Absence of Consent Trumps Arbitral Economy: Consolidation of Arbitrations Under U.S. Law – Vol. 12 No. 3-4

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Authors: Rona G. Shamoon* and Irene M. TenCate**

Published: October 2003

United States
Court Decisions
Judicial Consolidation of Arbitral Proceedings
Multiple Parties

Description: This article examines the extent to which courts and arbitral tribunals may order consolidation of related arbitrations under federal and state laws in the United States without the consent of all parties involved.

Based on an analysis of recent case law, the authors conclude that U.S. courts are unlikely to compel consolidation, unless they find a basis for such in an agreement between the parties (pre-dispute—express or implied—or postdispute), governing law, or the applicable arbitration rules. The law remains unsettled, however, with regard to the power of a court to order consolidation in the face of a party’s objection, even where there is a statutory basis for consolidation. Parties can reduce uncertainty if they address consolidation issues when they enter into an arbitration agreement; the authors will address how parties can deal with consolidation issues at the drafting stage.

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*Rona G. Shamoon is a senior litigation associate at Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden, Arps”) and a member of the International Arbitration Group.
**Irene M. TenCate is a student at the Columbia University School of Law and was a summer associate at Skadden, Arps.