Consolidation Under the English Arbitration Act 1996: A View from the Netherlands

Abstract

Section 35 of the Arbitration Act 1996 provides that the parties may agree that the arbitral proceedings shall be consolidated with other arbitration proceedings, or that concurrent hearings shall be held. In the absence of an explicit agreement, the tribunal shall not have the power to consolidate or hold concurrent hearings. In this note, an attempt will be made to comment on this provision from an international perspective, in particular from a Dutch angle. The reason for this is that there is relevant experience in the Netherlands. Since 1986, the Netherlands Arbitration Act1 has provided that parties to arbitral proceedings pending in the Netherlands may request the President of the District Court in Amsterdam to consolidate these proceedings (in full or partially) with other arbitral proceedings commenced before another arbitral tribunal in the Netherlands. Parties may by agreement exclude this possibility. The President is also given the power to appoint the arbitrator(s) and determine the applicable procedural rules, if the parties are unable to agree on these issues.2 The need for consolidation is often said to be most acute in the fields of maritime and construction arbitration. For the Netherlands, the problem is most keenly felt in the construction industry, where submitting disputes to arbitration is standard practice. In addition to the Netherlands Arbitration Institute which deals with all types of arbitration, a number of specialized arbitration institutes exist which exclusively administer construction arbitrations. Separate institutes have been created to deal with the various relationships encountered in a typical construction project, such as the relationship with the architect, the technical adviser, etc.3 It is largely as a result of lobbying by the construction industry that the consolidation provision was …