189 / 521
Convention, the fundamentals of enforcement may be stated as the
agreement of the parties to submit their differences to arbitration, the
scope of the authority of the arbitrators, and the fairness of the conduct
of the arbitration. In the doctrine, it is stated that if another dispute is
consolidated to the first arbitration, this may violate the fundamental
agreement between the two parties to submit their disputes to arbitra-
tion
8
. Consequently, the probable basis for refusal to enforce an award
under the New York Convention may be the absence of an arbitration
agreement between the parties.
To overcome this problem, tribunals and institutions may encour-
age the parties to record their agreement to consolidation, either in the
terms of reference or in some other document, such as the procedural
orders, or other early procedural decisions
9
.
Conclusion
Consolidation of ICC arbitrations is of great importance, consider-
ing the fact that multiparty arbitrations represent 30% of the total case-
load of the ICC
10
. Beyond any doubt, the complex nature of interna-
tional transactions is the major factor in this significant number of
cases. The Rules set firm grounds for the consolidation practice of the
Court, in line with the previous Court practice, and the needs of arbi-
tration practitioners. We hope that the consolidation of arbitrations will
not endanger the enforcement proceedings, and that the precedents of
national courts will develop in an arbitration-friendly direction.
ARBITRATION LAW
173
8
Julian D M Lew
,
Loukas A Mistelis, Stefan M Kröll,
Comparative International Commercial
Arbitration, Kluwer Law International, 2003, p. 408 (“Lew-Mistelis-Kröll”).
9
Lew-Mistelis-Kröll
, p. 409.
10
Paralika-Fessas.