Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Where parties find themselves embroiled in a dispute or closely related disputes involving multiple arbitrations, it can sometimes be desirable to consolidate the separate arbitrations into one arbitration.
  2. As a general rule (and, again, consistent with the notion that arbitration is a matter of contract and consensus), consolidation requires the consent of the parties involved.
  3. The advantages of consolidation may be fairly obvious. Under the right circumstances, consolidation can:
    1. Save valuable resources (e.g., time, money) by creating efficiencies that affect both the overall costs (e.g., administrative and arbitrator fees and expenses) and the parties’ respective fees and costs;
    2. Focus the parties’ larger strategies and objectives; and
    3. More easily rationalize, or even increase the likelihood of, settlement.
  4. Often, however, consolidation can create significant complexities. For example:
    1. Consolidation can often involve bringing otherwise unrelated (third) parties into a dispute. As a result, consolidation can threaten much-valued confidentiality;
    2. Given the business and legal complexities that often attend to even a single arbitration, consolidation can be difficult to accomplish well;
    3. Consolidation can have the effect of radically altering the dynamics between the parties. This may be viewed as either a positive or negative result, depending upon the particular circumstances surrounding the dispute(s);
    4. Although consolidation can have the overall effect of speeding up the process, effectuating a consolidation can itself take some time;
    5. There is some question whether a consolidation decision constitutes a “final” order under the New York Convention; and
    6. Consolidation can sometimes involves going back to “square one” with respect to the parties involved.

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