Consolidated Arbitrations, the New York Arbitration Convention and the Dutch Arbitration Act 1986 - A Replique to Mr Jarvin

Abstract

It was not my ‘general conclusion’, as Mr. Sigvard Jarvin writes, that ‘a court ordered consolidation would not raise problems at the enforcement stage’ under the 1958 New York Convention.1 Skilful lawyers are as a rule able to raise problems at any stage, particularly on enforcement. I merely concluded my Note by saying that I was ‘inclined to consider an award which is the result of a judicially ordered consolidation of arbitrations enforceable under the New York Convention’. Mr. Jarvin's learned comment has not convinced me that this view is necessarily erroneous. Mr. Jarvin's comment focuses on the parties' agreement with respect to the place of arbitration and the composition of the arbitral tribunal in conjunction with article V(1)(d) of the New York Convention. He distinguishes between four categories in which permutations are made as to whether or not the parties have agreed on the place of arbitration and on the composition of the arbitral tribunal. The four categories are: 1. the parties have agreed on the place of arbitration and on a method of selecting arbitrators; 2. no agreement has been made on the place of arbitration but the parties have agreed on the method of selecting arbitrators; 3. the parties have agreed on the place of arbitration but not on how to compose the arbitration tribunal; and 4. there is neither agreement on the place of arbitration nor on how to compose the arbitration tribunal. Mr. Jarvin concludes that in the third and fourth categories no problem will arise under Article V(1)(d) of the Convention. His adverse conclusion regarding the first and second categories, however, raises questions concerning the posible effect of the mandatory rules of an arbitration law on the parties' agreement and the construction of Article V(1)(d) of the Convention. As far as the applicable arbitration law is concerned, …