Arbitration has become one of the most preferred dispute resolution mechanisms as an alternative to domestic litigation proceedings. Being an alternative, it is at the parties’ discretion, in other words, their creation of a contract, to choose arbitration over the national courts. Parties may prefer arbitration for its fast proceedings, confidentiality or due to its other qualifications.
Despite usually being a contractual relationship between two parties, the growth of commercial, technological, and financial activities has brought the involvement of multiple parties to the forefront. Accordingly, the participation of a third party, either by joinder or consolidation, has raised questions, particularly when one of the parties has not foreseen an additional party to be joined in their dispute and does not consent to such procedures.
These procedural mechanisms, also present in national litigation proceedings, serve the same purposes when applied in arbitration. In domestic litigation procedures, since the principle of party autonomy does not apply to the same extent, judges do not face issues such as obtaining the parties’ consent, breaches of confidentiality, or ensuring equal participation in the constitution of the decision-making body. Additionally, in domestic litigation, enforcement is generally not a concern that could make the entire litigation process futile. However, considering the advantages of preventing inconsistent awards and ensuring the proceedings’ effectiveness and fairness, the joinder and consolidation mechanisms seem indispensable.
Consequently, by taking into account the parties’ real intent during the drafting stage of their contracts and their expectations from arbitration, several criteria and indicators have been developed over time regarding the detection of the consent of the parties, whether explicit or implicit. These include the claims being dependent on the same arbitration agreement, arising from a single transaction or series of transactions, and the compatibility of the arbitration agreements.
In this context, this thesis is structured to determine the circumstances under which joinder and consolidation procedures can be practiced and the legal reasons for overcoming arbitration specific challenges. While presenting these, the methodology is based on the developments of the arbitration rules of various arbitral institutions, including the 2020 Rules of the London Court of International Arbitration, the 2024 Rules of the Hong Kong International Arbitration Centre, the 2016 Rules of the Singapore International Arbitration Centre, the 2021 Rules of the International Chamber of Commerce, the 2023 Rules of Stockholm Chamber of Commerce and 2015 Rules of Istanbul Arbitration Centre, relevant decisions and scientific works of pioneers in arbitration studies. Considering the advantages of these procedural mechanisms, their practice in real life, and the tendency to regulate them as specific provisions, it is evident that practicing such procedural mechanisms is essential and a part of the principles of judicial economy. It should not be forgotten that arbitral tribunals also conduct extra-judicial proceedings, where party autonomy is not limitless, and to keep arbitration as an efficient dispute resolution mechanism that meets the expectations of parties in complex situations, these procedures must be performed, at least in cases where implied consent is determined by the relevant authority, either by an arbitral tribunal or an institutional body. As a principle of judicial economy, which is one of the common principles of law, it can be accepted that these procedures can be practiced even in cases where the chosen arbitral rules do not contain such provisions; however, the application of such common principles of law could be a topic for further study, exploring the inherent powers of arbitral tribunals in international arbitration. Thus, this thesis aims to provide a comprehensive analysis of these mechanisms and their practical applications, offering insights into how they can enhance the effectiveness of arbitration in complex, multi-party disputes.