Revue - Les Cahiers de l'Arbitrage N°1-2023 - 15

DOCTRINES - DÉBATS
Multiparty claims
The stated need for reform of the Arbitration Rules to address multiparty claims
can be addressed summarily. As Working Paper 1 recognised, multiparty claims are
a common feature of ICSID arbitrations. 8
Approximately " 40% of all ICSID cases
have involved multiple claimants " and " the great majority of cases have involved no
more than two or three claimants and have not posed difficulties from a procedural
or case management perspective. " 9
attention from stakeholders. 10
Unsurprisingly, multiparty claims received little
The ICSID Secretariat proposed a minor clarification to
the Arbitration Rules, noting in the definition of 'party' that it includes all claimants
and respondents. This is reflected in Rule 2(1) of the 2022 Rules: " For the purposes
of these Rules, 'party' includes all parties acting as claimant or as respondent. " 11
The express reference to " all parties " accommodates multiparty claims.
Consolidation
In contrast to the relatively simple topic of multiparty claims, the rationale and
policy considerations for introducing a consolidation provision to the Arbitration
Rules warrant more attention. Despite the absence of a consolidation provision in
previous iterations of the Arbitration Rules, the ICSID Secretariat and Tribunals have
successfully encouraged case consolidation and coordination. Therefore, it was not
thought strictly necessary to include a consolidation provision in the Arbitration
Rules. However, several States and practitioners suggested that its inclusion
would enhance clarity and essentially codify existing practice. 12
Additionally,
consolidation provisions have become a common feature of the arbitration rules of
the principal institutions. The reform process provided the ICSID Secretariat with an
opportunity to bring the Arbitration Rules on par with the rules of its competitors. 13
Before advancing the discussion, it is important to have certainty of terms.
- Consolidation is the joinder of separate proceedings that share common
questions of fact or law in the underlying dispute. 14
cases after two (or more) individual cases have been initiated. " 15
It is the " merger of related
The effect of
8. In accordance with Article 36(3) of the ICSID Convention, the Secretary-General's practice
has been to register multiparty claims so long as they are submitted in a single request for arbitration.
9. Working Paper 1, Schedule 7, ¶ 8.
10. Working Paper 1, Schedule 7, ¶¶ 18-19.
11. 2022 ICSID Arbitration Rules, Rule 2.
12. Working Paper 1, Schedule 7, ¶ 41; see S. Y. Koh and A. Yeo in: Happ/Wilske, ICSID Rules
and Regulations 2022, 2022, Rule 46, ¶ 9.
13. There was a general perception among practitioners that, on the issue of consolidation,
the Arbitration Rules were outdated in comparison to other institutions. See 2013 Arbitration Rules
of the Hong Kong International Arbitration Centre Arbitration, Art. 28; 2014 Arbitration Rules of
the London Court of International Arbitration, Arts. 22.1(x), 22.6, and 22(x); 2014 Arbitration Rules
of the International Centre for Dispute Resolution, Art. 8; 2015 Arbitration Rules of the China
International Economic and Trade Arbitration Commission, Art. 19; 2016 Arbitration Rules of
the Singapore International Arbitration Court, Rule 8; 2017 Arbitration Rules of the International
Chamber of Commerce, Art. 10; 2017 Arbitration Rules of the Arbitration Institute of the Stockholm
Chamber of Commerce, Art. 15.
14. C. Schreuer, The ICSID Convention, 2009, Art. 26, ¶ 124.
15. M. Kinnear and C. Mavromati, " Chapter 15: Consolidation of Cases at ICSID " in Jurisdiction,
Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles, p. 245.
Les Cahiers de l'Arbitrage 2023‑1
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Revue - Les Cahiers de l'Arbitrage N°1-2023

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