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Mme Kiran Gore

Maître de conférences en droit - The George Washington University Law School

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Joinder

I. Definition

1.

Joinder (or “intervention”) allows a third-party to join an existing arbitral proceeding as claimant or as respondent, either at the request of an existing claimant1 or respondent,2 or by its own request.3 

2.

Joinder aims to enhance procedural efficiency by ensuring that all necessary parties to a dispute are present in the same proceeding. As such, it seeks to alleviate the time, costs, and other inefficiencies of multiple and/or parallel proceedings, among which may be the risk of inconsistent awards resulting from multiple proceedings.4 While this tool is commonly used in international commercial arbitration, and it is useful to compare and contrast its use in the commercial context, it is still quite rarely applied in the investment arbitration context.5

3.

Although a multi-party proceeding can be the result of an ex post joinder or consolidation,6 all three concepts are distinct. Multi-party proceedings (Mass Claims) involve several claimants and/or respondents with separate but related claims, which are presented to an arbitral tribunal collectively from the beginning of the proceedings and do not require additional consent, beyond that originally given to resolve disputes under the treaty through arbitration.7 On the other hand, consolidation refers to the combination of multiple arbitral proceedings that were originally initiated separately.8

II. Consent as a prerequisite

4.

Any request for joinder must be substantially supported by evidence of the original parties’ consent to such treatment.9 Consent can be manifested in different ways. The parties might have specifically set the rules for joinder in the arbitration agreement, through their choice of law or procedural rules, during the dispute, or even through subsequent behavior to the conclusion of their arbitration agreement.10 The third party should also manifest its consent to join the case11 and should not already be involved in parallel proceedings.12

A. Joinder in the ICSID system

5.

There is no mechanism for joinder of third parties in the ICSID system.13 However, similar to the analysis applied to determine whether consolidation of proceedings may be appropriate, article 44 of the ICSID Convention may be relied upon to join third parties to the arbitral proceeding, assuming the requisite consent exists as this rule does not give “unlimited discretionary powers” to the arbitral tribunal.14 Thus, its application is restrictive and does not give the arbitral tribunal the power to extend its jurisdiction ratione personae in favor of a joinder request in the absence of the requisite consent of all parties concerned.15 

B. Joinder under the UNCITRAL rules

6.

The 1976 UNCITRAL Rules do not contain a specific provision on joinder. Although article 20 provides for the possibility of parties to amend their statement of claim or defense within the limits of the arbitration agreement, an arbitral tribunal has previously refused to grant joinder on this basis.16

7.

The 2010 UNCITRAL Rules include an explicit provision allowing for joinder of “one or more third persons” provided that “the arbitral tribunal finds, after giving all parties including the person or persons to be joined the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties.17 In the presence of this provision, an arbitral tribunal limited the scope of application of article 22 (formerly article 20 under the 1976 UNCITRAL Rules).18 Further, the arbitral tribunal has discretion to render a single award or several awards covering the parties involved in the arbitration. 

C. Joinder under ICC arbitration rules

8.

Joinder is often requested under the ICC rules,19 but rarely in investor-State disputes.20 Article 7 of the ICC Arbitration Rules (2017 and 2021) provides for joinder and such treatment will only be granted if certain conditions are met.21 Economy of procedure is not an enough criterion to grant joinder.22 Consent of the third party as well as the respect of any conditions numbered in the ICC rules or the arbitration agreement should be considered before granting such a request for joinder.23

D. Joinder under SCC arbitration rules

9.

Article 13 of the SCC Arbitration Rules (2017) provides for the possibility to join third parties to an arbitral proceeding. The request should be made before the constitution of the arbitral tribunal unless the SCC board decides otherwise.24 The rule explicitly provides for parties’ consultation only in the presence of multiple arbitration agreements.25 The only other condition needed is that the third party should be bound by the arbitration agreement and the SCC should not manifestly lack jurisdiction.26

III. Consequences

A. Cases when joinder was requested and granted

10.

If joinder is granted, in order to avoid annulment of an award under the Dutco principle,27 some believe the third party joining the case after the formation of the arbitral tribunal can be considered as having waived its right to an equal participation to the appointment of arbitrators.28

11.

Arbitral tribunals can still treat claims and provide relief to parties, if necessary, individually and according to their own applicable law, by considering the facts and evidence supporting those specified arguments.29 

B. Cases when joinder was not requested

12.

A party that had not exercised its right to join an existing arbitral proceeding does not relinquish its right to bring separate proceedings. Where a respondent asserted that a claim should be precluded because the claimant had the opportunity to present its claims by joining a previous proceeding, the arbitral tribunal rejected this argument.30 

IV. Pragmatic tools used in lieu of formal joinder

13.

Where the applicable arbitral rules and investment treaties do not provide any mechanism for joinder, efficiency, or avoidance of inconsistency, parties and arbitral tribunals may pursue pragmatic approaches to achieve these same goals.31 For example, parties may wish to appoint the same arbitrators to hear similar or related cases in parallel and related proceedings.32 However, the issue of consent remains an important consideration for the arbitral tribunal’s approach, inclusive of any coordination with parallel arbitrations concerning similar disputes.33

14.

On the other hand, a party wishing to avoid joinder may simply influence the timing of the proceedings so that they are not compatible, as use of these mechanisms presumes that the proceedings to be joined are at similar and comparable stages, whereby joining is practically and logically feasible.34

Bibliography

Schreuer, C.H., The ICSID Convention - A Commentary, Cambridge University Press, 2001.

Yannaca-Small, K., Part III Procedural Issues, Chapter 25 - Parallel Proceedings, Muchlinski, P., Ortino, F., Schreuer, C.H. (eds.), The Oxford Handbook of International Investment Law, Oxford University Press, 2008.

Wehland, H., The Coordination of Multiple Proceedings in Investment Treaty Arbitration, Oxford University Press, 2013.

Sabahi, B. and Rubins, N., Chapter VII - Special Procedures: Applications and Motions, in Sabahi, B., Rubins, N., and Wallace, D., Investor-State Arbitration, 2nd ed., Oxford University Press, 2019.

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