ICC Commission Reports

Approved by the ICC's Commission on International Arbitration

The final report on multi-party arbitration was submitted to the ICC's Executive Board on June 14, 1994.

The Commission on International Arbitration is one of the ICC's Commissions charged with preparing policy on general and technical issues concerning world trade and investment. Its purpose is to develop arbitration as a means of settling international business disputes and to promote its use. Chaired by Professor Ottoarndt Glossner, it is composed of international specialists appointed by ICC National Committees and Councils throughout the world. The reports it issues from time to time do not entail or impose any obligation whatsoever on the ICC International Court of Arbitration, which is a completely independent body.

The Working Party on multi-party arbitration established by the ICC Commission was composed of the following members:

Chairman: Maître Jean-Louis Delvolvé (France) Members: Giorgio Bernini (Italy), Roger Budin (Switzerland), Jean-Paul Chapuis (Switzerland), William L. Craig (United States), Hans Herrlin (Sweden), Sigvard Jarvin (Sweden), D.S. Kumana (India), Klaus Lionnet (Germany), Humphrey LLoyd (United Kingdom), Werner Melis (Austria), Alastair R. Morley (United Kingdom), Gerald Pointon (United Kingdom), Jean Rouche (France), D. C. Singhania (India), Annie Toubiana (France).

Secretariat: Dominique Hascher, Jean-Jacques Arnaldez and Jean-François Bourque. Former Secretary of the Commission: Stephen R. Bond.

The opinions, recommendations and conclusions expressed in this report do not amend or supersede the ICC Rules of Arbitration, or bind the ICC International Court of Arbitration or its Secretariat.[Page27:]

Introduction

1. Multi-party arbitrations have the reputation of raising insoluble problems for people involved in international trade as well as for arbitration institutions, arbitrators and national courts called upon to deal with arbitral awards ensuing from them. However, although they have given rise to appreciable difficulties, at both a practical and a theoretical level, in the majority of known cases it has proved possible to deal with such arbitrations in a manner considered generally to be satisfactory.

2. The ICC, for its part, has for a number of years concerned itself with the study and practical treatment of the subject.

3. In 1982, it published a Guide to Multi-Party Arbitration (ICC publication No. 404) which presented the results of its preliminary studies. By means of this Guide, the ICC offered, for large-scale international projects involving several parties, 'to assist participants in projects of this kind in making arrangements at the outset of the project which will assure that all disputes arising among them will be resolved in a comprehensive proceeding before a single arbitral tribunal, regardless of the number of parties involved'.

4. However, because of the difficulties deriving from multi-party arbitrations, the ICC has been compelled to study this question further. This has been done particularly by the Commission on International Arbitration which set up a working party to monitor developments in this field. It has also instituted or taken part in group studies, some of which have been published. See, for example, the publication: Multi-Party Arbitration, Dossiers of the Institute of International Business Law and Practice, ICC Publishing, Publication No. 480/1, 1991, which groups together the analyses presented by specialists from many countries at the conference on multi-party arbitration organised by the ICC in Stockholm in 1989.

5. The difficulties of multi-party arbitrations all result from a single cause. Arbitration has a contractual basic; only the common will of the contracting parties can entitle a person to bring a proceeding before an arbitral tribunal against another person, and oblige that other person to appear before it. The greater the number of such persons, the greater the degree of care which should be taken to ensure that none of them is joined in the proceeding against its will.

6. Yet, on the one hand, a contract containing an arbitration clause very often brings more than two parties face to face; on the other hand, complex industrial operations may give rise to multiple contracts (which themselves may be concluded between more than two parties) linked one to the other in the context of such operations. In each type of case, the principle of multi-party arbitration is justified by the legal, procedural and financial interest of reducing as far as possible the number of arbitral fora to one. This cannot be achieved without clear awareness of the nature of the problem or without appropriate methodology.

I. Definition

7. Following a lengthy investigation of national and international legislation, case law and practices and an in-depth survey of the ICC International Court of Arbitration's practical experience, the working party set up by the ICC Commission on International Arbitration has reached the stage of being in a position to define the areas in which the problems specific to multi-party arbitration arise. This is an essential preliminary to any attempt at methodology. For the purpose of this report, multi-party arbitration is defined as an arbitration involving a confrontation between more than two parties with opposing interests.

8. It is an arbitration. Like any arbitration, it aims at submitting the resolution of questions in dispute to a private tribunal, by excluding the jurisdiction of the ordinary national courts. It presupposes an act of free will by the parties in dispute, and agreement between all such parties. Hence the same problems will be found in multi-party arbitration as in bilateral arbitration as regards expression of the will of the parties, with the usual complication in the case of international arbitration, namely, the need to determine the law applicable to the expression of that will: capacity and power to enter into an arbitration agreement, validity of the consent, arbitrability of the dispute, etc.

9. Such an arbitration involves more than two parties. This statement, although apparently a truism, requires clarification. [Page28:]

10. The word 'party' is ambiguous. One may be a party to a contract without being a party to the arbitration resulting from it. Conversely, one may find oneself involved in an arbitration at the request of a claimant who alleges he is entitled to join you in the proceeding although you are not a party to the contract. One may be a party to a contract and at the same time a third party as regards the arbitration agreement. One may also be a third party as regards both, and still be designated as a party to the arbitration: all that is necessary is that the claimant States in its request for arbitration that you are a party.

11. Accordingly, solely from the point of view of arbitral procedure-which is the aspect that concerns us here-it seems essential to draw a distinction between 'parties' to an arbitration and 'participants' in an arbitration. One may be either a party or a participant, depending on the degree of actual involvement, either in the basic relationship-in other words in the legal document or contract in which the arbitration agreement was included-or in the arbitration agreement itself.

12. To give one example by way of illustration, this involvement-real or presumed-from the outset by a claimant is often linked to the notion of representation.

13. This example is not merely a reference to the very simple case of agency. A person who has signed an arbitration agreement in the name and on behalf of another person usually has no reason to be a party in the arbitration proceeding. It goes without saying that in this type of case the agent is superseded by the principal who alone may be a party to the arbitration, whether as claimant or defendant. It may not, however, be clear whether the status of the person involved is that of agent or principal.

14. A request for arbitration presented by or against an agent is inadmissible. If presented by both him and his principal, or against him and his principal, it is admissible as regards the principal. Such a request does not give rise to multi-party arbitration. The question of whether the agent had the authority to bind the principal in the arbitration agreement does not even necessitate the presence of the agent during the arbitral proceeding (unless he is required to be present in his personal capacity). The principal alone has the task of proving-as claimant or defendant and depending on his interest-that the arbitration agreement is valid or void. The arbitration still does not become a multi-party arbitration; the agent remains a third party to the arbitration proceeding.

15. However, there are situations infinitely more complicated than that of agency, in which the question arises as to whether the parties joined in the proceeding are involved in a genuinely multi-party arbitration-with all the difficulties this presupposes. This question provokes hesitation and perplexity.

16. For example, it very frequently occurs that the parties to the arbitration proceeding cannot be those who concluded the arbitration agreement (bilateral at the outset), or in whose name the agreement was concluded. Indeed, in the course of business activities changes may well occur in which the rights and obligations of a contact are assigned or transferred to third parties. This may take the form either of general transfers (mergers, de-mergers, partial contributions of corporate assets; successions and donations between individuals) or of specific transfers (assignment of a contract, novation due to a change of creditor or debtor, assignment of a claim or a debt, subrogation, etc.).

17. Nowadays it is quite readily recognised that such transfers extend to arbitration agreements included in the contracts constituting the basis of the rights and obligations transferred. On the one hand, however, this view still gives rise to many doubts in substantive law. On the other hand, the reality or effectiveness of transfers may depend on the scope of the agreements which implement them and their interpretation.

18. An analysis of the original agreements and of any agreements by which they are novated, as well as an analysis of the substantive law applicable to such agreements and transfers, will provide the answer to the question of whether the assignor or the assignee, the company taken over or the company making the takeover, may be a party to the arbitral proceeding. Ordinarily, it can only be one or the other. Accordingly, one cannot speak of multi-party arbitration in such a case. Either the procedure will go ahead between the original holder of the rights and obligations in dispute and the opposing party; or the original holder will no longer be implicated, and its successor alone, whether as the general or specific [Page29:] successor in title, will be concerned together with the said opposing party and the original opponent.

19. At this stage, however, two observations need to be made.

20. On the one hand, the transfers in question may affect only part of the rights and obligations in dispute, such that the original holder retains part of them, or a transfer may have to be made to several persons who separately or jointly take over the rights of the original holder. The problem of incomplete assignment also comes to mind, in which the creditor is left with the alternatives of bringing proceedings against the assignor or the assignee or even both together. In such cases a true multi-party situation might then indeed arise.

21. On the other hand, questions, relating to the legality of the transfer or the possibility of its being invoked against the opponent in accordance with the applicable law, its scope and its effectiveness according to the interpretation of the agreements in question and its extent depending on what has been assigned and what has been retained, cannot be resolved until the arbitration has commenced. These are questions for the arbitrators and, after scrutiny, it may be that the arbitrators will find that the case before them is not a multi-party arbitration, but a classic bilateral situation. On the other hand, this may not be the case. In the meantime, it is essential to start proceedings in the circumstance of a multi-party situation which, for the sake of convenience, we suggest should be called a 'provisional multi-party situation'. This calls for solutions.

22. International business activities can also give rise to situations that are much less clear in which, for a given contractual relationship, several persons-either on the side of the party to whom the obligation is owed, or more often on the side of the party responsible for performing the obligation-are vested with a vital and active role in relation to the rights and duties, the subject of the contract, even though these persons were not parties (other than by indirect implication and sometimes without their knowledge) or even represented in the contract and in the arbitration agreement which it contains or which accompanies it.

23. An example of a case of this kind, which has become classic and clearly demonstrates the nature of the problem, is the case where two entities-for example, holding companies that are parents of their groups of subsidiaries, or, for example, states or entities under the aegis of the state-enter into a framework agreement. This framework agreement is subsequently implemented by the subsidiaries or national entities in question, which enter into individual agreements either with those contracting with their parent entities, or one with the other, and these agreements culminate in a juxtaposition of contracts. The framework agreement, and the agreements implementing it, or one or other of them, and one or more of the implementing agreements, will contain arbitration agreements. These arbitration agreements will be coherent with each other to a greater or lesser degree. Such agreements appear to form a whole in which each plays its part without the role of the implementing parties necessarily excluding the role of the parties to the basic contract. However, economic and organisational logic leads to the conclusion that in fact, there is only one fundamental relationship, with a single group of parties opposing another such group, which can be reduced to what is properly a bilateral arbitration despite a multi-party façade. The combination of the notions of a group of companies and a group of contracts has permitted such a reduction in certain cases.

24. However, as in the foregoing case, one is first of all faced with 'a provisional multi-party situation', and it is necessary to gauge the scale of the difficulties involved and to provide a minimum degree of organisation so that the arbitration proceeding can commence before an arbitral tribunal. It is that tribunal which will be responsible for deciding which party should take part in the proceeding or be excluded from it and, in relation to those parties which remain in the proceeding, which rights should be recognised or refused in relation to the merits of the case.

25. These multiple parties have conflicting interests.

26. In a bilateral arbitration, the dispute is between a claimant and a defendant. In the case of a counterclaim, the same parties assume the opposite roles. The legal relationship within the proceeding remains bipolar.

27. However, the claimant may comprise several persons, as may the defendant.

28. Thus, two joint creditors will together assert their rights against a common debtor, or a creditor [Page30:] will assert his against two joint and/or several debtors, or a company to which a controlling shareholding in another company is assigned will undertake an action relating to the guarantee of liabilities against the former shareholders, who may comprise a large number of persons, or such former shareholders may bring proceedings against the new owner for payment of a supplementary price.

29. It is doubtful whether an arbitration of this kind is necessarily a multi-party arbitration, for in reality it involves a dispute between two separate 'camps'-one claimant and one defendant. There are no conflicting interests within each 'camp' where the interests of the first camp are contrary to those of the other camp.

30. The situation will be different, however, if, for example, the parties within one camp fail to agree on the strategy or tactics to be adopted, the claims to be argued, the grounds of their claim, or even whether an arbitration is appropriate, or, as is often the case, the identity of the arbitrator that they are to nominate, whether as claimants or defendants. The parties within one and the same camp may even go so far as to take advantage of the fact that they are so numerous in order to obstruct the arbitration by pretending to disagree on the choice of the arbitrator whom they are asked to appoint. It is necessary to consider whether an arbitration commenced or proceeded with in such circumstances is a genuine multi-party arbitration. At the very least it poses from the outset the problem of a provisional multi-party situation.

31. More generally, a truly multi-party arbitration situation seems to occur where there is a multilateral contract creating separate rights and obligations between the contracting parties such that one party may assert certain rights against another, and different rights against a second or third, and the defendants may present a totally disunited front in response to the claimant's attack.

32., Accordingly, several bilateral conflicts may well arise in relation to that party, not to mention other indirect bilateral conflicts between its opponents which may also ensue from its action, all in relation to a single contract combined with an arbitration agreement signed by all parties or their representatives.

33. This time, there is no doubt that what is involved is 'a congenital and definitive multi-party situation' which-in the absence of settlements or withdrawals in the course of the proceeding-can only be brought to an end by an arbitral award. But if such a situation arises in limine litis, it will necessitate immediate treatment prior to the arbitration, as in a provisional multi-party situation.

34. To date, no general objective formula has been invented which would enable a definitive response, in the form of an appropriate multi-party arbitration clause, to be given to any situation of this kind.

35. Neither national laws-apart from a few rare exceptions (such as Dutch law and Californian law, which both provide a system of consolidation whereby a state court may require a third party to participate in an arbitration on the ground of a relationship between cases, although the infringement of the principle of mutual consent which this involves does not seem to have received a unanimous welcome)-nor international conventions have made provision for this. Apart from certain specific professional circles in which the uniformity of the environment and the similarity of proceedings enables institutions to require their members to submit related disputes to one and the same arbitral forum (see, for example, the G.A.F.T.A. Rules on grain and feed arbitrations), arbitration institutions have laid down few specific rules in this area. Extracts from their rules presented here in an appendix (Appendix 1) illustrate the caution of certain institutions, which endeavour to ensure they do not impose any rigid requirements on users, to whom they wish to allow the greatest freedom of decision (as in the case of the LCIA), or the particular feature of certain others by virtue of which multi-party arbitration is only available if the parties' choice of arbitrators is restricted by reference to a list drawn up by the institution itself (as in the case of the Zurich Chamber of Commerce).

36. Hence it is generally the parties who-in the light of what is necessary or appropriate-specify the rules which are to apply to multi-party arbitration, either through ad hoc arbitration clauses, or by reference to the rules of an institution, such as the ICC International Court of Arbitration, as adapted to their particular case. We set out in an appendix (Appendix 2) a non-exhaustive list of such clauses which were brought to the notice of the working party in the course [Page31:] of its enquiries and which the ICC considers itself to be in a position to reproduce.

37. The ICC Rules are simple enough to allow for it. They are also sufficiently simple for a multi-party arbitration to be covered by the Rules even if the parties have not drawn up special rules of their own. The ICC has considerable experience in this field over a lengthy period and the main justification of the present document is to show how multi-party arbitration is dealt with by the ICC. In accordance with the distinctions set out above, it should be understood that when the ICC first becomes involved, it is a matter of the provisional stage of a multi-party arbitration and the constitution of the arbitral tribunal appointed to deal with it.

38. Later we intend to demonstrate what can or should happen before this arbitral tribunal. Hence we will deal with the definitive treatment of multi-party arbitration by the arbitrators, including the ultimate outcome of multi-party arbitral awards before the state courts having a supervisory and enforcement role.

39. It is hoped that once users in the field of international commerce have read this study, which provides detailed information about the problems and the practical experience of the ICC Court of Arbitration, they will be in a better position to provide against the pitfalls of a multi-party situation.

40. We understand that the Court, for its part, remains closely involved with the question, and that it may make changes to the Rules, should it consider changes to be necessary.

II. Practice of the ICC International Court of Arbitration: provisional treatment of multi-party arbitration and constitution of the arbitral tribunal

41. For the ICC International Court of Arbitration, the entire basis of arbitration is, and fundamentally remains, contractual in nature. In the case of multi-party arbitration, as in the case of bilateral arbitration, it examines whether a prima facie arbitration agreement exists and who are the parties to that agreement. This is the under-pinning of its decisions.

42. Naturally it will consider any specific provisions that the parties have drawn up with a view to any multi-party situation arising (taking into account their counsel's recommendations and also any that the institution may wish to reiterate upon the conclusion of the present investigation).

43. However, it should be recalled that even if the parties have made no particular provision, the Rules, as they stand at present and the ICC standard clause ('All disputes arising in connection with the present contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules'), have already enabled hundreds of multi-party arbitrations to take place, particularly in cases where this clause was inserted in contracts signed by more than two parties. It will be seen, however (infra, Nos. 51 and foll.), that a mere reference of this kind has its limitations, especially if the various defendant parties to the arbitration proceeding invoke conflicting interests.

44. Whatever the case, the International Court's role is always inspired by the same approach to the problem. Moreover, it is a precondition of its own jurisdiction, since the arbitration agreement not only records the will of the parties to submit to arbitration, but also entrusts the ICC with the task of organising the arbitration.

A. Verification of the conditions under which the arbitral proceeding is initiated

45. The claimant's procedural position generally entails a certain number of advantages, including that of determining who are to be his adversaries in the case. He may, at his discretion, decide to join one or more of the other contracting parties who are bound or supposedly bound by the same arbitration clause. Nonetheless, the conditions applying to the introduction of a Request are not totally exempt from supervision by the International Court of Arbitration.

46. For example, if there are several contracts each containing an arbitration clause, the Court may refuse to set in motion an arbitration proceeding based on a single Request. If the defendants do not agree to be grouped together in a single proceeding, several arbitrations may have to be organised on the basis of each of the [Page32:] arbitration clauses. Indeed, it should be remembered that such clauses, when applied individually, give defendants the possibility of nominating an arbitrator. Defendants should not be deprived of this right by the circumvention of the clause to which they are a party, at the sole discretion of the claimant. This applies even if the arbitration clauses are worded in identical terms.

47. In circumstances where there is a single clause applying to more than two parties, the relevant question is whether the Court may verify whether it is appropriate for the claimant to introduce separate claims against each of the defendants in the same proceeding. The Court's answer may depend on how the word 'party' is to be interpreted in the given case and according to the distinctions set out above. The claimant alone remains responsible for the manner in which he wishes to institute the proceeding. If its claims are grounded on an ICC arbitration clause binding all the parties to the case, the Court would have to set the arbitration in motion. However, it must be remembered that the claimant is clearly required to prove that there are legitimate and reasonable grounds for proceeding against the defendants jointly, failing which it runs the risk of having the validity of the award called into question on the ground that a co-defendant was wrongly obliged to take part in the procedure. In any event, it is the claimant who is responsible for ensuring that the proper procedure is followed; the Court, whose duties comprise the organisation of the arbitration, endeavours to ensure that each stage is conducted in compliance with its Rules.

48. Further, assuming once again that there is a single arbitration clause, it may also be the case that one or more of the defendants intends to introduce a claim against one or more co-defendants. This comes down to requiring that several proceedings be organised within a single arbitration. In general, such an arrangement is not possible in the absence of an arbitration agreement drafted specifically for that situation. It follows that if the parties have made no provision to that effect in their arbitration agreement, or have failed to agree subsequently on an appropriate mechanism, a defendant wishing to bring a claim against any other co-defendant would have the possibility to do so by introducing a separate arbitration.

49. A question may also arise as to whether the defendant or defendants may seek to join to the arbitration proceedings other parties to the arbitration clause who have not been named in the request for arbitration. This should be possible if the arbitration clause provides a mechanism for such joinder or if all of the parties otherwise agree. The defendant or defendant parties concerned still could submit a new request for arbitration in relation to such additional parties, provided, of course, that they are linked to them by an arbitration agreement (see below: parties to the arbitration and third parties).

B. Supervision of the constitution of the arbitral tribunal

50. The International Court of Arbitration decides on the number of arbitrators and on the appointment of the members of the arbitral tribunal after the Secretariat has invited the parties to comment on the same through the Counsel in charge of the case. Thus, the parties are invited to take part in the constitution of the arbitral tribunal and, if necessary, are called upon to exercise their right to do so. Several situations should be distinguished:

51. 1. The arbitration agreement makes no reference to the number of arbitrators and there is no agreement between the parties on this matter. The Court, in compliance with the provisions of Article 2(5) of the Rules, may envisage submitting the dispute to a sole arbitrator.

This may, of course, appear inappropriate for important or complex disputes. If, however, the parties have adopted the ICC standard clause ('... by one or more arbitrators appointed in accordance with the said Rules'), such a decision must be held to accord with the parties' will. In such a situation, the onus is on the parties to consult with each other and liaise with the Court Secretariat, so as to constitute a three-member arbitral tribunal, with all three members appointed by the Court if necessary.

52. 2. A sole arbitrator is provided for either by the arbitration agreement, by subsequent agreement between the parties or by decision of the Court. If the parties fail to agree upon a joint nomination, the Court will appoint the arbitrator as specified in Article 2(3). [Page33:]

53. 3. Three arbitrators are to be appointed as this may be expressly agreed to by the parties, either in the arbitration clause or subsequently, or decided by the ICC Court. In such a case, the claimants on the one hand, and the defendants on the other, will normally be invited by the Secretariat to each nominate a co-arbitrator. It will be noted that as the claimants have a joint strategy and are generally represented by the same lawyer, joint selection will seldom give rise to any difficulty so far as they are concerned. However, multiple defendants (and claimants) may not agree to make a joint nomination of a co-arbitrator: they may make no proposal whatsoever, only some of them may make a proposal, or possibly several separate proposals may be made.

a) If none of the defendants nominates a co-arbitrator, the Court will normally make an appointment on their behalf in accordance with Article 2(4) of the Rules. If such defendants are of the same nationality, the Court would apply to the National Committee of the said parties' country. If that country has no National Committee, the Court-as specified in Article 2(6)-will nevertheless endeavour to appoint an arbitrator of the same nationality as the defendants. If this turns out to be impossible, it may then appoint an arbitrator from a nearby country which shares the same legal tradition. If the defendants are of different nationalities, the Court may appoint an arbitrator whose nationality is different from that of any of the parties having failed to make a nomination.

b) If some of the defendants nominate jointly a co-arbitrator but one or more defendants fail to participate in such nomination without, however, objecting to it, the Court can normally be expected to take this proposal into consideration and may appoint the arbitrator so nominated. In any event, it must not be forgotten that the silence of a party who has been duly invited to take part in the formation of an arbitral tribunal cannot constitute a means of paralysing the procedure. A party which remains silent for longer than a reasonable period of time, taking into account the circumstances of the case (Articles 3(1) and 4(1)), may be deemed to have waived the opportunity afforded to it by the Rules to participate in the constitution of the arbitral tribunal. At a formal level, the Court's decision in such circumstances usually constitutes an appointment rather than confirmation of a joint nomination if the proposal has not been made by all the defendants.

c) If only some of the defendants nominate a co-arbitrator, and this is objected to by others, or if all defendants have nominated a co-arbitrator under protest, the Court may appoint the co-arbitrator instead, taking into consideration all the circumstances of the case and the law of the place of arbitration. Thus, it interprets their disagreement as a failure to make a choice or a waiver of the right to choose afforded them by Article 2(4) of the Rules. The presumed defendants are to share an identical procedural position vis-à-vis the claimant, allowing the Court to consider them prima facie as together forming a single defendant. Sometimes it may turn out that this is not really the case. If it wishes to avoid a future challenge of the validity of the award on the ground that the arbitral tribunal was constituted irregularly, the claimant may commence separate arbitration proceedings, or re-establish the balance between the two camps involved by requesting the Court to appoint a co-arbitrator on behalf of the claimant as well.

54. It must be remembered that because of the relationship of trust which has to exist between the arbitral tribunal and the parties, each of the parties should be offered as far as possible the opportunity to nominate a co-arbitrator, or, together, the sole arbitrator. Direct appointment by the Court is therefore only a secondary solution, having a subsidiary position as regards to the normal arbitration procedure.

55. Finally, it should be noted that where an arbitrator has been appointed by the Court on behalf of all of the defendants because of their failure to do so, there is generally no need for the Court to replace the said arbitrator should the Arbitral Tribunal decide that it does not have jurisdiction over one or more of the said defendants. [Page34:]

C. Parties to the arbitration and third parties

56. It must be pointed out that, prima facie, the parties to the proceeding are those who took the initiative to commence an arbitral proceeding or in relation to whom the original Request was submitted. Thus the parties to the arbitration, and also the third parties, are determined from the moment the proceeding is commenced.

57. The claimant, as the person who initiated the proceeding, may extend its Request to other defendants not initially identified, before the Court decides upon setting the arbitration proceeding into motion.

58. In procedural matters, a distinction can be drawn between voluntary and compulsory intervention. Voluntary intervention enables a third party to take part in a proceeding between the original opposing parties. Compulsory intervention is initiated by one of the original opposing parties to oblige a third party to take part in a proceeding. Because of the contractual and confidential nature of arbitration, as a general rule, neither voluntary nor compulsory intervention may be envisaged unless provided for by a specific clause.

59. Once the Court has taken its initial decisions to set the proceeding in motion, voluntary intervention or joinder of a third party by a claimant requires the agreement of all of the parties, and a third party which has been joined must, in particular, record his agreement to the constitution of the arbitral tribunal; a third party intervening voluntarily is deemed to accept it by the very fact of its intervention.

60. The joinder of a third party by a defendant may obviously take place if foreseen in the arbitration agreement. It also remains possible if none of the claimants and defendants object and the third party agrees, particularly when an arbitral tribunal has already been constituted. Apart from such cases, the defendant itself may introduce a separate arbitral proceeding.

D. Extent of the dispute

61. Generally, it is the subject matter of the request for arbitration which defines the scope of the dispute brought before the arbitral tribunal. Defence submissions, however, also contribute to determining its scope, and a defendant may, for example, enter a counterclaim against the claimant.

62. However, if there are several defendants, is it possible to deal in one and the same arbitral proceeding with claims made by one of the defendants against another defendant? Unless the parties have provided for this expressly, will the reply be in the negative given the impossibility of organising a single proceeding grouping several cases together? In such circumstances would a new proceeding have to be commenced, which might possibly be consolidated with the original proceeding on the basis of a link with that proceeding?

63. Where there are several defendants, the consolidation of several cases into a single arbitration is possible provided the parties made provision for it in the arbitration agreement or agreed to it subsequently. Thus, in one case, the Court decided to set in motion a proceeding involving a developer, a contractor and one or more subcontractors, in circumstances where each of the parties had claims against the others.

64. Conversely, in a proceeding commenced on the basis of the standard ICC arbitration clause contained in a consortium agreement, as no express provision had been made for consolidation and in view of an objection raised by one of the defendants, the Court invited the defendant who had introduced a separate claim against a fellow defendant, to start a separate arbitration proceeding. The Court in fact considered that as the ICC Rules did not envisage cross-claims between co-defendants, such claims could only be allowed with the agreement of the parties.

65. This confirms that for the Court, the setting in motion of a multi-party arbitration proceeding requires that parties' wishes be unambiguous in this regard. The Rules may always be adapted to suit the parties' wishes provided that such adaptation does not contravene essential provisions contained in the Rules (e.g. the requirement that Terms of Reference be drawn up, and scrutiny of draft awards by the Court). In the absence of agreement, once an objection is raised, the Court is bound to apply the Rules closely. In these circumstances, where there are [Page35:] several related proceedings, the Court may go no further than ensuring the harmonisation of the various proceedings.

E. Joinder of claims-consolidation of proceedings

66. A desire to save time and money and the search for an overall settlement during the course of an arbitration may incite parties to request the joinder of their claims or the consolidation of different proceedings.

67. Article 13 of the Internal Rules is worded as follows:

'Joinder of claims in arbitration proceedings

When a party presents a Request for Arbitration in connection with a legal relationship already submitted to arbitration proceedings by the same parties and pending before the Court of Arbitration, the Court may decide to include that claim in the existing proceedings, subject to the provisions of Article 16 of the ICC Rules of Arbitration.'

68. According to the said article, the joinder of claims presupposes firstly that both the parties and the legal relationship are identical. If either of these factors is missing, joinder may not take place and, unless the parties otherwise agree, the Court is obliged to reject any such request.

69. There is, in addition to this substantive condition, a procedural condition, namely, that the case already pending has not gone beyond the Terms of Reference stage. After this stage, joinder will generally be subject to an agreement between the parties to sign an addendum to the Terms of Reference in accordance with the conditions set out in Article 16 of the Rules. Indeed, it will be recalled that in ICC arbitration, a new claim which does not fall within the limits determined by the Terms of Reference has to be the subject of an addendum signed by the parties and the arbitrators.

70. Provided the conditions of Article 13 of the Internal Rules are fulfilled, then in theory the consent of all the parties is not necessary. In practice, however, the Court does not take the initiative of joining several claims unless it is asked to do so by a party. In this connection, it should be noted that such consent is generally always given.

71. It should also be noted that, even if the conditions of Article 13 of the Internal Rules are satisfied, joinder at the initiative of the Court becomes impossible if the parties have constituted arbitral tribunals composed of different arbitrators for the two cases. Thus, joinder of claims usually occurs before the arbitral tribunal for the second claim has been constituted.

72. Joinder of cases is available in ICC arbitration in circumstances other than those envisaged in Article 13 of the Internal Rules. It may be that parties and legal relationships differ between the relevant proceeding, but provided all of the parties agree, the Court may join or consolidate the cases. Frequently, such decisions are taken even when the parties are not the same, or the defendants or claimants are not identical, or when the contracts involved are different. Failure to satisfy the conditions of Article 13 is not therefore an obstacle to the consolidation of arbitrations provided all of the parties are in agreement. In this context it is not essential to have identical arbitration clauses; indeed, one of the arbitration clauses may even foresee a non-ICC arbitration.

73. In the event that the parties agree to the joinder of separate proceedings, the parties may also have to agree at the same time upon the place of arbitration and upon the method of constituting the arbitral tribunal insofar as differences between the various arbitration clauses concerned call for modification of these clauses.

F. Payment of the advance on arbitration costs

74. The Rules specify that the advance on arbitration costs has to be paid in equal shares by the claimant or claimants and the defendant or defendants. If one of the parties defaults, then the other party is obliged to pay the advance in its stead. This principle may be modified by the parties in the context of a multi-party proceeding. The apportionment of the advance equally between all of the parties would appear to be the most appropriate solution. However, a larger fraction of the advance on arbitration costs may be apportioned to a particular party or particular claimant or defendant who had an interest in taking the initiative to have the arbitrations consolidated, or to obtain the joinder of claims or even third party intervention. The arbitration clause should provide for adjustments with regard to Article 9(2) of the Rules in relation to this point. [Page36:]

75. Default by certain defendants (or claimants) may impede matters in such a way as to lead the Court to determine a number of separate advances in respect of each of the categories of claims (i.e. principal claims or counterclaims) the payment of which falls to the particular defendant or claimant who introduced them. Thus, the conditions would be set for the application of Article 9(4) of the Rules, and also for the possible implementation of Article 15 of the Internal Rules.

G. Harmonisation of proceedings

76. There are measures which, although they do not eliminate the disadvantages inherent in having several related proceedings, nonetheless may enable them to be harmonised to a certain extent. Thus, where the same arbitrators are appointed to settle related disputes, for example, the risk of incompatible awards resulting as to the merits may be avoided (insofar as the rules applying to the merits are the same) and the procedural costs will be lower.

77. If the parties take part in the nomination of the arbitrators as Article 2(4) of the Rules invites them to do, they may prefer to nominate the same co-arbitrator in each of the related disputes. On a number of occasions, the Court has confirmed the nomination of a co-arbitrator who, at the same time, was a member of another tribunal, organised under ICC auspices or otherwise.

78. As regards sole arbitrators or chairmen of arbitral tribunals dealing with a series of related disputes, the Court, with a view to acting effectively and administering the situation properly, may be led to appoint the same person, particularly if the parties do not object to this. In ICC practice, the constitution of identical arbitral tribunals may be a normal step preceding the joinder of arbitrations at the request of the parties. It will be recalled that the Court appoints the chairman of the tribunal unless the parties decide to the contrary by taking this initiative themselves or by leaving this task to the co-arbitrators already nominated. However, the appointment of the same arbitrators in parallel proceedings must not result in inequality as between the parties. Undoubtedly, this risk may arise in situations where the various parallel arbitral tribunals have the same chairman and where the same co-arbitrator has been nominated several times. Thus, prior to the appointment of the chairman, the Court will usually invite comments from the parties.

79. It will be recalled that an ICC arbitration is an arbitration administered and supervised by the Court, as from introduction of the request until approval of the award.

80. It should also be remembered that the dialogue and relationship of confidence which must be created from the outset as between the arbitrators and the Secretariat has the advantage of facilitating coordination of the proceedings. At the level of Secretariat organisation, related cases are generally entrusted to the same Counsel: thus, all parties concerned have a single contact at the ICC.

III. Definitive treatment of multi-party arbitration

81. Once the arbitral tribunal has been constituted and the file has been referred to it after payment of the advance on costs in accordance with the Rules, the arbitral tribunal is vested with power to decide upon all of the questions summarised in the Terms of Reference.

82. As far as multi-party arbitrations are concerned, these questions may fall into a number of categories.

83. Firstly, one of the various parties may dispute the validity of the constitution of the arbitral tribunal. It may also challenge the arbitral tribunal's jurisdiction to make a ruling on such a matter.

84. Next, developments in the dispute during the course of the arbitration proceeding may lead to a multi-party situation arising which did not exist at the outset.

85. In addition to such questions concerning the scope of the arbitral tribunal's jurisdiction which arise once the arbitral tribunal is seized of a case, there are further purely procedural questions relating to the organisation of the arbitration before the arbitrators, taking into account the need for equality of treatment of the parties and for respect of the rights of the defence.

86. Given that during the course of an ICC arbitration care must always be taken to ensure that awards will be as effective as possible as regards enforcement, it will be clear that good coordination between the arbitral tribunal and the [Page37:] International Court of Arbitration in the exercise of their respective tasks helps to achieve this objective. Thus, arbitral awards in multi-party cases can generally be confirmed without difficulty by national courts called upon to verify their validity or to render them enforceable, in the context of international conventions in force.

A. The arbitral tribunal's decision with regard to its jurisdiction

87. The International Court of Arbitration will only have provided for the constitution of a single arbitral tribunal as a result of a prima facie examination of the multi-party situation with which it was confronted. In the event of a challenge, it is the tribunal itself which decides whether it was validly constituted and whether it has jurisdiction as regards all of the parties to the proceeding in question.

88. There are various grounds on which queries may be raised as to whether the arbitral tribunal has been constituted validly. One or other claimant or defendant may maintain, for example, that there were not sufficient grounds for the Court to decide to entrust the case to a sole arbitrator. Or again, one of the co-defendants may allege that its position as defendant was too dissimilar to that of one or more other co-defendant to justify its case being submitted to a single tribunal and the rejection of its proposal for a person of its choice to be appointed as an arbitrator. This matter is illustrated by the decisions in Westland (Arab Republic of Egypt vs Westland Helicopters Ltd, Cour de Justice of Geneva, 26 November 1982; Swiss Federal Tribunal, 16 May 1993) and Dutco (Siemens AG and BKMI Industriaen Lagen GmbH vs. Auto Construction C°, French Cour de Cassation, 1re Ch. civile, 7 January 1992). In such cases a challenge will be elaborated by reference to the arbitration agreement which will be alleged to have been infringed or, more broadly, on the basis of a general principle, confirmed on a number of occasions, of the equality of treatment of parties in the constitution of the arbitral tribunal.

89. However, without going so far as to challenge the validity of the constitution of the tribunal, a party may maintain that it should not have been considered as a party to the dispute, and that its presence as a participant in the proceeding initiated against it was without any contractual basis, or that it was not a party to the main contract, or that it was a third party to the arbitration agreement. In such circumstances the question will be whether the arbitrators have jurisdiction to rule in relation to that party.

90. Such questions must obviously be resolved as quickly as possible. It is in the interests of both the parties and the arbitrators that such questions be identified in the Terms of Reference. It will generally seem appropriate that they be resolved by means of a partial award. However, this route has the disadvantage that under certain arbitration laws which may be applicable it opens the way for an application to a national court to have the award set aside. In such circumstances, it may be uncertain whether the arbitral tribunal may proceed to investigate the merits of the case; the arbitral tribunal may thus be obliged to postpone dealing with the remainder of the questions in dispute. Arbitrators and parties are strongly recommended to set out, in the Terms of Reference itself, rules appropriate to the case in question both as regards how the tribunal is to go about reaching a decision, and as regards how the matter is to be taken forward in the event of an appeal before state courts.

B. Multi-party situations arising from developments in the dispute during the course of the arbitration proceeding

91. A multi-party situation that is identified or comes to light in the phase prior to the constitution of the arbitral tribunal may be dealt with as specified above. However, the situation may arise during the course of the arbitral proceeding. The extent to which the solutions envisaged above may or must also be applied in such circumstances should be examined.

92. If it is only a question of voluntary or compulsory joinder of a third party, it is certain that the resulting treatment will be no different whether it is requested or desired before or after the arbitral tribunal has been constituted and its Terms of Reference fixed. It should merely be pointed out that the problem will be raised before the arbitrators, who will be in a position to deliberate on the extent of their jurisdiction and to ascertain whether unanimous agreement has been reached between the parties to the arbitration and the third party so that the latter may be admitted to the proceeding which is under way.[Page38:] An agreement of this kind will take the form of an addendum to the Terms of Reference.

93. However, the arbitrators will not be passive observers of this agreement. The joinder of a third party may call into question the contractual link which has already been constituted between the arbitrators and the original parties, for example, if an arbitrator does not have the necessary skills for dealing with the questions to be resolved in relation to the said third party, or if he does not satisfy the requirements of independence and neutrality with regard to that third party, as he had done as regards the parties to the arbitration. The International Court of Arbitration could, therefore, if appropriate, intervene to modify the composition of the arbitral tribunal, in response to a challenge or a procedure to replace an arbitrator.

94. Occasionally, however, an arbitration becomes a multi-party proceeding while it is under way as a result of a change in status or capacity of a party to the arbitration, particularly in the event of a total or partial assignment or transfer of rights that may entail a total or partial transmission of the arbitral relationship.

95. As discussed above (paragraphs 15 et seq.), an operation of this kind may not only result in the substitution of one party for another, but may also lead to an increase in the number of parties. When it occurs before the arbitrators, it may immediately give rise to a challenge, in that a party may contest whether the transfer can be invoked against it, or it may allege that it was not validly effected, or, again, it may maintain that the transfer did not relate to the arbitration agreement.

96. It is up to the arbitral tribunal itself to resolve such objections, since as 'judge' of the action, it is of necessity also judge of any objections raised (apart from the exceptional case of an interlocutory question which by law would have to be dealt with by a national court). It will thus decide whether the alleged act resulted in the substitution of one party for another or the addition of one party to another.

97. Generally, such a change in the status or capacity of parties-even as to their civil status or their number-should not have any impact on the arbitrators' terms of reference. They will still have to resolve the same legal or factual questions in relation to the claims and the subject matter of the dispute. The arbitral tribunal must be able to make a ruling even without there being any need to draw up an addendum to the Terms of Reference as specified in Article 16 of the Rules.

98. However, this would not cover the situation already encountered above in which the arrival of a new party in the dispute raises the problem of the arbitrator's independence and neutrality, or his intellectual or professional ability to deal with the matter. This problem could be resolved, for example, simply by following the ordinary procedure applying for the replacement of arbitrators (Article 2, paragraphs 8 and 9, of the Rules).

99. The conduct of a proceeding involving more than two parties to the arbitration is certain to pose the arbitral tribunal a problem as regards organisation of hearings.

100. It is virtually impossible to set out general and objective rules in such circumstances, given the diversity which there may be between different situations. However, what is essential is that the arbitral tribunal must in every circumstance ensure strict equality between the parties and respect of a party's right to put its case. The implementation of these principles falls within the scope of the arbitrators' authority, but it is important to stress that the parties and the arbitrators are in a position to determine in the Terms of Reference how such principles are implemented.

101. In particular, care will be taken to include in the Terms of Reference a timetable for the exchange of written memoranda and production of documentary evidence, and, more generally, the method of dealing with written and oral evidence. In certain cases this may also provide an appropriate opportunity for specifying how evidence which may be confidential on the grounds of business secrecy is to be dealt with. In this connection, the Secretariat of the International Court of Arbitration would be able to provide practical examples of cases where it has been possible to respect both the confidentiality of certain documents and the principle of due process in accordance with the parties' right to put their case.

102. It is also recommended that the arbitral tribunal be empowered in the widest possible terms to exclude a party from the proceeding as [Page39:] soon as possible if it appears, after examination, that there is no reason for that party to be included in the arbitration proceeding. The arbitral tribunal should also be empowered to separate that party's case from the other cases, either so as to deal with it immediately or, on the contrary, to postpone dealing with it. In such cases it will rule by way of partial award. However, in these circumstances also, in view of the appeals before state courts which may ensue, the parties and the arbitrators will be well advised to stipulate in the Terms of Reference the consequences for the arbitration proceeding and how the arbitration is to proceed pending any such appeals.

IV. Conclusions and recommendations

103. Under the terms of Article 24 of the ICC Rules, arbitral awards are final and parties which have subjected themselves to the Rules are considered to have waived any rights of appeal which by law they may waive.

104. In any event, the International Court of Arbitration and the arbitrators must use their best endeavours to ensure that awards are enforceable at law, as provided in Article 26 of the ICC Rules.

105. Conscious of this duty, over the past few years the ICC has unceasingly striven to establish a method of administering multi-party arbitration likely to culminate in awards which are final, enforceable and effectively carried out to the satisfaction of the parties. Difficulties, which have been spectacular in some cases, have not always been easily overcome, but have remained exceptions and, after careful consideration, are not likely to have an impact on ICC practice as described above, and which the ICC is striving to improve day by day.

106. It is certain that the national courts responsible for checking the validity of awards will always have the last word on the subject, whether in the context of an action to have the award set aside, as allowed under certain national legislations, or in the course of an enforcement application. The subject is open to criticism, which is authorised by most national laws relating to international arbitration and, generally, by Article V(1)(d) of the New York Convention, which enables a judge to refuse recognition or enforcement of an award if it is proved to him 'that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place'.

107. Authoritative voices have urged the ICC and other institutions to draw up specific rules for multi-party arbitration, or to insert in its general Rules special provisions which would deal in advance with all difficulties. For example, it has been suggested that Article 2, para. 4, of the Rules should include a definition of the word 'parties' (which is to be distinguished from the word 'participants') to the arbitration and that it should deal with the situation of groups or sets of parties with identical interests opposed to other conflicting interests, in the hope of eliminating a particular difficulty considered recently to be the most sensitive: that resulting from a disagreement between co-defendants with regard to the nomination of their joint arbitrator.

108. However, this hope has turned out to be illusory. The mere fact that the Rules contain a regulation whereby a well-knit group of defendants with an identical stand confronting a single claimant would have to nominate one single arbitrator, failing which that arbitrator would be appointed by the Court, would not prevent any one of the co-defendants from subsequently maintaining before the arbitrator-and, later, before the judge verifying the validity of the award or dealing with enforcement of the award-that its own position was different, that it was wrongly deprived of the right of nominating an arbitrator itself, and, finally, that its position vis-à-vis the claimant would have justified a separate Request and a separate arbitration proceeding.

109. It has sometimes been proposed that the Rules should provide that, in a situation in which the arbitration clause foresaw three arbitrators, and in which two or more parties, either on the claimant or on defendant side, were unable to agree upon the joint nomination of an arbitrator, the nomination of all three arbitrators should be left to the Court.

110. Although this situation may well be acceptable if expressly foreseen by the parties, it can otherwise give rise to certain difficulties. Firstly, it could result in the depersonalisation of [Page40:] the arbitration, and may for this reason render ICC arbitration unattractive to certain users. Secondly, it could even be dangerous in that a group of parties would be able to deprive the opposing group of parties of their right to appoint an arbitrator by representing that it had not succeeded in agreeing upon its own arbitrator. In the course of its discussions, the Working Group was not able to reach a common viewpoint on this question.

111. Accordingly, the Working Group has considered that it was preferable to explain clearly what is thought to constitute the most prudent and the most effective approach which is appropriate to such a complex matter as multi-party arbitration and to limit the scope of its report to such a presentation.

112. This does not mean that one should dispense with the preparation of specific recommendations for users. The parties are the masters of their rights and, in procedural matters, their tactics. They are also the masters of the steps to be taken to preserve their legal rights as the circumstances of their cases demand. Claimants have a more specific and direct responsibility: it is for them to appreciate that in designating their opponents they may create, extend or restrict a multi-party arbitration situation, the complexity of which may be a source of insecurity from a legal point of view, not least for themselves.

113. In a multilateral relationship, whether involving a single contract or several related contracts, it may be appropriate or necessary to have a multi-party arbitration clause. One may turn for inspiration to the examples set out in the appendix. In general, the following precautions should be taken:

- The contracting parties may wish to enable any signatory of the clause to take part voluntarily in a proceeding initiated only as between some of the parties, or to authorise any party to the proceeding to join any other contracting party. Such clauses must be drafted very carefully. In particular, it is important to determine a time limit after which voluntary or compulsory participation may no longer be requested. Moreover, it will be desirable to determine whether such participation will affect the constitution of the arbitral tribunal given the identity of its members and the possibility that they may have a relationship with a participating party.

- The parties may wish to modify the composition of the arbitral tribunal depending on the number of parties involved in a dispute. Thus, for example, they may wish to provide for the constitution of an arbitral tribunal of four or five arbitrators where three or four parties are involved. This solution harbours major pitfalls and should be discouraged. It will be recalled that the ICC Rules of Arbitration only envisage the constitution of a tribunal of one or three arbitrators and that in any case the provisions of the Rules relating to the taking of decisions within the arbitral tribunal will have to be complied with. At a practical level, the preparation of a timetable will be all the more difficult if more arbitrators and lawyers are involved. Lastly, this solution will increase the cost of the proceeding.

- In contrast with the foregoing solution, the arbitration agreement may provide that in any event (i.e. whether the tribunal comprises one or three arbitrators), the arbitrators are all to be appointed by the ICC International Court of Arbitration. Although this solution is attractive by virtue of its simplicity, many arbitration users may consider that it depersonalises an arbitration too much.

- Another solution, although less frequently encountered, consists in the parties agreeing in advance on the identities of the arbitrators who are to decide any dispute. This solution appears risky-particularly when long-term contracts are involved because the arbitrators initially foreseen may no longer be available, independent or in a position to carry out their appointment when invited to do so.

- In any event, the clause should also deal with the question of the effect of an arbitral award upon parties who have not participated in or been brought into the proceeding.

- Where several proceedings resulting from related contracts are consolidated, any formula suggested by practitioners (see Appendix 2) should be considered in the light of the circumstances of the case in question. Advice should be taken from lawyers with proper experience of arbitration procedure and of the ICC Rules in particular.

114. Reaching the end of its investigations, the Working Group has come to the conclusion that [Page41:] it is improper to deal with multi-party arbitration as if it were susceptible of simple and uniform treatment. International trade gives rise to situations which have become extremely complex. These in turn call for such a wide range of solutions that it was no longer possible to apply the words 'multi-party arbitration' to this study. The use of the plural-multi-party arbitrations-therefore focuses on the changing realities of various situations and may dispel any illusions as to their limited scope or nature. Users and counsel will, no doubt, take these considerations into account.

115. For its part, the Secretariat of the ICC International Court of Arbitration is always ready to provide users with any assistance that may be needed.[Page42:]

Appendix 1

Selection of Multi-Party Arbitration Agreements

Note: The Working Group has decided not to propose any standard multi-party arbitration agreement, due to the diversity of possible situations. The clauses selected herein come from various sources and are published for illustrative and informative purposes only.

Clause 1

Draft multi-party arbitration clause studied but not approved by the Working Group on Multi-party Arbitration (1986). For inclusion in related contracts. This draft clause was to be applied in accordance with proposed 'Guidelines for ICC Multi-Party Arbitration' (1986), which were not put in effect.

Annex II to Document No. 420/276 - SJ (Original/GHP)

Multi-party arbitration clause

1. All disputes arising in connection with the present contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

2. The parties to the present clause agree that:

(a) If any such dispute raises issues which are the same as or are connected with issues raised in a related dispute arising in connection with a contract between a party to this contract and a third party, and provided that such related dispute is to be or has been submitted to arbitration under the ICC Rules,

(b) and if the parties to such related dispute have themselves agreed, in their original arbitration agreement or any subsequent agreement, that such related dispute shall be finally settled in an ICC multi-party arbitration together with any dispute which might arise under a connected contract,

(c) and provided that one or other of the parties to this contract also requires or accepts the same after learning of the said connected dispute, then such dispute hereunder and such related dispute shall be finally settled by the same arbitrator or arbitrators, who shall be appointed by common agreement amongst all the parties to the arbitration combined in this way, or by the Court of Arbitration of the ICC in accordance with the Guidelines for ICC Multi-Party Arbitration.

The ICC Court of Arbitration shall decide whether a dispute is prima facie to be settled in an ICC multi-party, but the final decision shall be made by the arbitrator or arbitrators.

Clause 2

In the context of a single contract, clause providing for arbitration under the ICC Rules by one or more arbitrators appointed by the ICC Court.

All disputes arising in connection with this Agreement shall be finally settled by arbitration carried on under the Rules of Conciliation and Arbitration of the International Chamber of Commerce of Paris (ICC). Said arbitration shall be carried out by one (1) or more arbitrators appointed by the ICC Court of Arbitration in accordance with said Rules and their interpretation by said Court for multi-party arbitrations. In that regard, the parties hereto waive the right to nominate an arbitrator and as of now accept the appointment made by the ICC Court as it deems best.

Clause 3

In a contract between a contractor and a partnership, this arbitration clause provides for ICC arbitration and seems to permit joinder and/or consolidation involving third parties where connexity is shown. Quoted by S. Jarvin in Multi-Party Arbitration: Identifying the Issues, London Colloquium, 15/3/86.)

'All claims, disputes and other matters in question arising out of, or relating to this Agreement, or to the breach thereof, shall be decided by arbitration which shall be conducted in English and finally settled according to the rules of Arbitration of the International Chamber of Commerce.

Except by written consent of the person or entity sought to be joined, no arbitration arising out of [Page43:] or relating to the Contract Documents shall include, by consolidation, joinder or in any other manner, any person or entity not a party to the Agreement under which such arbitration arises, unless it is shown at the time the demand for arbitration is filed that such person or entity is substantially involved in a common question of fact or law.'

Clause 4

This clause, suggested by a corporate legal department, provides for the agreement of joint defendants on the nomination of a co-arbitrator and, failing such agreement, for separate proceedings.

All disputes arising out of or in connection with the present Contract, including any question regarding its existence, validity or termination, shall be finally settled by arbitration in accordance with the Rules of Arbitration of ...

Each party shall nominate one arbitrator for confirmation by the competent authority under the applicable Rules (Appointing Authority). Both arbitrators shall agree on the third arbitrator within 30 days. Should the two arbitrators fail, within the above time limit, to reach agreement on the third arbitrator, he shall be appointed by the Appointing Authority. If there are two or more defendants, any nomination of an arbitrator by or on behalf of such defendants must be made by joint agreement between them. If such defendants fail, within the time limit fixed by the Appointing Authority, to agree on such joint nomination, the proceedings against each of them must be separated.

Clause 5

This clause provides for an arbitration between two groups of parties before an arbitral tribunal of three members, in the context of ad hoc or institutional arbitration (R.P. Budin, in Les clauses arbitrales internationales bipartites, multipartites et spéciales de l'arbitrage ad hoc et institutionnel, Payot, 1993, pp. 81, 82 and 93).

<u>Arbitrage ad hoc</u>

Le texte de la clause de base de l'arbitrage multipartite prévoyant la formation d'un tribunal arbitral de trois membres:

'§ 1 Tout litige découlant des présentes ou de tous autres accords conclus ou à conclure entre les mêmes parties ou certaines d'entre elles en relation avec les présentes sera tranché définitivement par un tribunal arbitral de trois membres, siégeant à ...', Suisse.

§ 2 A peine de nullité la demande sera notifiée par écrit et sous pli recommandé (ou par courrier spécial, fax, etc., selon l'accord des parties) par la ou les parties demanderesses agissant conjointement, à toutes les autres parties à la présente convention. Toutes autres notifications ou communications seront adressées sous pli recommandé (ou par courrier spécial, fax, etc.).

§ 3 La demande précisera contre quelle(s) partie(s) elle est dirigée. Le demandeur ou le groupe demandeur désignera simultanément son arbitre.

§ 4 Dans un délai de ... (en principe trente jours) dès la réception de la demande, les autres parties y répondront brièvement :

a) les parties visées par la demande en indiquant :

- si elles la contestent et

- si elles requièrent la mise en cause d'autres parties non visées par la demande ;

b) les autres parties en indiquant :

- si elles s'estiment concernées par le litige et demandent à y participer,

- dans l'affirmative, si elles demandent la mise en cause d'autres parties non visées par la demande.

§ 5 La ou les parties visées par la demande, celles qui demandent à participer à la procédure et celles qui sont mises en cause conformément au § 4 ci-dessus formeront entre elles le groupe défendeur, qui désignera le second arbitre dans un délai de ... (trente jours ou plus) dès sa constitution. Dans un délai de... (trente jours ou plus) les deux arbitres désignés choisiront le tiers-arbitre qui présidera le tribunal arbitral. A défaut, le tiers-arbitre sera désigné par l'autorité compétente (juge compétent du siège, institution d'arbitrage ou autre tiers désigné à cet effet par les parties dans la convention d'arbitrage).

§ 6 Si une partie isolée ne désigne pas son arbitre, celui-ci sera nommé, à la requête de la partie la plus diligente, par l'autorité compétente. [Page44:] Si un groupe de parties ne désigne pas son arbitre, l'autorité compétente interrogera ses membres pour connaître leurs raisons. S'il s'agit d'une abstention de leur part, l'autorité compétente désignera l'arbitre manquant. Si en revanche ces parties n'arrivent pas à se mettre d'accord sur le choix de leur arbitre, l'autorité compétente tentera de les mettre d'accord dans un délai de... ; en cas d'échec, après s'être informée auprès des différentes parties en cause des qualifications particulières éventuellement requises des arbitres, l'autorité compétente désignera les arbitres des deux parties ou groupes. Toute nomination d'arbitre déjà intervenue sera considérée comme nulle dans ce cas. Le tiers-arbitre sera alors désigné comme prévu au paragraphe 5.'

Arbitrage institutionnel

'La clause de base de l'arbitrage multipartite s'adapte sans difficulté à l'arbitrage institutionnel et elle pourra donc être utilisée telle quelle, si ce n'est qu'au paragraphe 2 il y a lieu de prévoir que la demande d'arbitrage sera notifiée à l'institution et non directement aux autres parties. Il appartiendra à l'institution de la notifier en fixant les délais de réponse nécessaires. La rédaction de la clause arbitrale pourra donc être quelque peu simplifiée puisque, au stade de la constitution du tribunal arbitral, de la fixation du siège, etc., si les parties n'ont rien convenu, l'institution interviendra efficacement, à la condition que son règlement lui donne les compétences nécessaires. Plusieurs solutions peuvent être adoptées concernant la désignation de l'arbitre unique et, surtout, la constitution du tribunal arbitral.'

Clause 6

In the context of joint venture agreements, this detailed clause, calling for ICC arbitration, provides for compulsory joinder and/or voluntary intervention of parties to the agreements.

<u>Arbitration </u>

Article I - Definitions

In this Schedule the following definitions shall apply (in addition to any terms defined in Schedule 1):

1.1 'Court' shall mean the International Court of Arbitration of the ICC.

1.2 'Dispute' shall mean any dispute, controversy or claim between some or all of the Parties (including, without limitation, any dispute concerning a valuation which has not been settled in accordance with paragraphs 1 and 2 of Schedule 4), arising out of or in connection with any of the Joint Venture Agreements and any other agreement which may in the future be entered into by the Parties (and any amendment thereto), and in which reference is made to this Schedule.

1.3 'ICC' shall mean the International Chamber of Commerce.

1.4 'Parties' shall mean the parties to the Joint Venture Agreements from time to time.

1.5 'Participating Parties' shall mean, collectively and singly, any Party that has pursuant to this Schedule, filed a Request for Arbitration, been named a defendant, been joined, or intervened, in an arbitration proceeding.

1.6 'Registrar' shall mean [X], or such other person as shall be appointed from time to time by the Company, on not less than 30 days notice to all Parties, to carry out substantially similar functions as those which [X] has been appointed to carry out on the date hereof.

1.7 'Rules' shall mean the Rules of Arbitration of the ICC.

1.8 'Secretariat' shall mean the Secretariat of the Court.

`Article II - Exclusivity

Arbitration pursuant to the provisions of this Schedule shall be the sole and exclusive mechanism for resolving any Disputes among the Parties.

Article III - Arbitration Rules

Disputes shall be finally settled under the Rules by three arbitrators appointed in accordance with the Rules as amended by the provisions of this Schedule. [Page45:]

Article IV - Arbitration Procedure

4.1 Parties

Any Party may, either separately or together with any other Party, initiate arbitration proceedings pursuant to this Schedule against any other Party.

4.2 Request for Arbitration

Any Party initiating arbitration proceedings pursuant to this Schedule in connection with any Dispute shall submit its Request for Arbitration to the Secretariat. The Party requesting arbitration shall instruct the Secretariat to send a copy of the Request and all attachments thereto to the defendant and to all other Parties, at the addresses provided by the claimant upon confirmation of such addresses by the Registrar.

4.3 Answer to the Request

The Secretariat shall send a copy of the Answer and of the documents annexed thereto to the claimant and all other Parties.

4.4 Notice of Joinder

Any defendant may join any other Party to any arbitral proceedings hereunder, provided that such joinder is based upon a Dispute which has substantially the same subject matter as a Dispute arising under the relevant Request for Arbitration or a (or the) defendant's counterclaim, if any. Such joinder shall be made through written notice to the Secretariat within 30 days from the receipt of the documents referred to in paragraph 4.2 (or, if applicable, such longer period as the Secretariat may allow under Article 4(1) of the Rules for the filing by that defendant of an Answer).

The notice of joinder shall contain the following information:

(i) name and address of the joined Party;

(ii) a statement of the defendant's case with relation to the Party that the defendant is joining.

The Party giving a notice of joinder shall instruct the Secretariat to send a copy of the notice of joinder and all attachments thereto to the joined Party and to all other Parties at the addresses referred to in paragraph 4.2. The joined Party may within 30 days (or such longer period as the Secretariat may allow) from the receipt of the notice of joinder set out its defence and (provided that it is based upon a Dispute which has substantially the same subject matter as a Dispute arising under the relevant notice of joinder) counterclaim, if any, and supply relevant documents. If it does so, it shall instruct the Secretariat to send copies to the claimant, the defendant and all other Parties. The rules stipulated in Article 4 of the Rules shall apply, mutatis mutandis.

4.5 Notice of Intervention

Any Party may intervene in any arbitral proceedings hereunder provided that such intervention is based upon a Dispute which has substantially the same subject matter as a Dispute arising under the relevant Request for Arbitration or a (or the) defendant's counterclaim, if any. Such intervention shall be made through written notice to the ICC not later than 30 days from receipt of a copy of the Answer or, if there is more than one Answer, the Answer upon which such intervention is based.

The notice of intervention shall contain the following information:

(i) name and address of the intervening Party;

(ii) a statement of the intervening Party's case with relation to the claimant, the defendant and any other Participating Party.

The Secretariat shall send a copy of the notice of intervention and the documents annexed thereto to all other Participating Parties for their responses, if appropriate, with a copy to all other Parties.

4.6 Effect of Joinder and Intervention

Any joined or intervening Party shall become a Participating Party, and shall be bound by any award rendered by the arbitral tribunal, even if it chooses not to participate in the arbitral proceedings.[Page46:]

Upon request to the arbitration tribunal, the joined or intervening Party shall have access to all other documents which are relevant to the Dispute that have been filed by or made available to any of the other Participating Parties.

4.7 Any Participating Party may, at the same time as it serves its Answer or its defence to a notice of intervention, a notice of joinder or a counterclaim, as the case may be, make a cross-claim against any other Participating Party, provided that such cross-claim is based upon a Dispute which has substantially the same subject matter as a Dispute arising under the relevant Request, notice of joinder, notice of intervention or counterclaim, as the case may be.

4.8 In Article 16 of the Rules, the words 'or cross-claims' shall be deemed to be included after the words 'The parties may make new claims or counterclaims'.

Article V - Appointment of Arbitrators

5.1 Each Participating Party shall nominate an arbitrator and (in case there are, or may subsequently be, more than two Participating Parties) state its position with regard to the choice of the three arbitrators in its Request, Answer, notice of joinder or notice of intervention, as the case may be.

5.2 Unless all of the Participating Parties have agreed on the choice of arbitrators by the expiration of the intervention period referred to in paragraph 4.5 or, in case a notice of joinder is served upon any Party, the applicable period for that Party to set out its defence and counterclaim, if any, the Court shall:

(a) if there are at that time only two Participating Parties (for which purpose any Participating Parties which are Associated Undertakings of each other, and which together serve a Request, an Answer, or a notice of intervention, or which are together served with a notice of joinder, shall, provided that the relevant pleadings do not allege that such Associated Undertakings have conflicting interests, be treated as a single Participating Party) appoint the arbitrators in accordance with Article 2(4) of the Rules, and

(b) in any other event shall appoint any or all arbitrators upon which the Participating Parties have not unanimously agreed.

5.3 For the avoidance of doubt it is confirmed that, in the circumstances described in paragraph 5.2(b), the Participating Parties expressly renounce their right to the appointment of an arbitrator of their choice.

Article VI - Place of Arbitration

The place of the arbitration shall be Geneva, Switzerland.

Article VII - Language

The proceedings before the Tribunal shall be conducted in the English language.

Article VIII - Validity of Award

8.1 Each Party shall recognise any award rendered pursuant to this Schedule regardless of whether it actually participated in the arbitration.

8.2 The Participating Parties hereby waive their right to any form of appeal or recourse to a court of law including the Federal Supreme Court of Switzerland or other judicial authority in reference to any award by the arbitral tribunal, insofar as such waiver may be validly made. This clause is a waiver of any action for annulment or appeal, according to Article 192 of the Swiss Federal Statute on Private International Law (December 18, 1987).

8.3 Awards shall be final and binding on the Participating Parties as from the date they are made. All awards may if necessary be enforced by any court having jurisdiction in the same manner as a judgement in such court.

Article IX - Advance on Costs

9.1 The Parties agree that the Court shall fix separate advances on costs in respect of each claim, counterclaim or cross-claim. [Page47:]

Clause 7

This clause was drafted in the context of a joint venture agreement. It distinguishes disputes between two, three and more than three parties and sets forth particular provisions for appointment of arbitrators in each case.

Multi-Party Arbitration

Enclosure I

Article x - Arbitration

x.1 Any dispute between the Parties in connection with this Agreement whether terminated or not, whether resulting from a claim in contract, tort or at law or from any other claim or controversy which may arise in connection with the activities contemplated in this Agreement or the application, implementation, validity breach or termination of this Agreement or any provision thereof, and whether or not a Party ceased to be a Party to this Agreement, shall be finally and exclusively settled by arbitration in ... under the UNCITRAL Arbitration Rules by three arbitrators who shall be appointed in accordance with the following provisions:

(i) if the dispute is between 2 (two) Parties, each Party shall appoint 1 (one) arbitrator and the 2 (two) arbitrators so appointed shall select the third arbitrator who shall act as the presiding arbitrator;

(ii) if the dispute is between 3 (three) Parties, each Party shall appoint one arbitrator and the 3 (three) arbitrators thus appointed shall select from amongst them the person who shall act as the presiding arbitrator;

(iii) if the dispute is between more than 3 (three) Parties, each Party shall nominate a candidate for appointment as arbitrator and the Parties shall then seek to agree on the appointment of 3 (three) arbitrators from amongst the candidates nominated and the 3 (three) arbitrators thus appointed shall select from amongst them the person who shall act as the presiding arbitrator;

(iv) if within a period of 30 (thirty) days from the date of the notice of arbitration, any of the Parties involved in an arbitration between 2 (two) or 3 (three) Parties has failed to appoint an arbitrator, or, in the case of an arbitration between 2 (two) Parties, the 2 (two) appointed arbitrators have failed to select the third arbitrator within 30 (thirty) days after both arbitrators have been appointed, the Appointing Authority shall appoint such arbitrator or arbitrators as have not been appointed, and, in the case of an arbitration between 3 (three) Parties, the three arbitrators thus appointed shall select from amongst them the person who shall act as the presiding arbitrator;

(v) if within a period of 30 (thirty) days from the date of notice of arbitration, the Parties involved in an arbitration between 4 (four) or more parties, have failed to agree on the appointment of 3 (three) arbitrators, the Appointing Authority shall appoint such arbitrator or arbitrators as the Parties have failed to agree on and the 3 (three) arbitrators thus appointed shall select from amongst them the person who shall act as the presiding arbitrator;

(vi) if within a period of 30 (thirty) days after the appointment of three arbitrators, the arbitrators have failed to agree on the presiding arbitrator, the Appointing Authority shall appoint the presiding arbitrator from amongst these 3 (three) arbitrators;

(vii) the Appointing Authority and administering body for the arbitration shall be ...

x.2 The arbitrators shall in all respects be impartial and independent. Neither the presiding arbitrator selected pursuant to the provisions of Article X.1 (i) nor any arbitrator appointed by the Appointing Authority shall be a national of ...

x.3 The arbitration proceedings shall be conducted in the English language.[Page48:]

x.4 The arbitration awards shall be final and binding on the Parties and shall in all respects be fully valid and enforceable without any judicial review other than strictly necessary for the enforcement of the award pursuant to any applicable international convention.

Appendix II

Selection of Arbitration Rules Specifically Providing for Multi-Party Arbitration (extracts)

British Columbia International Arbitration Rules

Court assistance in taking evidence and consolidating arbitrations

27. (1) (...)

(2) Where the parties to two or more arbitration agreements have agreed, in their respective arbitration agreements or otherwise, to consolidate the arbitrations arising out of those arbitration agreements, the Supreme Court may, on application by one party with the consent of all the other parties to those arbitration agreements, do one or more of the following:

(a) order the arbitrations to be consolidated on terms the court considers just and necessary;

(b) where all the parties cannot agree on an arbitral tribunal for the consolidated arbitration, appoint an arbitral tribunal in accordance with section 11(8);

(c) where all the parties cannot agree on any other matter necessary to conduct the consolidated arbitration, make any other order it considers necessary.

(3) Nothing in this section shall be construed as preventing the parties to two or more arbitrations from agreeing to consolidate those arbitrations and taking any steps that are necessary to effect that consolidation.

Règlement du CEPANI (Centre belge pour l'étude et la pratique de l'arbitrage national et international) (1/4/88)

Art. 20 - Arbitrage multipartite. - Lorsque plusieurs contrats contenant la clause d'arbitrage du CEPANI donnent lieu à des différends qui présentent entre eux un lien de connexité ou d'indivisibilité, le président du CEPANI a le pouvoir d'en ordonner la jonction.

Cette décision est prise, soit à la demande du ou des arbitres, soit, avant tout autre moyen, à la demande des parties ou de la partie la plus diligente, soit même d'office.

Si la demande est accueillie, le comité de désignation ou le président du CEPANI désigne l'arbitre ou les arbitres chargés de statuer sur le litige faisant l'objet de la décision de jonction ; s'il y a lieu, il porte à cinq au maximum le nombre des arbitres.

Le comité de désignation ou le président du CEPANI prend sa décisions après avoir convoqué par lettre recommandée les parties et, le cas échéant, les arbitres déjà désignés.

Il ne peut ordonner la jonction de différends dans lesquels une décision d'avant dire droit, une décision de recevabilité ou une décision sur le fond de la demande a déjà été rendue.

Règlement d'arbitrage de la Chambre de commerce et d'industrie de Genève (CCIG)(1/1/92)

Pluralité de demandes d'arbitrage, arbitrage multipartite

16. Pluralité de demandes

16.1 Si un arbitrage est introduit entre des parties déjà engagées dans une autre procédure arbitrale soumise au présent règlement, la CCIG peut attribuer la seconde cause au tribunal arbitral constitué pour statuer sur la première, les parties étant réputées avoir renoncé à leur droit de désigner un arbitre dans la seconde cause.

16.2 Pour décider de cette attribution, la CCI tient [Page49:] compte de l'ensemble des circonstances, notamment des liens entre les deux causes et de l'avancement de la première.

17. Arbitrage multipartite en général

17.1 Dans les arbitrages comprenant plus de deux parties, y compris en cas de participation d'un tiers au sens de l'article 18, le nombre des arbitres est déterminé selon l'article 11.

17.2 Les parties peuvent convenir du mode de désignation des coarbitres. A défaut d'une telle convention, les coarbitres sont nommés par la CCIG, qui prend en considération les propositions des parties.

17.3 Le président ou l'arbitre unique sont nommés conformément à l'article 12.

`18. Participation d'un tiers

18.1 Si un défendeur entend faire participer un tiers comme partie à l'arbitrage, il doit le déclarer dans sa réponse et y exposer les motifs de cette participation. Il dépose auprès de la CCIG un exemplaire supplémentaire de sa réponse.

18.2 La CCIG communique la réponse au tiers dont la participation est requise, les dispositions des articles 8 et 9 étant applicables par analogie.

18.3 Dès réception de la réponse du tiers, la CCIG décide de la participation du tiers dans l'instance déjà pendante compte tenu de l'ensemble des circonstances. Si elle admet la participation du tiers, elle procède à la constitution du tribunal arbitral conformément à l'article 17 ; si elle n'admet pas la participation, elle procède selon l'article 12.

18.4 La décision de la CCIG sur la participation du tiers ne préjuge pas de la décision des arbitres sur ce même sujet. Quelle que soit la décision des arbitres sur cette participation, la constitution du tribunal arbitral ne peut être remise en cause.

London Court of International Arbitration Rules (1/1/85)

'13.1 Unless the parties at any time agree otherwise, and subject to any mandatory limitations of any applicable law, the Tribunal shall have the power, on the application of any party or of its own motion, but in either case only after giving the parties a proper opportunity to state their views, to:

(...)

(c) allow other parties to be joined in the arbitration with their express consent, and make a single final award determining all disputes between them;'

Netherlands Arbitration Institute Arbitration Rules

Article 41 - Third Parties

1. A third party who has an interest in the outcome of arbitral proceedings to which these Rules apply may request the arbitral tribunal for permission to join the proceedings or to intervene therein.

2. Such request shall be filed with the Administrator in six copies. The Administrator shall communicate a copy of the request to the parties and to the arbitral tribunal.

3. A party who claims to be indemnified by a third party may serve a notice of joinder on such a party. A copy of the notice shall be sent without delay to the arbitral tribunal, the other party and the Administrator.

4. The joinder, intervention or joinder for the claim of indemnity may only be permitted by the arbitral tribunal, having heard the parties and the third party, if the third party accedes to the arbitration agreement by an agreement in writing between him and the parties to the arbitration agreement. On the grant of request for joinder, intervention or joinder for the claim of indemnity, the third party becomes a party to the arbitral proceedings.

5. In case of a request or notice as referred to in paragraphs (1) and (3), respectively, the arbitral tribunal may suspend the proceedings. After the suspension, the proceedings shall be resumed in the manner as determined by the arbitral tribunal, unless the parties have agreed otherwise.

6. The provisions on the costs of the arbitration contained in the sixth section shall apply accordingly to a third party who has acceded to the arbitration agreement in accordance with the provisions of paragraph (4).[Page50:]

Rules of Arbitration and Conciliation of the International Arbitral Centre of the Federal Economic Chamber Vienna (1/9/91)

Article 10

1) Two or more Claimants or two or more Defendants shall mutually agree whether they wish the dispute to be decided by a sole arbitrator or by three arbitrators and, if a decision by three arbitrators is wished, they shall jointly nominate an arbitrator.

2) If there is no agreement among the Claimants or among the Defendants concerning the number of arbitrators, the said Claimants or Defendants shall be requested by the Secretary to agree on the number of arbitrators within thirty days after delivery of the statement of claims.

3) If no agreement as to the number of arbitrators is reached within the period indicated in paragraph 2 of the present Article, the Board shall determine whether the dispute is to be decided by one or three arbitrators.

4) If the Claimants or the Defendants have agreed that the dispute is to be decided by three arbitrators, without having nominated an arbitrator, they shall be requested by the Secretary to indicate the name and address of an arbitrator within thirty days after delivery of the request.

5) If no arbitrator is nominated within the period indicated in paragraph 4 of the present Article, and if the dispute is to be decided by three arbitrators, the arbitrator for the defaulting Claimants or Defendants shall be appointed by the Board.

International Arbitration Rules of the Zurich Chamber of Commerce (1/1/89)

Art. 12 - Appointment of the Co-arbitrators - If the parties have so agreed in writing, for two-party arbitration they appoint one member of the three-person arbitral tribunal each. For the claimant, Art. 9 subs. letter d. ¹ applies; the chairman of the Arbitral Tribunal sets a deadline for the respondent to appoint its arbitrator.

If the claimant has appointed an arbitrator and the respondent fails to appoint an arbitrator, the chairman of the Arbitral Tribunal asks the president of the Zurich Chamber of Commerce to appoint an arbitrator instead.

If the parties did not provide that they would appoint arbitrators, or, in multi-party arbitration, the chairman of the Arbitral Tribunal appoints his co-arbitrators from a list of four or more names submitted to him by the President of the Chamber of Commerce.

Art. 13 - Multi-Party Arbitration - If there are several claimants or several respondents, or if the respondent, within the deadline for the answer, files a claim with the Zurich Chamber of Commerce, against a third party based on an arbitration clause valid according to Art. 2 subs. 2, an identical three-man Arbitral Tribunal is appointed according to Art. 12 subs. 3 for the first and all other arbitrations.

The Arbitral Tribunal may conduct the arbitrations separately, or consolidate them, partly or altogether.

1

'Art. 9 - Commencement of Arbitration - The claimant must submit the following, in four copies, to the Zurich Chamber of Commerce:

(...)

d) In two-party arbitration, if the arbitration agreement provides that the parties shall nominate one member of a three-men arbitral tribunal each: Name and address of the arbitrator nominated by claimant;'

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