A descriptive study on Joinder and Consolidation provisions in

Institutional Arbitration

Synopsis submitted in partial fulfillment of the

requirements for the award of the degree of
Bachelor of Laws

(BA/BCom/BBA/BSc/BSW LLB)

SUBMITTED TO:
DR UDAYKUMARA RAMAKRISHNA B.N.
GUJARAT NATIONAL LAW UNIVERSITY

SUBMITTED BY:
ADVYAY GOYAL
18B203

Gujarat National Law University

Attalika Avenue, Knowledge Corridor
Koba, Gandhinagar, Gujarat–382426
2023

Introduction
Arbitration has been recognized as an effective tool for resolving dispute across the globe. It
is a private dispute settlement mechanism wherein the arbitrator is delegated authority by the
private parties to settle disputes between them. It is only within this delegated authority that
the arbitrator can exercise discretion for settling the dispute. However, within his sphere of
delegation, the arbitrator is further bound by the principles of law and policy.

In recent times, multi-party disputes are becoming a widespread practice in international

commercial arbitration owing to complexities in the operation of businesses globally 1. Some
of the most important tools for participation of third parties in arbitration are joinder and
consolidation. The main idea behind joinder and consolidation provisions of either consenting
or non-consenting third parties is to increase the procedural efficacy of the arbitration
procedure and simultaneously avoid the risk of inconsistent decisions in arbitrations in related
matters. However, joinder and consolidation, especially non-consensual joinders and
consolidation, may pose legal challenges on grounds of due process and public efficacy 2.
Therefore, disputes under multiple contracts or involving multiple parties usually can only be
resolved in one single proceeding if there is some form of consent contained in the contract or
statue between the parties.

In theory, such consent can be set out in the concerned contract. However, in practice, such
consent is not often spelled out in the contract. This increases the risk of multiple proceedings
thereby increasing the cost of arbitration and the risk of inconsistency 3. To address the issue
with an aim to enhance the quality of arbitration, global arbitration institutions contain
detailed detailed arbitration rules dealing with arbitrations concerning multiple parties and
multiple contracts.

It is in this background that this paper seeks to study the joinder and consolidation provisions
contained in the rules of renowned international arbitration institutions. Thereafter, this paper
aims at understanding the joinder and consolidation provisions as contained in rules of
renowned international arbitration institutions contained in India and suggest modifications to
them in light of global practices.

Significance of the Study

1
H Eminli, Joinder of non-consenting third party in international commercial arbitration and its legal
implications: Analysis of Institutional Arbitrational Rules and National Arbitration Laws (2021) (LLM Final
Thesis, CEU).
2
S.I. Strong, Third Party Intervention and Joinder as of Right in International Arbitration: An infringement of
Individual Contract Rights or a Proper Equitable Mesaure? 31 VJTL 922 (1998).
3
J Choong, M Mangan, et.al, A Guide to SIAC Arbitration Rules 110- 129 (2d ed, 2018).
Multiplicity is a hurdle in dispensing justice in an efficient manner. Multiple arbitration
proceedings have implications in terms of cost and time as well as complexities regarding
enforcement. In order to avoid such problems, it would be in interest of cost and efficiency,
to resolve all disputes arising out of a single event in a single proceeding4.

However, unlike litigation in state courts, the jurisdiction of an arbitral tribunal to allow for
the joinder or intervention of third parties to an arbitration is limited. The bedrock of
arbitration is consent and therefore consent plays a crucial role in joinder or intervention of
third parties. Such consent may be express, implied, or by reference to a particular set of
arbitration rules agreed to by the parties 5. The same can be said for consolidation of
proceedings.

The joinder or consolidation of third parties may give rise to legal implications related to
absence of consent to arbitrate and public policy. The national judicial authorities can
judicially review joinder or consolidation of proceedings in annulment or recognition
proceedings6. The national judicial authorities analyze whether arbitral tribunal ensured due
process and equal treatment of parties while ordering joining of third parties. The next
paragraphs shed light on some important Court judgements which highlight the importance of
consent and public policy considerations in joinder and consolidation of arbitration
proceedings.

In PT First Media7, the Court of Appeal of Singapore annulled an award wherein the
Singapore International Arbitration Center had ordered joinder of a party against its
objection. The Court in its judgement stressed on the importance of consent, including
consent of original parties, in considering the joinder of third parties in arbitration. The
consent, as noted above in the first paragraph, can be provided in any form such as a specific
institutional arbitration rule. However, such institutional arbitration should have explicit
provisions which provide for forced joinder. In case such provision is present, the joinder of a
non-consenting third party cannot be challenged later.

In Dutco8, the respondents made a joint appointment of arbitrators under protest. The interim
award passed by the tribunal was set aside by the French Court of Cassation owing to the
4
NA Hackman, The problem of arbitration and multi-party/ multi-contract disputes: Is Court ordered
consolidation an adequate response?
5
N Blackaby, C Partasides, et.al, Redfern and Hunter on International Arbitration 91 (6d ed, 2015)
6
Supra n 1.
7
PT First Media TBK v. Astro Nusantara International BV et al, Court of Appeal, Civil Appeal Nos. 150 of
2012, 31 October 2013.
8
Siemens AG and BKMI Industrienlagen GmbH V. Dutco Consortium Construction Co, Cass. Ass. Plen, Jan 7
(1992)
irregularity in the constitution of the tribunal. The Court quashed the argument that parties
agreement to arbitrate under specific rules should be considered as a waiver of their rights.
Therefore, it was held that the right to appoint arbitrators was a matter of public policy which
as such cannot be waived before the constitution of the tribunal. The decision of the Court
had a far-fetched impact in the institutional rules on appointment of arbitrators9.

From the above paragraphs, it becomes clear that the institutional rules on joinder and
consolidation of arbitrations ought to be detailed in order to sustain legal challenges. India
has an aim of becoming a preferred destination in the international arbitration landscape. This
necessitates that the rules of the institutions situated in India are precise, detailed and
convenient to ensure the validity of awards made in arbitrations held under such institutions.
Hence, this study seeks to review the existing rules on joinder and consolidation in some
international arbitration institutions situated in India in light of global best practices with an
aim to strengthen the framework of international arbitration framework in India.

Literature Review

The author of this article went through the following books and articles of renowned authors
in order to better understand the topic.

Redfern and Hunter on International Arbitration sets out the basics in relation to joinder,
consolidation and intervention in international arbitration. The book in chapter 1 titled “An
overview of International Arbitration” discusses the issues around joinder, consolidation and
third party intervention supplying a solid base for further research. Joinder and consolidation
are dealt with individually in the second chapter of the book. The former however has not
been dealt with extensively by the book. On other hand, consolidation has been dealt in detail
setting out instances where consolidation may be necessary, judicial decisions and other
issues arising out of consolidation. Notably, the decisions cited in the book on the topic has
been limited to the United Kingdom.

Having set out the issues in context of joinder and consolidation, the next set of articles
reviewed discuss in detail the different institutional rules pertaining to joinder and
consolidation.

9
Orkun Askeli, Appointment of Arbitrators as specified in the Agreement to Arbitrate, 20 Journal of
International Arbitration 253 (2003).
Gary Born and D Prasad10 in their article titled “Joinder and Consolidation” provide for a
theoretical and practical analysis of joinder and consolidation provisions provided for in the
Bahrain Chamber of Dispute Resolution. The author chose the paper as it provides a detailed
and granular analysis of the provisions thereby enhancing the ability of the reader to
appreciate the provisions. The researchers have also provided for a comparative analysis at
some instances where they felt appropriate to do so. This adds value to the paper. Even if the
chosen institution may not be encountered in practice very often, the repute of the researchers
of the aforementioned article in the field of international commercial arbitration, makes the
study of their paper imperative.

C Boog and J Raneda in ther article titled “The 2016 SIAC Rules: A State of the Art Rules
revision ensuring an even more Efficient Process” present a detailed analysis of the Joinder
and Consolidation provisions as contained in the Singapore International Arbitration Center.
The article not only provides a detailed picture of the relevant rules, it also seeks to delineate
the improvement made by SIAC over previous versions of its rules along with the rationale
for the same. This assists the author in better conceptualization of the relevant rules and
making a detailed analysis of the same11.

Lisa Marie Loss and K Asschenfeldt 12 in their paper titled “Recent Developments of Third
Party Joinder in International Arbitration” analyze the impact of the Singapore High Court
decision on the issue of third party joinder especially in the institutional rules across the
globe. The ingenuity of the Article is in the comparative analysis of global institutional
arbitration rules in their most recent forms. Importantly, the researchers have also laid
threadbare the trends that are emerging in Asia and Europe. However, the article does not
provide for a comparative analysis of provisions regarding consolidation.

The next set of articles assists the author in identifying the legal implications of joinder and
consolidation in various jurisdictions.

Humay Eminli in her thesis on “Joinder of the non-consenting third party in international
commercial arbitration and its legal implications: An analysis of institutional arbitration rules
and national arbitration laws” elaborates on the challenges to an award where a non-
consenting party is joined in the proceedings. The thesis focusses on two areas namely (a)
10
Gary Born and D Prasad, Joinder and Consolidation, BCDR International Arbitration Review 5, no 1 (2018)
53-84
11
Christopher Boog and J Raneda, The 2016 SIAC Rules: A state of the art revision ensuring a more efficient
process, 34(3) ASA Bulletin 584.
12
Lisa M Loss and K Asschenfeldt, “Recent Developments of Third Party Joinder in International Arbitration”,
39(5) Jour of Int Arb 691.
public policy concerns and (b) judicial review. The thesis elaborates on case laws and
provisions and seeks to point out distinction between common law countries and other
jurisdictions. The case laws are however only based on Singapore Law and therefore requires
a wider analysis including study of case laws from the United Kingdom and United States.

O Kazutake in his paper on “Party Autonomy on International Commercial Arbitration:

Consolidation of Multi-party and Classwide Arbitration” provides for a study of case laws
from the United States, United Kingdom and France on the topic of consolidation. The word
consolidation, however as used in the paper, seeks to include both “joinder and
consolidation”. Since the paper is old, a follow up search on the case laws mentioned in the
paper will assist the researcher in forming a clear picture of the judicial landscape in myriad
jurisdictions.

Arjun Gupta et.al13. in their article titled “Blessed unions in Arbitration- An introduction to
joinder and Consolidation in Institutional Arbitration” apart from studying the institutional
frameworks, make detailed study of case laws in common law jurisdiction on joinder of non-
consenting parties. The paper also provides for a hawk-eye view on the approach of the
Indian judiciary on the question. This assists in better evaluation of the rules of Indian
Arbitration Institutions. However, the paper does not study the Indian Arbitration Institutions.
Owing to the practice of the researchers of the paper, the paper gives cutting edge insights
into the functioning of such provisions.

Objectives of the Study

The objective of the study is:

 To conduct a comprehensive literature review of the current state of joinder and

consolidation provisions in institutional arbitration.
 To analyze the various approaches taken by international institutions to joinder and
consolidation provisions in institutional arbitration, including the International Chamber
of Commerce (ICC), the London Court of International Arbitration (LCIA).
 To evaluate the potential challenges that can arise when implementing joinder and
consolidation provisions in institutional arbitration, including issues related to due
process, transparency, procedural fairness, and the enforceability of awards.

13
Arjun Gupta, Sahil Kanuga et.al., Blessed unions in Arbitration- An introduction to joinder and Consolidation
in Institutional Arbitration, 4 Indian J of Arb L 134 (2016).
 To analyze the current joinder and consolidation provisions in institutional arbitration
rules of various institutions based in India, including but not limited to the Indian Council
of Arbitration, the International Chamber of Commerce India, and the Mumbai Centre for
International Arbitration.
 To suggest changes to the joinder and consolidation provisions in institutional arbitration
rules of various institutions based in India, in order to enhance the efficiency, fairness,
and effectiveness of these proceedings.

Hypothesis

Institutional arbitration rules in India can be improved by revising joinder and consolidation
provisions to enhance the efficiency, fairness, and effectiveness of proceedings. This can be
achieved by clarifying the scope of joinder and consolidation provisions, allowing for joinder
and consolidation of multiple parties and disputes and ensuring due process and transparency
in joinder and consolidation proceedings. These specific provisions can help to avoid
confusion and disputes about the scope of joinder and consolidation provisions

For example, the scope of the clause 28 of the DIAC Rules can be expanded to include an
application by the additional party to be joined. The rule 28 of the DIAC Rules provide only
for “consent” as a base for joinder of the party. Therefore, there is scope to include the
“prima facie test” as done in some other institutions such as Singapore International
Arbitration Center. The rule 6 of the DIAC rule on “Consolidation Mechanism” need further
clarity interest of due process and transparency.

MIAC will have to introduce provisions for joinder which are conspicuously absent in the
rules. This is to ensure that parties choosing MIAC for their disputes can save time and costs
by avoiding multiple arbitrations, ensure consistency in the application of the law, ensure due
process and transparency in these proceedings, and make awards in consolidated proceedings
enforceable.

Research Questions

The following questions are sought to be answered in the present study:

(a) What are the reasons for including joinder and consolidation provisions in arbitration
agreements?
(b) What are the legal challenges associated with joinder and consolidation?
(c) What are the common provisions for joinder and consolidation in global arbitration
institutions? What influenced the formation of such rules?
(d) How Indian Arbitration Institutions facilitate joinder and consolidation in their rules?
(e) What changes should be made to the joinder and consolidation provisions in Indian
arbitration institutions to make them more effective and aligned with global best
practices?

Scope and Limitations of the Study

The study will focus on the joinder and consolidation provisions. The study is not aimed to be
a generic study on non-consensual third party intervention in International Arbitration. The
aim of the study is to understand the legal challenges that pertain to non- consensual third
party interventions owing to joinder and consolidation of arbitration proceedings, response of
global institutions to such legal challenges and suggest changes to rules of Indian Arbitration
Institutions with a view to ensure that India provides for a cost effective and efficient
arbitration jurisdiction. The study will only focus on the joinder and consolidation provisions
and other aspects of arbitration such as selection, procedure and enforcement will not be
covered.

The author of this paper has chosen the London Court of International Arbitration (LCIA),
International Chamber of Commerce (ICC), Singapore International Arbitration Center
(SIAC), Bahrain Chamber of Dispute Resolution Center (BCDR) and Hong Kong
International Arbitration Center (HKIAC) for study of global best practices. The institutions
were chosen on basis of their repute, pro-active approach to reformation, availability of
commentaries on their respective provisions for a better understanding and most importantly,
their location. The default seats of these institutions are located in common law jurisdictions
and therefore provide a fertile ground for analysis considering the aim of the study since
India is a common law jurisdictions.

The author studied the rules of the Mumbai International Arbitration Center, Delhi
International Arbitration Center and International Arbitration and Mediation Center,
Hyderabad for the Indian context. The institutions were chosen on basis of their repute and
ease of access to rules.

Research Methodology

The present study is doctrinal in nature. The study will employ historical, descriptive and
analytical approaches. The author has used primary sources mainly rules, case laws and
reports as well as secondary sources such as various books and journal articles in order to
arrive at the conclusion. The author has ruled out the empirical method of research due to its
unsuitability to the present subject topic.
Method of Citation and referencing: Bluebook Citation Style.

Tentative Chapterization

The tentative structure of the paper is as under:

Chapter 1
Introduction
This chapter will discuss the issues arising out of non-consensual third party intervention,
concepts of joinder and consolidation and judicial pronouncements setting the tone for further
analysis. The proposed sub-headings are as under:
(a) What is joinder and consolidation?
(b) Issues and benefits of joinder and consolidation?
(c) Legal challenges owing to joinder and consolidation including study of case laws.

Chapter 2
Joinder and Consolidation provisions in Global Arbitration Institutions
This chapter will study in detail the joinder and consolidation provisions of global arbitration
institutions presented in an analytical and comparative form. The proposed sub-headings are
as under:
(a) London Court of International Arbitration (LCIA)
(b) International Chamber of Commerce (ICC)
(c) Bahrain Chamber of Dispute Resolution Center (BCDR)
(d) Hong Kong International Arbitration Center (HKIAC)
(e) Singapore International Arbitration Center (SIAC)

Chapter 3
Joinder and Consolidation provisions in Indian context
This chapter will study in detail the joinder and consolidation provisions in the Indian
context. The proposed sub-headings are as under:
(a) Indian judiciary on non-consensual third party intervention.
(b) Analysis of rules of Indian institutions .
(c) Comparative and analytical analysis in light of global best practices.

Chapter 4
Conclusion

Bibliography
Primary Sources
Books
1. Gary B. Born, International Commercial Arbitration (2d ed. 2014).
2. N Blackaby, C Partasides, et.al, Redfern and Hunter on International Arbitration 91 (6d
ed, 2015)

Cases
1. PT First Media TBK v. Astro Nusantara International BV et al, Court of Appeal, Civil
Appeal Nos. 150 of 2012, 31 October 2013.
2. Siemens AG and BKMI Industrienlagen GmbH V. Dutco Consortium Construction Co,
Cass. Ass. Plen, Jan 7 (1992)

Secondary Sources
Articles
1. Arjun Gupta, Sahil Kanuga et.al., Blessed unions in Arbitration- An introduction to
joinder and Consolidation in Institutional Arbitration, 4 Indian J of Arb L 134 (2016).
2. Christopher Boog and J Raneda, The 2016 SIAC Rules: A state of the art revision
ensuring a more efficient process, 34(3) ASA Bulletin 584.
3. Gary Born and D Prasad, Joinder and Consolidation, BCDR International Arbitration
Review 5, no 1 (2018) 53-84
4. H Eminli, Joinder of non-consenting third party in international commercial arbitration
and its legal implications: Analysis of Institutional Arbitrational Rules and National
Arbitration Laws (2021) (LLM Final Thesis, CEU).
5. J Choong, M Mangan, et.al, A Guide to SIAC Arbitration Rules 110- 129 (2d ed, 2018).

6. Lisa M Loss and K Asschenfeldt, “Recent Developments of Third Party Joinder in

International Arbitration”, 39(5) Jour of Int Arb 691.
7. NA Hackman, The problem of arbitration and multi-party/ multi-contract disputes: Is
Court ordered consolidation an adequate response?

8. Orkun Askeli, Appointment of Arbitrators as specified in the Agreement to Arbitrate, 20

Journal of International Arbitration 253 (2003).
9. S.I. Strong, Third Party Intervention and Joinder as of Right in International Arbitration:
An infringement of Individual Contract Rights or a Proper Equitable Mesaure? 31 VJTL
922 (1998).