06.ANA METIN ingilizce.18

The Court’s Discretion on Consolidation

Taking into consideration the wording of Art. 10, which includes

the term “may,” it should be stated that the Court has discretion to grant

the consolidation. The Court may consolidate, or may deny the request,

even though the requirements under Art. 10 are met, considering the

case at hand.

Pursuant to Art. 10(2) of the Rules, in exercising this discretion,

the Court may take into account any circumstances it considers to be

relevant, and consider factors such as whether one or more arbitrators

have been confirmed or appointed in more than one of the arbitrations,

and if so, whether the same or different arbitrators have been con-

firmed or appointed. If the arbitrators have been confirmed in more

than one of the arbitrations, and if they are different individuals, the

Court will not be able to constitute a single arbitral tribunal. As the

arbitrations would become one single arbitration once consolidated, to

be decided by a single arbitral tribunal, the constitution of a single arbi-

tral tribunal would be necessary. Therefore, it would be impossible to

constitute a single arbitral tribunal unless the different arbitrator, or

arbitrators, resigns or is removed by the Court at the parties’ request

It should be emphasized that the Court is not limited to the exam-

ples stated in the relevant article, and may consider any other circum-

stance it considers relevant, such as the procedural stage of the pro-

ceedings, and whether the terms of reference have been established

The party requesting consolidation shall submit a written request

to the ICC Secretariat. It is preferable that the party provides the nec-

essary information and explanations to the Court in order for it to

decide on consolidation, such as the link between the disputes, and the

grounds for granting consolidation under the Rules.

ARBITRATION LAW

171

Secretariat’s Guide, p. 113.

Marily Paralika, Alexander G. Fessas

, Joinder, Multiple Parties, Multiple Contracts and

Consolidation under the ICC Rules, Presentation made on the ICC Conference “New Trends in

ICC Arbitration and Mediation” held in Nicosia, Cyprus on April 29

, 2014. Source:

(“Paralika-Fessas”).