in subsequent proceedings, all parties to the prior decision would have to be offered an opportunity to be heard, since they would be bound by the result of the re-litigation. Furthermore, not only would the finding itself have to be re-litigated, but the second decision-maker would also have to consider and decide on the implications of a contrary finding on the remainder of the original decision. As such, other findings and decisions, including the operative part of the decision, might also have to be reconsidered. Potentially, the practical consequences of the execution of the original decision would have to be undone.

In as far as the original decision and the decision involving the third party are simultaneously enforceable, these consequences of the generalized absolute effect of tierce opposition unnecessarily undermine the finality of the first decision. 48

Moreover, if we apply the broad definition of inseparable disputes to the consolidation of court and arbitral proceedings, the courts would have the power to consolidate all disputes involving overlapping issues of fact or law, thus setting the arbitration agreement aside. Nevertheless, such consolidation is still preferable to a situation in which the arbitration proceedings would first be completed, where after a third party would challenge the findings of the award in order to obtain a different decision in court proceedings on a common issue. Such a challenge would involve all parties to both the arbitration and the court proceedings, and the result of a successful challenge would be binding on all of them. Therefore, the result would be almost identical to a consolidation before the end of the arbitration, with the exception that the entire arbitral proceedings would have been completely useless.

ii. Jurisdiction

A broad definition of inseparability does not only undermine finality and the will of the parties to resort to arbitration; it would also give rise to multiple questions of jurisdiction and procedure. even in those countries where tierce opposition against court judgments exists, third-party recourse against arbitral awards is not generally known. The Belgian Code of Civil Procedure, for instance, does not provide for tierce opposition against arbitral awards at all.

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The French Code, by contrast, does provide for tierce opposition, but only against awards in national arbitration (Art. 1481 Code of Civil Procedure). Moreover, while tierce opposition against a judgment is brought before the court that rendered the judgment or the court that is next in the hierarchy, there may be much discussion on the question before whom the tierce opposition against an arbitration award should be brought. Neither tierce opposition before the arbitral tribunal nor before the courts may count on general approval.

Consolidation of court and arbitral proceedings raises similar questions of jurisdiction. Should the consolidated proceedings be brought before a tribunal or a court and, if the latter, which court? Therefore, we will now examine the jurisdictional and procedural debates surrounding tierce opposition against arbitral awards.

On the one hand, it is mostly impossible to require a third party to institute tierce opposition before the tribunal that has rendered the arbitration award. The third party may not agree to arbitration with the parties and vice versa. The only situation in which they would not have a legitimate reason to object to the jurisdiction of the arbitral tribunal would be where the parties and the third party all agreed to the same arbitration agreement that covers the issues in dispute. However, even such an agreement may not guarantee that the tierce opposition can be brought before the same arbitral tribunal that rendered the contested decision. It may be impossible to reconvene that tribunal, or the third party may invoke its right to appoint its 'own' arbitrator. Moreover, there is serious reason to doubt whether the original tribunal may still decide on an impartial and independent basis, since it has already formed and expressed its opinion on the issues. This raises questions that go to the very heart of the third party's rights of defence.

On the other hand, some scholars have also objected to the possibility of tierce opposition against an arbitration award before the courts, since relitigation of the issues falling under the parties' arbitration agreement in court would violate their expectations49 To evaluate this argument, one must again make a distinction on the basis of the risk of irreconcilable decisions, since this has an impact on the parties that take part in the tierce opposition and the effects of a successful tierce opposition.

Only if acceptance of the third party's objections would result in an order that cannot be simultaneously enforced with the order of the contested award should all parties to that decision necessarily take part in the re-litigation on [Page61:]tierce opposition before the court. Moreover, only in such cases of inseparability could the finality of the arbitral award between the parties be reversed by the decision on tierce opposition. This would imply that the arbitration agreement between the parties is no longer effective, which may indeed violate their expectations.

However, cases of inseparability form a particularly strong threat to the unity of the legal order. Therefore, it is no coincidence that the Belgian Cour de cassation generally does not allow the courts to assume jurisdiction over those parties that are bound by an arbitration agreement in connected multiparty disputes, whereas it does allow the courts to assume jurisdiction over all parties - including those that are bound by an arbitration agreement - in the case of inseparability (cf. supra). The only difference between the situation in which a party invokes the arbitration agreement before the court and the situation of tierce opposition against an award that may lead to an irreconcilable decision is that the arbitral award has already been rendered. The actual existence of the award may strengthen the expectation of the parties that their dispute is finally settled by arbitration. This, however, cannot prevent the need for one consistent decision that respects the rights of defence of all parties involved in the inseparable multi-party dispute, whether parties or third parties to the arbitration agreement. Such an effect can only be reached by allowing consolidation or intervention by third parties, or by allowing third parties to challenge the findings of the award in such a manner that the resulting decision will be binding on all parties, including all parties to the original award.

In these cases, where the third party does not only seek to rebut the findings of the award but also seeks to prevent or undo the enforcement of the award, the suggestion of certain authors to allow tierce opposition before the court that has ordered the enforcement of the award may seem attractive. 50 However, such a rule would imply that the third party cannot institute a tierce opposition as long as there have been no enforcement proceedings. This would be particularly problematic if the order of the award is performed voluntarily and this performance causes harm to the third party. Moreover, neither the enforcement proceedings nor the tierce opposition against a judgment in such proceedings are the appropriate forum to discuss the merits of the arbitration award, let alone to render a new decision on the contested findings of that award. This is witnessed by the fact that the court may only refuse enforcement of the award on very limited grounds, none of which relate to the merits of the decision, except in the extraordinary circumstance that the award would be contrary to public policy. However, the third party's objections in tierce opposition would most likely not be directed against the reasons why the court allowed the enforcement of the award but against the [Page62:] findings of the award itself. The evaluation of such arguments goes far beyond the tasks of the court of enforcement. Furthermore, a refusal to enforce, whether between the parties or as a result of tierce opposition, does not set the award aside, so that enforcement might still be sought in another country. The third party would thus be required to re-institute tierce opposition each time enforcement is being sought.

In cases where there is no risk of inseparability, it is not necessary to bring all parties to the arbitral award before the court since the decision on the tierce opposition would not affect the finality of the award between its parties. Therefore, the parties' expectations are fully respected. The tierce opposition merely decides a dispute between a party and a third party that are not connected through an arbitration agreement. Admittedly, certain issues in that dispute also fall under an arbitration agreement between the party and another party. However, the parties to the arbitration agreement do not expect those issues to be decided by means of arbitration in their relations with third parties. Neither could their arbitration agreement oblige third parties to resort to arbitration.

By contrast, if the party and the third party are also bound by an arbitration agreement that covers the contested findings, a tierce opposition before the courts would violate their expectations. Therefore, it should be possible for them not to resort to the courts and have the tierce opposition decided in accordance with their arbitration agreement. As long as there is no risk of irreconcilability between the first and second award, no other parties to the first award would have to intervene in this 'tierce opposition arbitration' or would be bound by the second award. Moreover, under these circumstances, there is no reason why a party and a third party would not be allowed to exclude the jurisdiction of the courts in favour of an arbitral tribunal, just as they can for any other dispute that is 'arbitrable'.

Those statutes that provide for tierce opposition against an arbitration award have generally attributed jurisdiction to the courts. Thus, Article 1481 of the French Code of Civil Procedure provides that tierce opposition may be instituted against the arbitral award before the court or tribunal that would have had jurisdiction in the absence of an arbitration agreement, subject to the rules on incidental tierce opposition (Article 588.1). 51 Similarly, since the 2006 reform of the articles on arbitration in the Italian Code of Civil Procedure, third parties can lodge an opposizione di terzo before the court of appeal of the district in which the arbitration has its seat. 52

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However, the French provisions cannot be used for international cases, since they do not provide for tierce opposition in such cases. Moreover, in international cases, a foreign court may be 'the court that would have had jurisdiction in the absence of an arbitration agreement'. Clearly, while the French legislator may recognize the jurisdiction of a foreign court, it cannot grant jurisdiction to a foreign court. For the same reason, the Italian provision cannot be used for awards that are rendered outside Italy. This, too, would grant jurisdiction to a non-Italian court of appeal.

It is very difficult to decide which court or arbitral tribunal should have jurisdiction to decide a tierce opposition against an international arbitration award.

In cases where there is no risk of inseparability, the obvious solution would be that the court or arbitral tribunal before which the dispute is already pending has jurisdiction to decide an incidental tierce opposition. A tierce opposition by means of a main claim could be brought before a court or arbitral tribunal that has jurisdiction to decide the matter in dispute between the third party and the party or parties against which the third party directs the tierce opposition. As to the courts, this would depend on their rules of private international law. As to an arbitral tribunal, it would depend on the existence and scope of the arbitration agreement.

In cases where there is a risk of inseparability, the tierce opposition must be brought before a court or tribunal that may assume jurisdiction over the third party and all parties to the arbitration award, in spite of the arbitration agreement between the parties to the award and/or any other arbitration agreement. If the tierce opposition is instituted as a main claim, the third party will have to determine which court or arbitral tribunal may actually assume jurisdiction over all these parties. If the tierce opposition is instituted incidentally, the court or arbitral tribunal before which the action is already pending must have authority to order the forced intervention of the 'missing' parties to the award. If that is not the case - which is very likely with regard to an arbitral tribunal - the court or tribunal would have to decline jurisdiction over all issues that may potentially lead to an irreconcilable order in favour of a court or tribunal that does have such authority. The initiative to initiate new proceedings before the competent court or tribunal is most likely to come from the third party, since it is the one that seeks to prevent or undo the enforcement of the award. Nevertheless, the initiative may also come from a counterparty or even one of the other parties to the award, depending on their relative interests.

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The same rules on jurisdiction should apply mutatis mutandis to the preaward/judgment consolidation of court and arbitral proceedings. If the disputes are not inseparable, the proceedings should not be consolidated, and each combination of parties should resort to the court or tribunal that has jurisdiction over their personal relations depending on the existing arbitration agreement(s) and/or the rules of private international law. If the disputes are inseparable, the consolidated proceedings may only be brought before the tribunal or court that may assume jurisdiction over all parties to the inseparable dispute, again depending on the existing arbitration agreement(s) and/or the rules of private international law.

4. Conclusion

Consolidation of court and arbitral proceedings by the court should be inadmissible, except in those rare situations where the disputes are 'inseparable'. The best approach is to interpret the criterion of 'inseparable disputes' in a strict manner, namely by limiting it to cases where the orders resulting from the disputes physically cannot be enforced simultaneously. In all other cases, the court should honour the arbitration agreement and refuse consolidation. If a rare situation of inseparable disputes occurs, it is preferable to consolidate the disputes as early as possible, even if this implies that all parties - even those that are bound by an arbitration agreement - will be brought before the court. The rules of private international law will determine which court may assume jurisdiction over such consolidated proceedings. The alternative course - in which some of the disputes are first decided in arbitration proceedings between some of the parties - only to be brought before the court in a subsequent tierce opposition - is the least attractive of all possible solutions.

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1
Henri David Thoreau, Civil Disobedience (1849).

2
Brian King, 'Consistency of awards in cases of parallel proceedings concerning related subject matters', in Emmanuel Gaillard (ed.), Towards a uniform international arbitration law? (IAI, 2005) p. 295.

3
J.C. McCoid, 'Inconsistent judgments', Wash. & Lee L. Rev. 48 (1991) p. 489.

4
For example, on the basis of Rules 42(a) and 81(a)(3) of the US Federal Rules of Civil Procedure; see Dominique Hascher, 'Consolidation of arbitration by American courts: fostering or hampering international commercial arbitration?', Journal of International Arbitration 1(2) (1984) p. 127.

5
Alberta Court of Queen's Bench, 2 February 2004, Western Oil Sonds Inc. v. Allianz Insurance Co. of Canada, 2004 ABQB 79.

6
Government of UK v. Boeing Co., 998 F. 2d 68 (2d Cir. 1993).

7
Article 1035.

8
Article 6B. For an application, see High Court of Hong Kong, 12 September 1986, Shui On Construction Co. Ltd. v. Moon Yik Co. Ltd. e.a., in Yearbook Commercial Arbitration, Vol. XIV (1989) pp. 215-223; Peter Schlosser, 'The competence of arbitrators and courts', Arbitration International 8(2) (1992) pp. 194-195.

9
Section 2. Under this Act, however, a party must first apply for such a measure to the arbitral tribunal(s). only if (one of) the tribunal(s) refuses consolidation, or the tribunals make inconsistent orders, should the party resort to the High Court. The court may then render or alter an order for coordination or consolidation.

10
Michael Mustill, 'Multipartite arbitrations: an agenda for law-makers', Arbitration International 7(4) (1991) p. 393.

11
In the Netherlands, consolidation is not considered to be in breach of that fundamental right, at least in as far as all parties have clearly opted for arbitration; see Pieter Sanders, Het Nederlandse arbitragerecht nationaal en internationaal, 4th edn. (Kluwer, 2002) p. 125; Henk Snijders, Nederlands Arbitragerecht, 3rd edn. (Kluwer, 2007) p. 208.

12
Mustill, supra n. 10, at p. 393; Sigvard jarvin, 'Canada's determined move towards international commercial arbitration', Journal of International Arbitration 3(3) (1986) p. 111; Adam Samuel, 'Arbitration in Western europe - A generation of reform', Arbitration International 7(4) (1991) p. 319; Hascher, supra n. 4, at p. 127, referring to a case in which an Italian court refused recognition of an American award: Corte di Appello de Firenze, 13 April 1978, in Yearbook of Commercial Arbitration, Vol. IV (1979) p. 294.

13
Mustill, supra n. 10, at p. 393; Samuel, supra n. 12, at p. 319; see also Hascher, supra n. 4,at p. 130.

14
As to Article V(1)(d), this is not entirely correct, since the reference to the law of the place where the arbitration took place is only by default of an agreement between the parties. Some commentators note that there rarely is such an agreement as to the appointment of the arbitrators or specific procedural rules. At best, the agreement refers the rules of an arbitral institution; see Michael Cohen, 'A missed opportunity to revise the Arbitration Act 1996', Arbitration International 23(3) (2007) p. 462.

15
Hascher, supra n. 4, at p. 131.

16
Unless one argues that a member state has violated its obligations under Article II of the New York Convention by enforcing a judgment in violation of an arbitration agreement.

17
Schlosser, supra n. 8, at p. 194-195.

18
In certain countries, there is a restriction on the possibilities for judges to sit as arbitrators. In Belgium, for instance, it is not officially forbidden for judges to do so, but they cannot accept remuneration, which mostly suffices as a disincentive.

19
High Court of Hong Kong, 12 September 1986, Shui on Construction Co. Ltd. v. Moon Yik Co. Ltd. e.a., in Yearbook Commercial Arbitration, Vol. XIV (1989) p. 221.

20
See, e.g., Hong Kong Arbitration ordinance, Article 6B.

21
Appendix C to 'Consolidation: The Second Report of the United Kingdom Departmental Advisory Committee on Arbitration Law', Arbitration International 7(4) (1991) p. 390; Mustill, supra n. 10, at p. 399; Anthony Diamond, 'Multi-party arbitrations. A plea for a pragmatic piecemeal solution', Arbitration International 7(4) (1991) pp. 405-406.

22
Hascher, supra n. 4, at p. 135.

23
Appendix C, supra n. 21, at p. 391; Mustill, supra n. 10, at p. 399.

24
Article 1046 of the Netherlands Arbitration Act.

25
Appendix C, supra n. 21, at p. 390.

26
Mustill, supra n. 10, at p. 397.

27
Or, in New Zealand and Hong Kong, if 'for some other reason it is desirable to make the order'.

28
Court of Appeal of Antwerp, 3 june 1997, unpublished.

29
Court of Appeal of Brussels, 24 September 1980, De Verzekering 1981, p. 285. The court based its decision on the case law of the Cour de cassation, which states that a dispute is inseparable from the moment that there is an inseparability of facts, so that it is necessary to evaluate the validity of different allegations to determine the liabilities and to examine the facts in which the parties played a role: Belgium, Cour de cassation, 9 May 1963, j.T. 1963, p. 529. The Commercial Court of Brussels (30 September 1986) remarks correctly that this point of view is no longer valid since the introduction of Article 31 of the Code of Civil Procedure. See also Court of First Instance of Nivelles, 17 june 1975, Res Jur Imm. 1976, p. 29: in a case between the owner as claimant and the architect and several (sub-)contractors as defendants.

30
Article of the 31 Belgian Code of Civil Procedure.

31
Court of Appeal of Liège, 25 june 1982, j.L. 1982, p. 341.

32
Labour Court of Appeal of Mons (Belgium), 15 November 1979, R.R.D. 1980, p. 141.

33
This is the situation in which the owner would get 'caught' between two inconsistent decisions.

34
Commercial Court of Hasselt, 4 December 2002, P.&B. 2004, p. 160.

35
Court of Appeal of Ghent, 28 October 1980, T.H.A. 1981-82, p. 169; Commercial Court of Brussels, 9 August 1973, j.T. 1974, p. 623; Commercial Court of Liège, 27 June 1985, eur. Vervoerr. 1985, p. 572; justice of the Peace of Berchem, 10 August 1976, R.W. 1976-77, p. 1835; contra Court of First Instance of Oudenaarde, 5 January 1984, R.W. 1985-85, p. 1098. The latter court decided that the connection between the claim of the victims and the claim for indemnity against the insurer warranted that these claims be decided by the court, notwithstanding the arbitration clause in the insurance contract. In the court's opinion, the decisions would be irreconcilable if the court were to find that there was liability and damage and the arbitrators were to decide that there was not.

36
Court of Appeal of Antwerp, 8 February 1993, unpublished.

37
Cour de cassation, 9 November 1995, Arr. Cass. 1995, p. 986; j.T. 1997, p. 97.

38
Cour de cassation, 16 october 2001, Revue de l'Arbitrage 2002, No. 4, pp. 919-920. See also French Cour de cassation, 6 February 2001, Peavy Company v. Organisme Général des Fourrages e.a., No. 98-20.776. In this case, the court quashed a decision of the court of appeal in which that court assumed jurisdiction over multiple defendants, some of which were bound by an arbitration clause.

39
Cohen correctly remarks how difficult it is to determine whether a multi-party dispute is inseparable, particularly at the preliminary stage when the court decides whether it has jurisdiction. Moreover, the notion of inseparability 's'entoure d'un halo d'imprécisions ou d'hésitations'.

40
By contrast, the Belgian Code requires in all cases that all parties to the original judgment are party to the tierce opposition; see Art. 1125 Code of Civil Procedure.

41
Under the Belgian Code, all parties to the decision must be parties to the tierce opposition, whether there is a risk of inseparability or not.

42
See, for instance, Cour de cassation, 27 june 1990; Cour de cassation, 21 June 1995; Cour de cassation, 21 November 1996.

43
Cf. Serge guinchard, Droit et pratique de la procedure civile, 5th edn. (Dalloz, 2006) p. 1158.

44
Cour de cassation, 30 April 2003, Compagnie les Assurances générales de France-Vie (AGF) v. Mme Rignon-Bret e.a., No. 00-22.712.

45
Cour de cassation, 20 March 2007, eARL Les Domaines de la Mette v. M. gilles Sautarel, No. 05-11.296.

46
Louis Boyer, 'Les effets des jugements à l'égard des tiers', R. Dr. Civ. (1951) pp. 194-195.

47
Guinchard, supra n. 43, at p. 1171.

48
This is probably how Mourre's opinion that tierce opposition should not be allowed has to be understood. The author states: 'ouverte pendant trente ans et impliquant la dévolution du litige à une juridiction étatique, la tierce opposition serait probablement contraire à la sécurité juridique et à l'exigence de confidentialité qui caractérise l'arbitrage international.' Alexis Mourre, 'L'intervention des tiers à l'arbitrage', Gazette du Palais 24 (2001) p. 21.

49
Charles jarrosson, 'L'autorité de chose jugée des sentences arbitrales', Procédures n° 8, August 2007, étude 17, p. 49; Emmanuel Gaillard and John Savage (eds.), Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer Law International, 1999) p. 918.

50
See Jacques van Compernolle, 'Le droit de recours du tiers contre une sentence arbitrale obtenue par fraude', Revue Critique de Jurisprudence Belge (1994) p. 657; Beatrix Vanlerberghe, 'De vordering tot vernietiging van een arbitrale uitspraak door een derde', Proces en Bewijs 6 (1993) p. 160. Vanlerberghe suggests that a third party should have the possibility to institute tierce opposition against the judgment that declares the award enforceable. In his opinion, such a tierce opposition would also allow the third party to resist the evidential value of the award.

51
Van Compernolle, supra n. 50, at pp. 660-662, suggests the same solution for Belgium, thus agreeing with Garsonnet and Cézar-Bru, who suggest this solution by analogy to the requête civile with regard to arbitration awards.

52
Previously, the section on international arbitration in the Code of Civil Procedure excluded the applicability of tierce opposition.