Authors: Peter C. Thomas* and Edmund C. Burns**
Published: December 1993
Judicial Consolidation of Arbitral Proceedings
Description: The United States Court of Appeals for the Second Circuit decided last year in Government of the United Kingdom of Great Britain v. Boeing Co. that U.S. courts do not, after all, have the power to consolidate arbitrations in the absence of the parties’ agreement. Although not unexpected, the ruling reversed almost twenty years of jurisprudence within the Second Circuit. The court appeared to embrace the principle of party autonomy and the language of Section 4 of the Federal Arbitration Act (or “FAA”), and to move closer to the prevailing international view on consolidation. However, the Boeing opinion left new issues in its wake just as it resolved old ones. One commentator has criticized the Boeing decision for unwisely rejecting compulsory consolidation. Others have observed that the opinion should still permit U.S. courts to order consolidation of arbitrations based upon the parties’ “implied consent” to joinder.
*J.D., University of California, Los Angeles, 1984. Member of the firm of Simpson Thacher & Barlett, New York City.
**J.D., Yale Law School, 1990. Mr. Burns is associate counsel with the Office of the Commissioner of Baseball. He co-authored this article while employed as an associate attorney with Simpson Thacher & Bartlett.