The various contributions to this Special Supplement may at first sight seem to concern disparate matters or problems. However, a closer look shows them to be woven together by a common thread.

The application of lis alibi pendens to court/arbitral, arbitral/arbitral proceedings would reduce procedural activity regarding substantially the same parties and matters and thereby save time, money and human resources. It is also likely to have the moralizing effect of discouraging procedural tactics aimed at wearying the other party by joining battle on several fronts. From a policy point of view, it can help to avoid the rendering of contradictory decisions vying for immediate enforcement. Consolidation of court and arbitral proceedings would appear to pursue similar goals. Such goals may even be said to underlie collateral estoppel and res judicata, which identify issues and disputes that have already been decided so as to ensure that conflicts and questions that have previously been settled remain at rest, thereby not only preserving the peace but also economizing on time, money and effort.

Similar considerations also apply to multiparty arbitrations. The incorporation of additional parties not mentioned in the arbitration request is a way of averting conflicting decisions and superfluous procedural activity. Again, it might also serve broader notions of procedural efficiency and harmony or even some incipient vision of how ideally to organize the resolution of international economic and business disputes through international arbitration: given the objectives of procedural fairness and the evenhanded treatment of parties, why should the party initiating arbitral proceedings have overriding power to determine the parties to those proceedings?

The main difficulty when attempting to tackle these matters, as well as their common denominator, is that they necessarily test the outer limits of international commercial arbitration as we have come to know it, i.e. a tool for handling international commercial disputes that has thrived and proved its efficiency and usefulness by relying above all on the free and presumably lucid and informed will of the parties, with minimum interference from state courts and authorities, and without seeking the creation of an organized world system of arbitral justice.

Accordingly, merchants and economic operators are considered to have looked before leaping when accepting an arbitration clause. Their original intentions and expectations are not to be worked out paternalistically ex post facto when their relationships start to go awry and their lawyers look for ways of making life a misery for the other party and its lawyers.

It is to be inferred from this line of thought that if the parties wished to forestall the multiplication of arbitral and court proceedings on the same subject matter, avoid the risk of conflicting decisions, ensure that all parties in any way involved in or affected by the transaction could be brought into the same arbitral proceedings, and prevent the party commencing the arbitral proceedings from monopolizing the identification of the parties to the proceedings, then they should have provided for those matters in their arbitration agreement or chosen arbitration rules in which such matters are adequately covered. It is not for courts of law and arbitral institutions (in the latter case, other than as allowed for in their arbitration rules) to protect the parties from their lack of foresight or to subject arbitration to the same constraints of procedural harmony and economy that are applied by the judiciary.

An additional, and by no means minor, difficulty is that some of these problems test the outer limits not only of arbitration but also of court adjudication. The absence of an international judiciary with overarching powers to consolidate arbitral and court proceedings that take place in different countries - as will most likely be the case in international transactions and disputes - severely limits the possibility and effectiveness of consolidation, should this be desired.

The diversity of legal traditions and differences between arbitration laws are further factors to be borne in mind when looking into these questions. As soon as one leaves the comfortable but limited field of general principles of law enjoying wide international consensus, one is thrown back on the happenstance of local laws, with the risk this brings of unexpected surprises for at least one of the parties in the case. For instance, a Latin-American party that has selected a common law country as the arbitral venue would hardly expect to see collateral estoppel applied by an arbitral tribunal sitting in that country. Nor would it be appropriate to invoke collateral estoppel in the course of an arbitration in respect of an issue settled in court or arbitral proceedings in which the party against which collateral estoppel is raised did not participate. These are particularities of local procedural law, which should not interfere in the process of international arbitration and its outcome, rather than essential principles of public policy at the seat of the arbitration, which parties or their counsel are expected to know or learn about in advance. Resorting to these and other legal constructs, including lis alibi pendens, should not depend either on the legal tradition to which the arbitrators belong if not shared by all the parties in the case.

As suggested by Dominique Hascher in his noteworthy report on res judicata to the French Committee on Private International Law, a possible answer for some of these problems - at the arbitral level at least - would seem to lie in the development of notions constituting truly universal rules that international arbitrators should feel compelled to observe and apply. Such notions and rules - which the parties could be deemed to know and to have accepted when agreeing on international arbitration, irrespective of their origins or legal traditions - should enjoy worldwide consensus. However, as a word of warning, it could be harmful to international arbitration to resort to such notions before the required level of consensus is reached, if the legal traditions of the parties would make it inappropriate to do so.

The incorporation of additional parties to arbitration proceedings in the absence of a multiparty arbitration clause expressly allowing for this requires special consideration. The ICC Rules of Arbitration, like most other international arbitration rules, are essentially based on a bipolar structure whereby the claimant initiating the arbitration proceedings defines the parties to those proceedings. The reason for placing the claimant in such a privileged position is not that arbitration rules have a dogmatic parti pris in favour of claimants, but that, in order to preserve the efficiency, predictability, cost-effectiveness and rapidity of arbitral proceedings, the party taking the risk of initiating them should be in a position to plan in advance the procedural strategy to be adopted in the case, prepare for the substantive issues likely to be debated and the defences that may be expected and, naturally, anticipate the costs and timeframe involved. Advance planning makes for predictability, contributes to the management of risk, and thus enables optimal use to be made of time and other valuable resources.

The procedural advantage enjoyed by the claimant is part and parcel of the core benefits economic and commercial operators expect from international arbitration. It is for such benefits that operators prefer international arbitration to other methods of public or private dispute resolution. If, for reasons concerning their reciprocal relationship or transactions, the parties to an arbitration agreement believe that the claimant should forgo such advantage, in part or in full, they should state so expressly in their agreement. What happens, however, if the parties have failed to make such a statement? Can the arbitral institution or the arbitration tribunal limit, reduce or remove the claimant's monopoly when identifying the parties in the case?

In order to answer this question, it is necessary to ponder on a number of others. How would the reduction or removal of such monopoly affect the predictability, cost-efficiency and rapidity of arbitral proceedings and, therefore, the appeal of international commercial arbitration to international commercial and economic operators? Would not the effect of taking away the claimant's monopoly be to give the other actual or potential parties a decisive or unilateral say in the fashioning of the proceedings, their pace, duration, cost and even their outcome, rather than to even out the playing field? Thus, far from promoting procedural equality, the imbalance previously favouring the claimant would instead be shifted to the benefit of the other present and future parties.

Finding the right solution to this problem would appear to depend not on striving to reach some sort of (unattainable) ideal procedural equality for the parties, but on choosing the path that would best serve the purpose of preserving the characteristics that make international commercial arbitration attractive to its user, i.e., once again, predictability, cost and procedural efficiency, and a timeframe that is in keeping with the realities of the case.

The traditional principle enshrined in international arbitration rules - be they ICC's or those of other institutions - clearly giving the claimant the right to determine the parties to the case has the virtue of ensuring the predictability upon which cost and procedural efficiency and rapidity depend. As a hard-and-fast rule, it enables parties to know from the outset exactly where they stand. Should they wish to exclude the claimant's monopoly in identifying the parties to the case, it is up to them to include alternative provisions in an explicit multiparty arbitration clause reflecting their different position on how to integrate parties into any proceedings that might arise.

Only when the principle of good faith so requires should the stringency of this hard-and-fast rule be tempered in absence of an explicit multiparty arbitration clause. However, such a step should be prompted by the specific characteristics of the case in question rather than by general and abstract considerations of procedural harmony and the avoidance of conflicting decisions. The legitimate expectations the parties may reasonably be deemed to have had in good faith when entering into their arbitration agreement should be taken into consideration, not ex post facto arguments that emerge after the dispute has arisen, when partisan tactics and strategies have a tendency to take over.

The recent practice of the ICC International Court of Arbitration, as presented by Anne Marie Whitesell and Eduardo Silva-Romero, seems to be guided by this principle on the rare occasions when it departs from the rule according to which the claimant determines the parties to the proceedings. Exceptions to this rule are allowed only if the parties to be added are the target of a claim or claims in the arbitration and have signed the arbitration agreement, and those requesting the addition of the new party are already parties to the arbitral proceedings.

Even in such limited cases, one could imagine the new party being added only if the principle of good faith would manifestly suffer if the party were not to be included in the arbitration. This could happen, for example, where the respondent shares a joint and several obligation towards the claimant with another party not mentioned as co-respondent in the arbitration request and wishes to join that other party in the proceedings.

On the other hand, the joinder of new parties proposed by the claimant or another person after the signing or approval of the Terms of Reference and without the agreement of all parties (existing and new) seems questionable, even if the party to be added has already signed the arbitration agreement and the following prior and unavoidable requirement has been met, namely that such party is willing to accept an arbitral tribunal already constituted by the other parties or by the ICC International Court of Arbitration in the limited multiparty situation specifically defined in Article 10(1) of the ICC Rules of Arbitration. The wording of Article 19 of the ICC Rules of Arbitration - conferring upon the arbitral tribunal the power to accept new claims - does not appear to have been intended to authorize arbitrators to join a new party at that juncture against the will of any of the original parties if, say, one of the original parties files a cross-claim against the party to be added.

Indeed, it has been the constant practice of the ICC International Court of Arbitration to establish the parties to the proceedings at their inception, well before the Terms of Reference have been drawn up, and never after the constitution of the arbitral tribunal. Although, when deciding on its own jurisdiction under Article 6(2) of the ICC Rules of Arbitration, an ICC arbitral tribunal may decide to hear a case in respect of only some of the parties initially established by the ICC International Court of Arbitration, it may not add new parties to the proceedings without the agreement of all the original parties. This is a practice that should be upheld for reasons of predictability and cost and procedural efficiency, which are at the very heart of the ICC Rules of Arbitration. Were new parties allowed to be joined to a case by way of Article 19 of the ICC Rules of Arbitration, the ICC International Court of Arbitration would effectively lose control over this important aspect of ICC arbitral proceedings, which helps to ensure their efficiency and their acceptance in business and economic circles.

The present Special Supplement contains a rich collection of contributions helping to clarify these important questions. Through the diversity of views expressed in its pages, it eloquently reflects the complexities of international commercial arbitration and the variety of approaches that may be explored to deal with them.