Where parties to related contracts or sets of transactions have agreed at the outset of those contracts/transactions to arbitrate under different institutional arbitration rules, they can of course agree to vary those agreements and enter into a new agreement when disputes arise, for those disputes to be determined in a single dispute resolution process. On the other hand, arbitration is a creature of contract and a party is entitled to exercise the rights it originally negotiated for and to decline any offer to consolidate proceedings, which election a party might make for many and varied (strategic and important) reasons. There are other obvious challenges to be resolved including the procedures and mechanisms for determining which institution should take the conduct of the consolidated proceedings and thus which rules (and fees) would apply to the arbitration (even more so where more than two institutions are involved). The Proposal suggests a number of alternatives including first, that a joint committee be appointed from members of the Courts or Boards of the concerned arbitral institutions which would be mandated to decide the applications, with a specific committee being appointed for each application, and second, that arbitral institutions could adopt a consolidation protocol providing that one institution would be authorised to determine any cross-institution consolidation application based on its own consolidation rules. The Proposal suggests a number of criteria that might be used to determine the administering institution including: where the number of proceedings to be consolidated is odd, the institution with the larger number of proceedings in the consolidation application can retain administering authority; the institution with a higher aggregate value of disputes will administer the consolidated proceeding; time of commencement; and the institutions could agree on a division of cases based on the type of dispute (corporate,
shipping, construction etc) or the nationality or domicile of the parties. It is at least arguable that the level of engagement required in the administration and exercise of such decision making procedures would simply add another layer of complexity and cost to the arbitration process and cause delay – two of the very evils the Proposal seeks to avert, and which, coupled with the uncertainty and reduced party autonomy that characterise the Proposal, may ultimately militate against its wide adoption. It remains to be seen what level of support/uptake the Proposal achieves. SIAC invited comments on its Proposal by 31 January 2018. At this stage at least, and notwithstanding the fact that limitations on consolidation can cause difficulties for parties to multiple contracts/transactions, the Proposal involves fundamental matters of principle such that neither NZIAC nor NZDRC believe the Proposal is presently a good fit for their innovative administrative procedures and rules.