Joinder and Consolidation

Abstract

Article 28: Joinder 28.1 At any time following the Chamber’s notice of the commencement of the arbitration pursuant to Article 3, and before the appointment of the arbitral tribunal, a party wishing to join an additional party to the arbitration shall submit to the Chamber, and at the same time to all other parties to the arbitration and to the additional party, a written request for arbitration against the additional party (the ‘Request for Joinder’), including or accompanied by all the items prescribed for a Request in accordance with Article 2.2. 28.2 The additional party shall submit a response to the Request for Joinder (the ‘Response to Request for Joinder’), the time limit, form and content of which shall be as prescribed for a Response in accordance with Article 4. 28.3 The Chamber shall join the additional party to the existing arbitration, provided that no additional party shall be joined pursuant to Article 28.1 unless the Chamber is prima facie satisfied that an arbitration agreement conforming to Article 1.1 may exist between all the parties, including the additional party. 28.4 At any time following the appointment of the arbitral tribunal, a party wishing to join an additional party to the arbitration shall proceed in the manner prescribed by Article 28.1, provided always that: (a) the additional party shall not be joined after the appointment of the arbitral tribunal unless all parties to the arbitration and the additional party so agree in writing, and further agree that the additional party shall waive any right to participate in the selection of the arbitral tribunal that it would or might have had, had it been joined prior to the appointment of the arbitral tribunal; (b) the arbitral tribunal shall, after consultation with the parties, determine in its sole discretion whether the additional party should be joined, taking into account the stage of the arbitration, whether joinder would serve the interests of justice and efficiency, and such other matters as it considers appropriate in the circumstances of the case; and (c) the arbitral tribunal, if it permits joinder, shall determine the time, form and content of any Response to Request for Joinder. 28.5 If joined, the additional party shall be a party to the arbitration for all purposes. 28.6 A Request for Joinder and a Response to Request for Joinder may, but need not, be submitted to the Chamber using the Chamber’s online filing form located at www.bcdr-aaa.org. Article 29: Consolidation 29.1 If two or more arbitrations subject to these Rules are commenced pursuant to the same arbitration agreement and between the same parties, the Chamber may, in its discretion and after consultation with the parties, consolidate the arbitrations into a single arbitration subject to these Rules, provided that no arbitral tribunal has yet been appointed in any of the arbitrations to be consolidated. 29.2 Following the appointment of the arbitral tribunal, the arbitral tribunal shall, on the application of any party, and having consulted all the parties, have the power to consolidate two or more arbitrations commenced under these Rules into a single arbitration, provided that no arbitral tribunal has been appointed in the other arbitration or arbitrations, or, if appointed, is the same arbitral tribunal as the arbitral tribunal appointed in the arbitration that commenced first; and (a) all parties to the arbitrations to be consolidated have agreed in writing to consolidation; or (b) all claims and counterclaims in the arbitrations are made under the same arbitration agreement; or (c) if the claims and counterclaims in the arbitrations are made under more than one arbitration agreement, the arbitrations involve the same parties, the disputes in the arbitrations arise in connection with the same legal relationship and the arbitral tribunal determines that the arbitration agreements are compatible. 29.3 In determining whether to consolidate two or more arbitrations, the arbitral tribunal shall take into account the stage of the arbitrations, whether the consolidation of the arbitrations would serve the interests of justice and efficiency, and such other matters as it considers appropriate in the circumstances of the case. 29.4 When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed in writing by all parties or the arbitral tribunal determines otherwise.