1. INTRODUCTION

Numerous interesting issues relating to multiparty and multicontract arbitrations arise within the ICC International Court of Arbitration (hereinafter, the 'Court') and its Secretariat (hereinafter, the 'Secretariat') in the process of constituting ICC arbitral tribunals and preparing files for

transfer to those arbitral tribunals.

In 'setting in motion'1 an arbitration, the Court may take prima facie decisions on whether a case can proceed, fix the place of arbitration, decide on the number of arbitrators, confirm or appoint arbitrators and/or consolidate arbitration proceedings. The Court's supervisory role in these initial stages of arbitrations goes further than most arbitral institutions. Using the expertise of its members and guided by the experience of the Secretariat, the Court is able to be pro-active in identifying and taking steps to eliminate procedural irregularities that could, at worst, frustrate the enforceability of arbitrations or, at least, cause inefficiency, delays and wasted costs.

The need for a somewhat pro-active approach has been amplified in recent years by the ever-increasing complexity of the transactions behind the disputes that are submitted to ICC arbitration. 2 The complexity of the underlying transactions is, in turn, reflected in the arbitrations administered by the Court. For instance, in each year from 2001-2009, at least 28.5% of ICC arbitrations involved more than two parties. In 2009, 233 out of the 817 cases filed involved more than two parties; six of them involved more than ten parties. Where an arbitration involves multiple parties or multiple contracts, [Page161:] it could be the case that (i) one of the respondents or the claimants has not signed the agreement on the basis of which the request for arbitration has been filed; (ii) the arbitration clauses contained in the different contracts may not be compatible; and/or (iii) the contracts may concern different, potentially unrelated economic transactions. Furthermore, a respondent could file crossclaims against another respondent or even request the joinder of an additional party, which could subsequently also file jurisdictional objections, cross-claims or make other requests.

When entering into the quagmire of procedural mechanisms such as consolidation, joinder of new parties and the compatibility of multicontract arbitrations, the Court exercises extreme caution. It is cautious primarily by virtue of the limitations on its role: it is an administrative body that does not settle disputes. 3 It is not the Court's role to decide disputed issues that can be submitted to fully-briefed arbitral tribunals.

That said, the Court must perform its functions to constitute arbitral tribunals in a manner that is effective in all respects. It is primarily in the performance of those functions that the Court has been faced with particular challenges in relation to the issues that are the subject of the present article. We have selected some of the most complex and captivating of the Court's recent decisions in relation to consolidation, multicontract arbitration, joinder and cross-claims.4 Each of those concepts is explained before the examples are provided. It should not be assumed, however, that the examples below are representative of the Court's daily work. The vast majority of ICC arbitrations proceed to arbitral tribunal constitution with limited input from the Court.

As will be seen below, in the more complex cases, the combined flexibility of the 1998 ICC Rules of Arbitration (hereinafter, the 'Rules') and the expertise of the Court and the Secretariat have produced solutions to unimaginable situations. Nonetheless, as the proportion of complex cases grows, it makes sense to reflect some of the Court's practices in its Rules. Until the last amendment of the Rules, which took place before 1998, multiparty arbitration was still relatively rare, and there thus appeared to be no particular need at the time to include special multiparty provisions. Since the ICC Commission on Arbitration (hereinafter, the 'Commission') is drawing towards the end of its Rules revision process, we also comment below on possible approaches towards consolidation, multicontract arbitration, joinder and cross-claims in the forthcoming ICC Rules of Arbitration (hereinafter, the 'New Rules').

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2. CONSOLIDATION

There are various interpretations of the meaning of the procedural mechanism 'consolidation', as it is known in international commercial arbitration. At its broadest, some practitioners include in this definition any arbitration where slightly unrelated claims are heard together. others include any situation where there are claims arising from more than one contract, for example where: (i) a single arbitration is commenced on the basis of more than one contract; or (ii) a party to an existing arbitration makes a claim against another party based on a different contract from the one that forms the jurisdictional foundation for the arbitration.

While those are possible definitions of consolidation, for ICC purposes consolidation in the strict sense covers only one procedural situation. In this situation, there are at least two separate ICC arbitrations pending (i.e. with separate ICC case numbers) and one or more parties to one of the arbitrations wants them to be consolidated into a single proceeding. Under the Rules, consolidation is dealt with in Article 4(6) as follows:

'When a party submits a Request in connection with a legal relationship in respect of which arbitration proceedings between the same parties are already pending under these Rules, the Court may, at the request of a party, decide to include the claims contained in the Request in the pending proceedings provided that the Terms of Reference have not been signed or approved by the Court. Once the Terms of Reference have been signed or approved by the Court, claims may only be included in the pending proceedings subject to the provisions of Article 19.' (emphasis added)

The Court's practice under this article has been to follow its language strictly. This means that in order to consolidate two or more pending ICC arbitrations:

• the legal relationships underlying the arbitrations must be connected;5

• the parties to each arbitration must be the same;

• a party to one of the arbitrations must request consolidation;6 and

• the terms of reference must not have been signed or approved.7

When the cases that are to be consolidated involve more than one contract, the Court will, in addition to the conditions set out in Article 4(6), apply the conditions derived from its practice with respect to multicontract arbitrations. Those conditions are described in section 3 below.

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In the three years from 1 January 2007 to 31 December 2009, the Court dealt with 24 contested requests for consolidation, eight of which were accepted and the remainder rejected. These figures exclude those cases where all parties agreed to consolidate. In those instances, a decision of the Court is unnecessary and the Secretariat proceeds to consolidate the matters administratively. By far the most common reason for the Court to reject an application for consolidation is non-satisfaction of the second element listed above, i.e. the parties are no identical. That requirement can sometimes appear restrictive in situations where two parties are intricately related but not identical, for example members of the same corporate group with exactly the same management and the same address.

Exceptionally, on one occasion the Court decided to consolidate two arbitrations involving parties that were not identical at the time the arbitrations were commenced. In that case, the claimant simultaneously submitted two requests for arbitration, the first against respondents 1, 2 and 3 and the second against respondents 1 and 2, and requested consolidation. Respondents 1 and 2 agreed to consolidation and informed the Secretariat that respondent 3 had merged into respondent 2 and would thus no longer participate in the proceedings. However, the claimant refused to exclude respondent 3 from the proceedings. In view of the agreement between the claimant and respondents 1 and 2 to consolidate the cases, and since respondent 3 did not object to consolidation, the Court decided to consolidate the two cases. The Court took the view that the merger of respondents 2 and 3 allowed the case to meet the 'same parties' requirement. Accordingly, this should not be seen as an exception to the strict application of the requirements of Article 4(6) of the Rules.

For instance, the Court was recently requested to consolidate three arbitrations where (i) all of the parties to the first two arbitrations were involved in the third arbitration; (ii) the claims brought under the first two cases were all technically raised in the third case; and (iii) the two contracts on the basis of which the different claims were raised formed part of a two-prong single economic transaction. However, given that the parties in the first two cases were not identical, a condition of Article 4(6) was not satisfied and consolidation, even if desirable, could not be effected without the agreement of all parties.

The Court has not been indifferent to the difficulties posed by the strict language of Article 4(6), particularly regarding inefficiency and potentially conflicting outcomes where consolidation is impossible. In the case described

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in the previous paragraph, the Court, before deciding that it could not consolidate the cases, encouraged the parties to agree on consolidation and drew their attention to the financial consequences of conducting the three arbitrations separately. On other occasions, the Court has been pro-active by appointing the same arbitral tribunal in the related cases. Where identical arbitral tribunals are possible, the arbitrations can be run in parallel, thus achieving most of the benefits of consolidation without actually consolidating the matters.

For example, in two arbitrations filed in 2008, the parties were very similar but not identical. Both arbitrations were brought by a single claimant against two respondents. While the respondents were identical in both cases, the claimants were slightly different. The claimants were members of the same group of companies with the same corporate address but had different names and different company identification numbers. The contracts underlying each request for arbitration were separate, but almost identical word for word except that each called for the delivery of a different commodity. The identical arbitration agreements in these contracts called for a three-member arbitral tribunal.

Since the two respondents were unable to jointly nominate a co-arbitrator, the entire arbitral tribunal was to be appointed by the Court under Article 10(2) of the Rules. 8

Using its discretion to select all of the arbitrators, the Court appointed the same arbitral tribunal for both matters. The claimant subsequently challenged the entire arbitral tribunal in the second arbitration on the basis that the arbitrators might form views about the claims in that case based on their detailed knowledge of the first case. prior to the appointment of the arbitrators, the claimant had also objected to consolidation. The Court rejected the challenge, noting, among other factors, that it had already considered the issue whether to appoint the same arbitral tribunal at the stage of constituting the arbitral tribunals in the first place.

The language of Article 4(6) of the Rules is being assessed by the Commission in the context of the Rules revision process. Some members of the Commission's Rules revision Task Force are content with the restrictive nature of the current language, considering that any change could create a risk of consolidation where the relationship between the parties and disputes is insufficiently proximate. Although it is too early to tell, the Commission may seek a formula that represents some kind of middle ground, providing the Court with some flexibility to allow more consolidations without reducing predictability in this regard.

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3. MULTICONTRACT ARBITRATIONS

As a matter of ICC internal practice, 'multicontract' arbitration means a single arbitration where claims have been brought on the basis of more than one contract. As noted above, some practitioners consider this a form of consolidation. It is true that there is a close conceptual link between a request to consolidate two pending arbitrations that have been filed on the basis of different contracts, on the one hand, and a single arbitration that has been filed on the basis of more than one contract, on the other. For ICC purposes, however, the two situations are considered procedurally distinct.

Multicontract arbitrations can raise the most complex of all the multiparty/multicontract issues facing the Court. The main reason for this is that, in order for an arbitration to proceed on the basis of multiple contracts, the Court must take what can be a delicate decision regarding the compatibility of the dispute resolution mechanisms in the different contracts and make a prima facie assumption about whether all the parties may have consented to the claims being heard together. put analogously to the concept of consolidation, that last element could be seen as examining whether there is prima facie implicit consent to effective consolidation.

The Rules are silent as to the setting in motion of multicontract arbitrations. As a matter of practice, when a party objects to multicontract claims proceeding in a single arbitration, the objection is dealt with under Article 6(2) of the Rules, 9 although some may consider that a multicontract scenario does not necessarily concern the 'existence, validity or scope of an arbitration agreement'. The evolution of the Court's practice in relation to multicontract arbitrations is a good example of how the Court's experience and expertise equips it to deal with the dynamic nature of international arbitration and the changing needs of its users.

From 1 January 2007 to 31 December 2009, the Court took 35 decisions under Article 6(2) of the Rules in cases involving multiple contracts. That figure includes contested cases only and does not include cases where all the parties to a multicontract arbitration agreed on the case going forward as such.

The Court has developed a relatively well-established practice for determining whether a multicontract arbitration can proceed on a prima facie basis. This means that, like all the Court's decisions under Article 6(2) of the Rules, it is for the arbitral tribunal to make a final decision on its jurisdiction. In relation to multicontract disputes, an arbitral tribunal may take into account the criteria set forth by the Court's practice, but is not necessarily required to do [Page166:] so. For instance, in a recent case filed under two contracts, the Court was prima facie satisfied that an arbitration agreement may exist between the parties and decided to set the case in motion. However, the arbitral tribunal subsequently decided in a partial award on jurisdiction that, although it had jurisdiction to hear all claims, the arbitrations arising from each contract would proceed separately given that the respondents were slightly different parties. Therefore, where the Court has decided that a multicontract arbitration can proceed, a party dissatisfied with that decision may have recourse to the arbitral tribunal, as for any Article 6(2) decision.

According to the Court's practice, a multicontract arbitration can proceed where the following three conditions are satisfied:

• all contracts are signed by all of the parties;

• the dispute resolution mechanisms in the different contracts are compatible; and

• all contracts are related to the same economic transaction.

It can be quickly observed here that the elements required for a multicontract arbitration to proceed are not dissimilar to the above-mentioned conditions for consolidation. Unlike consolidation, however, the Court's practice for multicontract arbitrations includes limited exceptions to the element concerning the identity of the parties.

With respect to this first element of the multicontract test set out above, the Court has, exceptionally, decided to allow a single arbitration on the basis of multiple contracts not signed by all of the parties in situations where: • the signatory parties belong to the same group of companies; or • at least one of the arbitration agreements has been signed by all of the parties.

The first of these exceptions, the 'group of companies' exception, is satisfied when it is clear that the signatory parties belong to the same group of companies. A classic situation usually covered by this exception would be a transaction where a framework contract is signed by a parent company and additional implementing contracts are signed by its affiliates. In a 2009 example, the request for arbitration had been filed on the basis of three contracts. There were slightly different parties to the different contracts: contract 1 was signed by the claimant and all three respondents; contract 2 was signed by the claimant and respondent 1 only; and contract 3 was signed by the claimant and respondents 2 and 3 only. The Court accordingly [Page167:]

considered the above-mentioned 'group of companies' exception. Here, the relationship between the respondents was such that the first respondent owned 100% of the second respondent and the second respondent owned 53% of the third. The Court found that this ownership relationship was insufficient to satisfy the 'group of companies' exception and that the case could therefore not proceed.

On this occasion, the Court took a pro-active approach rather than simply terminating the arbitration and fixing the costs. It decided to inform the claimant that the case could not proceed under all three contracts and that the claimant should indicate whether it wanted to proceed with the arbitration under one of the contracts. The claimant did elect to single out one of the contracts (the above-mentioned contract 1), and, after an ordinary Article 6(2) procedure, the arbitration continued between the claimant and all three respondents.

In another recent example of the application of the 'group of companies' exception to the first element of the multicontract test, one of the respondents had not signed all of the contracts. The Court nonetheless decided to allow the case to proceed, taking into account that this respondent had (i) allegedly induced the claimant to invest in the project that was the subject matter of the arbitration; (ii) participated in the negotiation and financing of the project; (iii) made critical decisions with regard to the project; and (iv) took the decision to dissolve and liquidate the joint venture that was created to carry out the project.

As noted above, the second exception to the first element of the multicontract test applies where at least one of the contracts containing an arbitration agreement has been signed by all of the parties. This has been applied by the Court in cases where the claims are so intimately connected and interdependent, because of the nature of the overall transaction, that an arbitral tribunal would have great difficulty handling them separately.

In a recent example of this exception, the claimant had commenced arbitration against three respondents on the basis of two contracts, the first one signed by all the parties and the second one signed only by the claimant and one of the respondents. Given that the outcome of the claims raised under the second contract would depend on the outcome of the claims raised under the first contract, the Court decided that the case could proceed.

As noted above, the second element of the multicontract test is that the arbitration agreements in all of the contracts must be compatible. Classic examples of incompatibility include cases where the arbitration agreements [Page168:] provide for different places of arbitration, different numbers of arbitrators or different methods for the constitution of the arbitral tribunal. Unless such an incompatibility is rectified by subsequent party agreement, it will ordinarily prevent the matter from going forward. There may also be incompatibilities in relation to procedural matters, such as the language of the arbitration or time limits, after the constitution of the arbitral tribunal. These incompatibilities might or might not make it impossible for the Court to allow the arbitration to proceed, depending on all the circumstances.

In a recent example, the Court decided that a single arbitration could not proceed on the basis of two arbitration agreements, one of which referred to Paris and the other to Geneva as the place of arbitration. Similarly, the Court has decided not to set in motion a case on the basis of two arbitration agreements where one provided for a three-member arbitral tribunal with the chairman to be nominated by the co-arbitrators and the other was silent as to the number of arbitrators. In that case, even if the Court had decided to appoint a three-member arbitral tribunal in order to harmonize the number of arbitrators, an incompatibility would have remained. Indeed, whereas under the first arbitration agreement the chairman was to be nominated jointly by the co-arbitrators, there was no such provision in the other arbitration agreement meaning that, pursuant to the Rules, the chairman would have been appointed by the Court. In an attempt to overcome this incompatibility, the claimant indicated that it would agree to any reasonable proposal from the respondent as to the method for the appointment of the chairman. However, the claimant's offer alone was insufficient, because it would require both parties' agreement to change the method for constituting the arbitral tribunal.

There are circumstances where the incompatibility between arbitration agreements becomes moot through a decision of the Court or otherwise. For instance, an arbitration was recently filed on the basis of two arbitration agreements, one of which was silent as to the number of arbitrators and the other provided for a three-member arbitral tribunal. The Court decided that the case could proceed and, in order to overcome the apparent incompatibility in the number of arbitrators, decided to submit the case to a three-member arbitral tribunal.

Similarly, the Court was recently faced with an arbitration in which the principal claims were based on an arbitration agreement that was silent as to the number of arbitrators. The parties subsequently agreed to submit the case to a three-member arbitral tribunal and to grant the co-arbitrators 15 days to jointly nominate the chairman. However, the respondent then filed counterclaims based on a different arbitration agreement, which provided [Page169:] that the co-arbitrators be granted 30 days to jointly nominate the chairman. As such, the parties' subsequent agreement had the effect of making the arbitration agreements incompatible, as there was a discrepancy regarding the time limit for the co-arbitrators to nominate the chairman. Despite this incompatibility, the co-arbitrators jointly nominated the chairman even before

they were confirmed, thus rendering the issue of incompatibility moot. Given that technically the co-arbitrators' nomination could not be made until after their confirmation by the Court or Secretary General, they confirmed their nomination immediately after they were confirmed.

As noted above, the third element of the multicontract test is that all contracts must be related to the same economic transaction. Very few cases have failed to meet this threshold. one example of such a failure was when the Court decided that a case could not proceed because the claimant based it claims on different contracts which, despite having similar objectives and terms (relating to hotel construction), clearly related to different projects (i.e. the hotels were to be constructed in different cities in North Africa). The contracts were therefore considered not to relate to the same economic transaction.

In borderline cases in relation to this third element, the Court generally allows the case to proceed as long as the arbitration agreements are compatible, so that the Court is able to constitute the arbitral tribunal. The issue of whether the parties intended to permit multicontract arbitration is thereby left to the arbitral tribunal. This occurred in a recent arbitration involving claims arising from two different contracts for the construction and installation of transmission lines that were part of the same project according to one of the parties.

Two final comments must be made with respect to multicontract arbitration under the Rules.

First, a mere reference to multiple contracts by a party, or even the filing of claims arising from different contracts, may not necessarily prompt the Court to conduct its multicontract test. It can happen that a party filing claims related to more than one contract invokes only the arbitration clause contained in one of them. The question in such a case may be whether the arbitration clause relied upon is broad enough to encapsulate the claims as raised, but this is normally an issue that would be decided by the arbitral tribunal. A similar situation may also arise when a party commences arbitration based on one contract but later raises claims arising out of another contract.

Second, the most common multicontract situation is when a claimant files principal claims on the basis of more than one contract. However, the Court [Page170:] has recently faced multicontract scenarios that were created either by the filing of counterclaims arising from a contract other than that upon which the claimant had based its claims or by virtue of a request for consolidation of two or more arbitrations involving different but related contracts. This situation could also potentially arise with respect to cross-claims (see section 6 below).

A 2010 example of this situation featured a case in which the multicontract scenario arose when the respondent filed counterclaims against the claimant. In that case, the claimant filed its principal claims against the respondents on the basis of a private concession agreement, pursuant to which the respondents granted the claimant the use of a building for the claimant to exploit as a hotel for 15 years. The respondents then filed counterclaims on the basis of a sale option agreement, pursuant to which the claimant was granted the option to purchase, by a certain date, the building that was the subject of the private concession agreement. The private concession agreement contained an arbitration clause designating Paris as the place of arbitration whereas the sale option agreement provided for Buenos Aires as the place of arbitration.

This kind of situation may require the Court, pursuant to Article 6(2) of the Rules and its multicontract test, to decide that the case should proceed only with respect to the claims arising from the private concession agreement. In this case, the decision was taken only upon both parties' express acknowledgement of the existence of two different and incompatible arbitration agreements. It was prima facie clear that one single arbitral tribunal would not have jurisdiction to entertain both principal claims and counterclaims.

Another example arose from a request for the consolidation of three separate arbitrations. leaving aside the test for consolidation under Article 4(6) of the Rules, the Court was not able to consolidate the three pending arbitrations because in the first case (filed before the other two) the parties had agreed that the chairman would be nominated by the co-arbitrators, whereas in the other two cases the chairman was to be appointed by the Court. Therefore, the parties' agreement in the first case rendered the arbitration agreement of the first case incompatible with the arbitration agreements in the other cases, thus preventing consolidation.

Multicontract scenarios are perhaps the most complex that the Commission will face when revising the Rules. on the one hand, concerns of transparency may call for addressing the issue squarely in the Rules, or at least drawing the users' attention to the issues that such circumstances can generate. On the [Page171:] other hand, it may be burdensome to attempt to provide Rules that cover all possible scenarios. It might be best to leave the issue of multicontract arbitration in the flexible hands of the Court, which is extraordinarily well equipped to deal with any yet unforeseen variations that may arise.

4. JOINDER AND THIRD-PARTY INTERVENTION

a. Joinder

Once again, there is some variation in the way that practitioners understand the procedural mechanism of 'joinder'. For ICC purposes, it means the situation where there is an arbitration underway and a party to that arbitration seeks to add a new party, that is to say, a party that was not named as such in the original request for arbitration. In practice, it is almost always the respondent side in an arbitration that seeks to name new parties, because the claimant side had the opportunity to do so in the request for arbitration. The Court has, however, occasionally heard applications from a claimant to name an additional party at some stage after filing its request for arbitration.

The current Rules are silent as to whether a respondent can name additional parties, whether as claimants, respondents or counter-claim respondents. This silence follows the traditional principle in international arbitration that it is exclusively for the claimant to identify the parties. 10

While it could be said that the Rules imply (in Article 4(3)(a)) that it is for the claimant alone to determine the parties, the Court's practice was clarified in the early years of the Rules so as to allow a respondent to apply to join a new party in certain limited circumstances. This development recognized that the traditional approach could create perceived procedural inequality by denying one side (i.e. the respondent side) the opportunity to name parties. The new practice also recognized that multiple arbitrations concerning closely related matters could lead to inefficiency, increased costs and potentially conflicting outcomes.

The practice that evolved does not put the claimant and the respondent entirely on an equal footing in relation to naming parties. When a claimant names one or more respondents in the request for arbitration, the request for arbitration will be notified to the respondent(s) immediately upon compliance with the filing requirements. on the other hand, when a respondent wishes to join an additional party not named in the request for arbitration, the Court will take a decision on whether to allow the joinder after consulting the other parties. This creates a hurdle for the respondent that does not exist for the claimant.

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An inaugural paper on the evolution in the Court's joinder practice was published in the spring 2003 edition of the ICC Court of Arbitration Bulletin.11 The authors noted that, in three then-recent cases, the Court had joined a new party upon the respondent side's request. Since then - perhaps to some extent encouraged by that paper - a number of joinder requests have been filed with the Court. For example, between 1 January 2007 and 31 December 2009, the Court considered 21 contested requests for joinder. It allowed the joinder in 13 of those cases and rejected the rest.

The above-cited statistic excludes cases where all parties agreed to the joinder. In those instances, a decision of the Court is unnecessary, and the Secretariat proceeds to effect the joinder. Such party agreements even occasionally occur where the party to be joined was not a party to the arbitration agreement, such that it would never have been joined via the court's joinder practice (which is discussed below). For example, in one case in 2009, the potential new party was one of the respondent's commercial partners and had nothing to do with the contract between the claimant and the respondent. It was the claimant's position in the arbitration that the respondent had breached the contract by failing to pay the claimant's invoices relating to deliveries made by (among others) the new party upon the respondent's instructions. Upon the respondent's joinder application, the parties agreed to the joinder on the condition that the new party:

'- joins the procedure as a party on the defendant's side;

- accepts this arbitration procedure as it is in its current status; and

- accepts that the [relevant arbitration agreement] is binding on it.'

It is more common for one side (normally the claimant) to resist the joinder of a new party rather than agreeing to it. According to the Court's joinder practice, the Court may nonetheless allow the joinder where these three conditions are met:

• the third party must have signed the relevant arbitration agreement;

• there must be claims raised against the new party; and

• no steps have been taken towards the constitution of the arbitral tribunal.

With respect to the first element, the signature requirement, the practice was in principle strict, i.e. the Court would not join a party unless it had actually signed the contract containing the relevant arbitration agreement. It was therefore sometimes felt that the signature requirement of the joinder test was inconsistent with the Court's practice under Article 6(2) of the Rules and gave rise to inequality. In applying Article 6(2), the Court does not require all [Page173:] parties to have signed the arbitration agreement, provided that the Court is prima facie satisfied that any non-signatory may be a party to the arbitration agreement. Classic non-signatory scenarios include, inter alia, parent companies, 12 guarantors13 and subrogates. 14 Furthermore, the Court takes a slightly different approach where the respondent is an individual rather than a company. 15 Thus, a claimant could simply name any respondent as a party (subject only to passing the Court's Article 6(2) test), whereas a respondent's request to join a new party would be subjected to the strict signature requirement.

This difference in standards is illustrated by a recent case initiated by two claimants against four respondents. The respondents requested the joinder of the parent company of one of the claimants on the ground that it had participated in the negotiation and performance of the contract at issue. The Court applied its joinder test and, given that the parent company was not a signatory to the contract, decided not to join the parent company. After notification of the Court's decision, the respondents filed a new arbitration against the two claimants and the parent company. The parent company raised jurisdictional objections alleging that it had not signed the contract containing the arbitration clause. The Court decided that the case would

proceed against the parent company under Article 6(2) of the Rules, taking into account prima facie evidence on the file that it had played an active role in the negotiation and performance of the contract.

The Court has adopted a more flexible case-by-case approach to joinder applications in recent years, albeit always proceeding with great caution. The last few years saw examples of cases where, in certain circumstances, the Court joined a party that had not signed the contract containing the arbitration clause. Some examples are set out below.

The Court allowed the joinder of a third party in a case where it had signed an MOU amending the contract containing the arbitration agreement but had not signed the contract itself. The new party was the claimant's parent company. In addition to the fact that it had signed the MOU, which indisputably related to the contract and incorporated provisions of it, the Court took into account many other factors, including that the parent had closely participated in the performance of the contract and had played a key role in settlement negotiations relating to the dispute.

In another case, the Court joined a third party that was, undisputedly, the legal successor of a party to the contract containing the arbitration clause. The successor had also signed a second, related contract that contained an identical arbitration clause.

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In another succession case, the arbitration was commenced by a claimant under a joint venture agreement that had been signed by the respondent and a third party. The respondent sought to join that third party. According to the claimant, the third party had assigned to the claimant all of its rights, interest and obligations under the joint venture agreement. However, the respondent contended that the third party remained separately bound by non-compete obligations in the joint venture agreement and that it therefore remained bound by its arbitration clause. The Court decided that the third party should be joined, leaving to the arbitral tribunal the decision as to whether it had jurisdiction over the new party and, if so, whether that party owed any substantive obligations to the respondent after the assignment.

Another exception to the signature requirement might occur when only the leader of a consortium signs the contract containing the relevant arbitration clause. For instance, in a case where two of three consortium members were claimants (one of them being the consortium leader), the respondent sought to join the third consortium member and raised claims against it. It was argued that the nature of the consortium relationship implied that the leader had signed the main contract on behalf of all consortium members and that its signature was sufficient to satisfy the Court's signature requirement. However persuasive those arguments might have been, the Court decided on that occasion not to join the third consortium member.

In another case, the Court decided to join a third party that, in spite of not having signed the agreement containing the arbitration clause, had (i) signed a letter terminating the agreement; and (ii) referred to itself in that termination letter as being a party to that agreement.

In early 2010, the Court accepted for the first time to join a non-signatory on the basis of a previous state court decision. The case concerned a contract entered into by two parties pursuant to which the claimant acquired from the respondent 100% of the capital stock in a third party. The claimant agreed to pay the respondent a certain amount over a three-year period and to cause the third party to pay the respondent the balance of the purchase price. before commencing the arbitration, the respondent had filed claims against the third party in a domestic court in Europe. In the course of that action, the third party in its submissions described itself as a party to the agreement on the basis that it had assumed specific obligations under that agreement. The third party relied on the arbitration clause contained in the agreement in support of its application to stay the domestic court proceeding. The domestic court granted the stay, finding that it did not have jurisdiction to hear the dispute due to the existence of the arbitration agreement. The domestic court reasoned that, while the third party was not a signatory to the

[Page175:] contract, it had assumed obligations under both that contract and other related agreements. An arbitration was subsequently initiated by the claimant against the respondent. When the respondent sought to join the third party, the claimant objected on the grounds that the third party had not signed the agreement and was not a party thereto. The Court decided to join the third party taking into account the domestic court's decision and the third party's position in that domestic court proceeding.

Another interesting issue arises when the request for joinder is based not only on the agreement on the basis of which the arbitration was initially commenced but also on a different agreement, such as the agreement underlying a counterclaim. The Court was recently faced with this very situation. When examining the joinder request, the Court examined whether the conditions for consolidating the claims arising out of the two agreements had been met. As these conditions had not been met, the Court decided not to join the new party.

The signature requirement may be stricter when it comes to cases involving or potentially involving states or state entities. For instance, in a recent case where the claimant filed its request for arbitration on the basis of a subcontract it had entered into with the respondents, the respondents sought to join a state, alleging that by virtue of the state's decision to terminate the main contract (the parties to which were the respondents and the state), the state was assigned the respondents' obligations under the sub-contract. The Court decided not to join the state as it had not signed the sub-contract.

With respect to the second element, that there are claims made against the new party, it must be noted that merely reserving the right to raise a claim later, or raising a conditional claim, is generally insufficient. The Court has indeed decided not to join a third party in a case where the respondent requesting the joinder merely reserved its right to file claims against the third party at a later stage, in the event that the arbitral tribunal decided against the respondent.

In certain circumstances, the Court has applied this condition more flexibly. Two situations are worth mentioning here.

First, a respondent seeking to join a new party normally files a claim against that party. Therefore, it is ordinarily assumed that the new party is not on the respondent's 'side' in the arbitration. However, in at least one case, the respondent sought to join a third party as an additional respondent, and this third party agreed to be joined as a respondent. Furthermore, the third party [Page176:] expressly agreed to respond to the claimant's claims. In the circumstances, the Court decided to allow the joinder of the new party.

In another case, after the request for arbitration had been filed, the parties agreed that one of the two claimants would no longer be a party to the arbitration. However, a few months later, the remaining claimant requested that the former claimant be reintroduced as a party. The respondent objected. In this case, there were no specific claims raised against the former claimant. However, as this former claimant would be joined on the claimant's side, the Court, rather than assessing whether there were specific claims against the party to be joined, considered whether this party had brought or intended to bring claims against the respondent. The Court decided to join the former claimant.

The third element for joinder, that no steps have been taken towards the constitution of the arbitral tribunal, recognizes the Dutco16 principle that all parties to an arbitration should have equal rights with respect to the constitution of the arbitral tribunal. Accordingly, in order for the Court to allow a new party to be joined, no arbitrator may have been confirmed or appointed by Court or Secretary General.

The only case in which the Court decided to join a third party after the arbitral tribunal had been constituted is the one discussed just above, where the new party was a former claimant. When taking the decision to join that party, the Court considered that (i) there was nothing in the file suggesting that the Court would have taken different decisions regarding the constitution of the arbitral tribunal had the third party been present at all times in the proceeding; and (ii) since the third party was initially a party and had commented on the number of arbitrators, all parties had been provided with an opportunity to participate in the constitution of the arbitral tribunal.

An additional note with respect to the constitution of the arbitral tribunal should be made. A positive joinder decision may well change the procedural composition of the case in such a way that there are consequences in terms of the method for constituting the arbitral tribunal. Article 10(1) of the Rules provides that where there are multiple parties, whether as claimants or as respondents, and the dispute is to be referred to three arbitrators, the multiple claimants, jointly, and the multiple respondents, jointly, shall nominate an arbitrator. If either side cannot jointly nominate an arbitrator, the Court is empowered to appoint the entire arbitral tribunal pursuant to Article 10(2) of the Rules. When a newly joined party is neither on the claimant's nor the respondent's side, it would not ordinarily be feasible to expect that party to nominate a co-arbitrator jointly with either of those sides.

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Therefore, the Court often has to apply Article 10(2) of the Rules to resolve this situation in cases where a party has been joined but does not fit into either side in the existing arbitration.

Finally, there is now fairly widespread acceptance among arbitration practitioners that all parties to an arbitration should receive equal rights to name parties. It is therefore expected that the revised version of the Rules will address the issue of joinder from that perspective and with a view to crystallizing the joinder practice developed by the Court over the last 10 years.

b. Third-party intervention

A concept somewhat related to joinder is where a non-party to the arbitration learns of the existence of the arbitration and seeks to be joined to it. This is quite rare and, like joinder, not provided for in the Rules.

On those occasions where a potential new party contacts the Secretariat with a request to be joined to an arbitration, the Secretariat informs the person that, due to the confidential nature of the Court and Secretariat's work, the Secretariat is not in a position even to acknowledge the existence of the arbitration, much less entertain a request for intervention.

In 2009, an individual turned up one Friday afternoon at ICC headquarters in Paris and asked to speak to the counsel in charge of one of the case management teams. She had flown from her country with a brief and demanded to be joined to an ICC arbitration underway between a major international petroleum company and the state-run oil company in her country. She claimed that, being a citizen of the state in question, she had an interest in the outcome of the case. After informal consultation between the Secretariat and the arbitral tribunal, the brief was not taken further.

In another case in 2009, the Secretariat received a letter from a non-party requesting to be joined to an existing case. Contrary to the previous situation, the non-party had signed one of the two contracts upon which the arbitration was based. Therefore, after internal discussion at the Secretariat, the Secretariat sent the non-party's letter to the parties in the arbitration and invited their comments. As it happened, one of the parties to the arbitration proposed to allow the joinder upon certain conditions. However, after further discussion, the parties did not reach an agreement on those conditions and the new party could not be joined.

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5. CROSS-CLAIMS

For ICC purposes, a cross-claim means a claim filed between parties on the same side of an arbitration, for example a claim made between claimants or between respondents. 17 The Rules are silent as to whether such claims are permitted and, if so, how they are dealt with. While cross-claims are relatively rare, there have been a number of cases where they were introduced.

Typical examples of cross-claims present a multicontract issue. This was the situation in an arbitration filed in 2008 featuring a consortium composed of Z and other companies. The consortium was retained by X to supply, install, start up and commission a blast furnace at X's industrial plant on a turnkey basis. A contract was accordingly entered into between Z as consortium leader and X. Thereafter, Z and y entered into a subcontract agreement for the performance and execution of the erection works related to the blast furnace. Then, X and Y, as contracting parties, and Z, as intervening party, entered into an additional agreement to govern their respective liabilities and rights with respect to the project. y initiated arbitration against x and Z for breaches of their contractual obligations under the subcontract agreement and the additional agreement. Both agreements contained arbitration clauses. X further filed counterclaims against y and cross-claims against Z.

In the past, cross-claims have been a decisive factor for the Court to appoint the whole arbitral tribunal pursuant to Article 10(2) of the Rules, which is what occurred in the case described above. The Court has considered cross-claims as clear evidence that the parties between which such claims exist have opposing interests and thus cannot be expected to jointly nominate an arbitrator as required by Article 10(1) of the Rules.

Another area of ICC arbitration in which cross-claims have an impact is the costs of the arbitration. In that regard, the Rules foresee only the notion of principal claims and counterclaims. As such, the advance on costs is fixed on the basis of the sum of those two types of claims. Furthermore, Article 30(2) of the Rules permits the Court to fix separate advances on costs for the principal claims and counterclaims without reference to possible separate advances on costs for cross-claims. In the past, issues concerning advances on costs in cases where cross-claims were filed have been dealt with by the Secretariat and the Court on a case-by-case basis.

In view of the increasing number of cases involving multiple parties and multiple contracts - and as a consequence the increasing number of potential cross-claims - the revised version of the Rules will probably provide for the [Page179:] notion of cross-claims and regulate the ways in which they can be filed and, in particular, their impact on the advance on costs.

6. CONCLUSION

The situations covered by the present article are an illustrative sample of the diversity of the Court's caseload. The examples demonstrate that the seemingly infinite number of combinations of factual scenarios that can arise out of that caseload can only be managed under modern yet very flexible arbitration Rules and reliable institutional support. Throughout their existence, the Rules have been able to meet the challenges of the ever-evolving circumstances and demands of their users. This is mainly due to their flexible and universal nature. It is also due in great part to the practices developed by the Court in order to adapt the Rules to the needs of particular circumstances.

In revising the Rules, the Commission is currently facing the challenge of preserving the flexible and universal nature of the Rules while adapting them to the most current needs. The increasing complexity of cases demonstrates that the Rules will probably need to deal head on with the onset of multiparty and multicontract arbitration.

Fortunately, in conducting its revision process, the Commission will have the advantage of drawing from the rich experience and practices developed by the Court as set out in this article.

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1
For ICC internal purposes, a case is 'set in motion' when the Secretariat and Court have dealt with all preliminary procedural issues and the case file is sent to the arbitral tribunal for resolution of the parties' dispute.

2
More than one third of the cases registered between 2005 and 2009 related to the construction, engineering, energy, financing and insurance industries, which normally involve highly sophisticated transactions dealing with highly technical and legal issues and involving multiple and diverse players. As to the types of contracts involved, the number of purchase and sale contracts increased from 120 in 2005 to 262 in 2009, representing 28.1% of the total number of cases registered in 2009. Construction and engineering contracts were involved in around 15% of the cases registered between 2005 and 2009. The third most common type of contracts were shareholders' and share purchase agreements, with a slight increase from 8.7% in 2005 to 9.9% in 2009.

3
Article 1(2) of the ICC Rules of Arbitration provides that '[t]he Court does not itself settle disputes. It has the function of ensuring the application of these Rules.'

4
As the Court takes its decisions on a case-by-case basis, these examples do not represent or constitute in any way precedents or have any binding character as to situations that may arise in the future with a similar fact pattern. Furthermore, the examples we provide are significantly simplified in the interests of confidentiality and concision, whereas the Court takes into account all relevant circumstances in making its decisions.

5
For the purposes of Article 4(6), the Court has interpreted the term 'same legal relationship' in a broad sense, associating it with the notion of 'same economic transaction'.

6
The Court does not consolidate arbitrations sua sponte. In practice, however, in cases where the Secretariat notices that two or more arbitrations could be consolidated, it will usuallydraw the parties' attention to this possibility. This is because consolidated arbitrations are generally more economical and efficient than separate arbitrations concerning related matters and because the latter may lead to the undesirable result of inconsistent outcomes.

7
See Article 18 of the Rules in relation to terms of reference.

8
In brief, Article 10(2) recognizes the right of multiple parties to jointly nominate a member of the arbitral tribunal if both sides can agree on such joint nomination. However, unless the parties have agreed on a different method, if either side is unable to agree on a nominee, the Court may decide to appoint all three arbitrators and select one to act as chairperson.

9
Article 6(2) of the Rules provides: 'If the respondent does not file an Answer, as provided by Article 5, or if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, the Court may decide, without prejudice to the admissibility or merits of the plea or pleas that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist. […]'

10
See H.A. Grigera-Naon, 'Conclusions', ICC Bulletin, Special Supplement (2003) pp. 83-84, discussing the rationale for the principle that it is for the claimant to designate the parties to an arbitration.

11
A.M. Whitesell and E. Silva-Romero, 'Multiparty and Multicontract Arbitration: recent ICC Experience', ICC Bulletin, Special Supplement (2003).

12
In such cases, the Court normally analyzes whether the parent company may have consented to be bound by the arbitration agreement signed by its subsidiary. For that purpose, it examines the parent company's involvement in the negotiation, performance and/or termination of the agreement containing the arbitration clause. One interesting example of this is a case in which the Court took into account the parent company's claim in a parallel ICSID arbitration relating to the sale contract.

13
The Court has decided to allow arbitrations to proceed under Article 6(2) of the Rules against non-signatory guarantors inter alia where: (i) the agreement containing the arbitration clause imposed obligations on the guarantor and those obligations were reiterated in the guarantee; (ii) there were elements in the file suggesting that the guarantor had participated in the negotiation and/or performance of the agreement containing the arbitration clause; (iii) the guarantee was incorporated into the agreement containing the arbitration clause; (iv) the guarantee, although constituting a separate document, specifically referred to the arbitration clause contained in the main agreement; or (v) there were supported allegations that, pursuant to the applicable law, a guarantor was bound by the arbitration clauses contained in the main agreement.

14
The Court has administered a number of cases involving insurance companies that, after having paid the beneficiary, subrogate in the insured's claim under the arbitration agreement. In these cases, the Court ordinarily considers the involvement of the insurance company in the negotiation and/or performance of the agreement as well as the actions taken by the insurer after the termination of the agreement. However, in most cases, the Court considers that the question of whether or not a subrogation is valid is a legal issue that ought to be left for the arbitral tribunal to decide.

15
The Court would normally not allow a case to proceed against an individual that contests jurisdiction unless there are elements in the file suggesting that he or she: (i) signed the contract containing the arbitration clause on his or her own behalf; (ii) assumed individual obligations under the contract; (iii) individually performed the contract; or (iv) exercised absolute control over the signatory entities. For instance, the Court has recently decided that a case could proceed against two individuals who: (i) played significant roles with respect to the transaction in question, because one of them negotiated the agreements on the basis of which the request for arbitration was filed and the other one made the final decision on the business activities of the company that signed the agreements; (ii) assumed basic obligations under one of the agreements; and (iii) fully owned and controlled the company that entered into the agreement.

16
Sociétés BKMI et Siemens c/ Société Dutco construction, Cour de Cassation (7 January 1992), rev. arb. (1992) p. 470.

17
Even if the notion of cross-claims exists in many legal traditions, a direct translation of the term 'cross-claim' as such is not found in other languages or legal systems.