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parties, the disputes in the arbitrations arise in connection with
the same legal relationship, and the Court finds the arbitration
agreements to be compatible.
Conditions for Consolidation
The first scenario in which different arbitrations may be consoli-
dated is the parties’ agreement. If there is an explicit agreement of the
parties in all of the arbitrations to be consolidated, the Court may order
consolidation.
The second scenario is the case in which all of the claims are made
under the same arbitration agreement. In this instance, the arbitrations
may be consolidated even if the parties are not the same
1
. This broad-
er scope adopted by the 2012 Rules is considered as a more useful and
appropriate preference, since there is usually no reason to exclude con-
solidation from the beginning where all of the parties are bound by the
same agreement to arbitrate, even though they may not be parties to
both pending arbitrations
2
. On the other hand, it can be the case that
the claims made in these arbitrations are totally unrelated to each other.
In such cases, the Court shall consider on a case-by-case basis whether
to consolidate the cases that have been brought under the same arbi-
tration agreement. In the event that there is no link between the claims,
then the Court may refuse to consolidate the arbitrations
3
.
The third and the last scenario is that the claims are made under
more than one arbitration agreement, under the condition that the arbi-
trations are between the same parties, the disputes in the arbitrations
have arisen in connection with the same legal relationship, and the
Court finds the arbitration agreements to be compatible. The arbitra-
tion agreements may be considered incompatible in cases where fac-
tors such as the place of arbitration, the language of arbitration, the
mechanism for selecting arbitrators, or the number of arbitrators are
different.
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1
Please note that this is an amendment to the 1998 Rules that required the parties to be the same.
This issue will be further examined under the title, “Modifications Made by the 2012 Rules” of
this article.
2
Jason Fry, Simon Greenberg, Francesca Mazza
, The Secretariat’s Guide to ICC Arbitration,
ICC Publication 729 (Paris 2012), p. 113 (“Secretariat’s Guide”).
3
Secretariat’s Guide, p. 113.