A Study On Consolidated Arbitration Of The Multi-Party Dispute In International Commercial Arbitration

The last century has witnessed a rapid expansion of international commercial transactions and a constant increase of international commercial disputes. Accordingly, international commercial arbitration, a mechanism for international commercial dispute resolution with high degree of party autonomy, enjoys an increasing popularity in international community. Meanwhile, the system of international commercial arbitration itself gradually grows mature and perfect during the service for economy. However, since 1970-1990, the rush of various new kinds of disputes confronts the traditional theory and practice of international commercial arbitration with a series of challenge. People began to reconsider some theory and systems of this mechanism. Consolidated arbitration of the multi-party dispute is a difficult issue to be worked out in both theory and practice of international commercial arbitration since it affects the realization of the value goals of arbitration, namely equity and economy, and touches the principle of party autonomy and the contractual nature of arbitration. This dissertation focuses on the consolidated arbitration of the multi-party dispute. Relying on prevailing research materials and practical experience worldwide, this study intends to make an in-depth and systematic exploration of consolidation of arbitration through comparative analysis and analytic deduction. The author believes that the multi-party dispute shall be resolved through consolidation by consent and disagrees with compulsory consolidation. Additionally, the present study also pays attention to the constitution of system of consolidation by consent and the essential element and rules of such a system. The author hopes this study may nonetheless contribute to the development of statues and practice of consolidated arbitration of the multi-party dispute in this country. This dissertation comprises four chapters, in addition to a preface and epilogue, totaling over 44,000 words. Chapter 1 deals with how the issue of consolidated arbitration of the multi-party dispute occurs. The multi-party dispute that leads to the sisue of consolidation of arbitration often arises out of the same contract with arbitration clause signed together by multiple parties or multiple contracts each with arbitration clause respectively signed by multiple parties. Whereas the principle of party autonomy and the contractual nature of arbitration, related arbitral procedures based on the aforesaid arbitration clauses have to be proceeded separately, disturbing the economy of arbitral procedures and thorough and fair resolution of the dispute. This confronts the present international commercial arbitration with great challenge. The arbitration practice has developed some means to solve this problem, among which the author considers consolidated arbitration as the most effective one. Chapter 2 focuses on compulsory consolidation of arbitration of the multi-party dispute. After reviewing theories for or against consolidation of arbitration, the author thinks related arbitral procedures for the multi-party dispute should be solved through consolidated arbitration by consent, to which the parties'consensus is the essential element. Such an opinion is based upon the value goals of international commercial arbitration, the principle of party autonomy and the contractual nature of arbitration. Then, this chapter presents a theoretical rebutment of compulsory consolidation form the point of the principle of party autonomy, the value goals of arbitration and the function of court and arbitral institution in international commercial arbitration. It also introduces and analyses the statutes and practice of compulsory consolidation in Netherlands, United States, Hong Kong and New Zealand. Chapter 3 elaborates on consolidated arbitration by consent for the multi-party dispute. It is believed that a system of consolidated arbitration by consent should be constituted through domestic arbitration statutes and arbitral rules of international commercial arbitration institutions for the related arbitral procedures in themulti-party dispute. Such a system takes the parties'consensus as the essential element and the procedural rules for consolidated arbitration as its major content. In the constitution of this system, there are two core issues that should be paid enough attention, namely the flexible understanding of the essential element and the equal treatment of each party in consolidated procedure. This chapter also discusses the application of the system of consolidated arbitration by consent. Chapter 4 concerns the actuality and development of consolidation of arbitration for the multi-party dispute in this country. Consolidated arbitration develops slowly in our country, which can be seen from the arbitral statutes, arbitral rules, judicial practice and arbitral practice. As to the system constitution, it seems difficult for the arranged amendment of the Arbitration Law to include consolidated arbitration by consent, but arbitral rules of the arbitral institutions, foreign arbitral institutions in particular, still can contribute much to the system constitution. At the same time, the arbitral practice and judicial practice should attach enough importance to the trend of the current international commercial arbitration and support the consolidated arbitration by consent.