International Arbitration Vis Moot

Article 10. Consolidation of arbitrations

The Court may, at the request of a party, consolidate two or more arbitrations pending under the Rules into a single arbitration, where:

• a) the parties have agreed to consolidation; or
• b) all of the claims in the arbitrations are made under the same arbitration agreement or agreements; or
• c) the claims in the arbitrations are not made under the same arbitration agreement or agreements, but the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.

In deciding whether to consolidate, the Court may take into account any circumstances it considers to be relevant, including 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 persons have been confirmed or appointed.

When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed by all parties.

Handbook of ICC Arbitration: Commentary and Materials 5th Edition, Article 10 Consolidation of Arbitrations

The 5th Edition provides a helpful analysis of the consolidation provisions available under ICC Article 10, with a focus on the 2021 rules.  

"The 2021 Rules broadened the scope ... by allowing a consolidation of cases even where the claims are based on more than one arbitration agreement. Indeed, as long as the claims in the arbitration are made under the same arbitration agreement, identity of the parties in these arbitrations is no longer required (see art.10(b)). Likewise, the signing of Terms of Reference in one of the arbitrations does, as such, no longer limit the ICC Court's possibility to consolidate the cases."

The authors address situations where more than one arbitration is pending between the same parties, concerning the same or a related subject matter.  "It is commonly accepted that, where disputes are based on a common or closely related set of facts, significant savings of time and money can be achieved in consolidating proceedings."

The new rules appear to support consolidation. "In 2012, the ICC Court considered 10 applications for consolidation on the basis of art.10, seven of which were accepted. In 2020, the ICC considered 25 such applications, of which 17 were accepted." (Information provided by the Secretary General of the ICC Court.)