Answer ... Separate arbitrations can be consolidated into a single arbitration proceeding, with the consent of the parties. Where the parties consent to consolidation, but cannot agree as to the choice of procedure or choice of arbitrators, the court has the power to order these specifics without explicit consent from the parties. Essentially, if the parties agree to the concept of consolidation, this gives the court broad power to order on the specifics of consolidation (SI Strong, “Intervention and Joinder as of Right in International Arbitration: An Infringement of Individual Contract Rights or Proper Equitable Measure” (1998), 31 Van J Transnat'l L 915 at p946). Despite this, the requirement for consent to the concept of consolidation may be changing in instances where the statute can be read broadly enough to permit otherwise.
In the international context, this issue of consolidation is not addressed in the UNCITRAL Model Law; however, all provincial international commercial arbitration legislation permits a court to order consolidation of arbitral proceedings on application by the parties. Whether consent is required for such an order varies by province. The legislation in Ontario (International Commercial Arbitration Act, RSO 1990, c 1.9, s 8(1)) and British Columbia (International Commercial Arbitration Act, RSBC 1996, c 233, s 27.01) requires all parties to agree to the consolidation of proceedings; whereas the Alberta International Commercial Arbitration Act (International Commercial Arbitration Act, RSA 2000, c I-5, s 8(1)) is silent on consent and the Alberta Court of Queen’s Bench has found that it has jurisdiction to hear an application for consolidation that is brought without the consent of both parties (Priscapian Development Corp v BG International Ltd, 2016 CarswellAlta 2297, 2016 ABQB 611).
Domestic arbitration legislation in the majority of provinces provides that upon the application of all parties to more than one arbitration, the court may order, on terms that it considers just, that:
- the arbitrations be consolidated;
- the arbitrations be conducted simultaneously or consecutively; or
- any of the arbitrations be stayed until any of the others are completed.
The British Columbia legislation (International Commercial Arbitration Act, RSBC 1996, c 233, s 21) further provides that disputes that have arisen under two or more arbitration agreements may be heard in one arbitration if the disputes are similar and all parties to those agreements agree on the appointment of the arbitrator and the steps to be taken to consolidate the disputes into one arbitration.
Answer ... The international commercial arbitration legislation in Canada does not address joinder of additional parties to an arbitration which has already commenced. However, the UNCITRAL Model Law does provide that if the continuation of an arbitration becomes impossible, the proceedings shall be terminated (UNCITRAL Model Law, Article 32(2)). In light of this, some have argued that this provision may be effective in “persuading recalcitrant parties to consent to joinder of intervention by a third party, if the arbitrators take the position that it would be impossible to proceed fairly without the participation of a third party. The existing parties would then have the choice of allowing the third party to join the arbitration or having the arbitration terminated and the dispute litigated” (SI Strong, “Intervention and Joinder as of Right in International Arbitration: An Infringement of Individual Contract Rights or Proper Equitable Measure” (1998), 31 Van J Transnat'l L 915 at p976 and p992). The issue of joinder may already be dealt with in the arbitration clause itself, including through institutional procedural rules (For example, Article 7 of the Rules of Arbitration of the International Chamber of Commerce).
Answer ... In general, arbitration agreements do not create rights or obligations for non-signing third parties. Arbitration agreements can be binding on third parties only in specific circumstances, such as the following:
- The clause is incorporated by reference into a contract of the third party;
There is an agency relationship between a party and a non-signing third party;
- The corporate relationship between a corporate parent and subsidiary is sufficiently close as to justify piercing the corporate veil; or
- A non-party is bound by an estoppel (DNM Systems Ltd v Lock-Block Canada Ltd, 2015 CarswellBC 3179, 2015 BCSC 2014 at para 77).