Consolidated Arbitrations, the New York Arbitration Convention and the Dutch Arbitration Act 1986 - a Critique of Dr. van den Berg

Abstract

In a previous Note1, Dr. Albert Jan van den Berg considered whether arbitration awards resulting from court ordered consolidations would be enforceable under the 1958 New York Arbitration Convention. He concluded that neither ground (a) nor (d) of Article V (1) of the Convention could be invoked by the party resisting enforcement.2 His argument as regards (d) is in my opinion somewhat short; and I disagree with his general conclusion that a court ordered consolidation would not raise problems at the enforcement stage. Dr. van den Berg's conclusions are based on the assumption that the parties have agreed to arbitrate in a given jurisdiction and that the law of that jurisdiction allows for court ordered consolidation of related arbitrations. His conclusion would apparently be different if one of the parties involved had not agreed to arbitration at all or if the parties had wished to arbitrate in different jurisdictions. From the point of view of an arbitral institution the question of consolidation is of growing importance, because like the ICC Court of Arbitration, an institution often has to fix the place of arbitration and to compose all or part of the arbitration tribunal. Indeed, an arbitral institution often has to decide whether the arbitration tribunal is to be composed of one or three arbitrators. In discharging these functions, the institution must be influenced by the parties' wishes (express or implied) regarding possible consolidation of their case with other cases under its rules as well as by the overall objective that the award should be enforceable, in particular under the New York Convention. I suggest that by agreeing on (say) the ICC Rules of Arbitration, the parties cannot be considered as having agreed to the place of arbitration which the ICC will fix in the absence of an …