Consolidation and Coordination – Additional Facility Arbitration (2022 Rules)
Parties to two or more pending arbitrations administered by ICSID may agree to consolidate or coordinate these arbitrations (Additional Facility Arbitration Rule 56).
Consolidation joins all aspects of two or more arbitrations, resulting in a single Award (Additional Facility Arbitration Rule 56(2)). This would typically involve joining one proceeding into another and discontinuing the former proceeding. It allows the cases to be addressed by a single Tribunal in one proceeding, with one set of arbitrator fees and one ICSID administrative fee. Parties can thereby save on costs that would be incurred if the like cases proceeded separately.
To be consolidated under the Additional Facility Arbitration Rules, the arbitrations must have been registered in accordance with the Additional Facility Arbitration Rules and should involve the same State or REIO (or constituent subdivision of a State or agency of the State or the REIO).
Coordination is any form of case alignment short of consolidation, which would allow the parties to benefit from synergies in presentation of closely related proceedings (Additional Facility Arbitration Rule 56(3)). This may include, for example, appointing the same arbitrators to hear otherwise separate proceedings, organizing joint hearings, or even simpler things such as ensuring that two or more Awards are rendered simultaneously.
The arbitrations themselves remain separate proceedings and result in separate Awards.
Because coordination aligns only specific aspects of two or more arbitrations, parties may coordinate proceedings even where they are subject to different arbitration rules (e.g., a related ICSID Additional Facility arbitration and an ICSID arbitration, or an ICSID Additional Facility arbitration and a related UNCITRAL arbitration).
Parties seeking to consolidate or coordinate proceedings must jointly provide the Secretary-General with proposed terms of reference. The Secretary-General will consult with the parties to ensure that the proposed terms are capable of being implemented (Additional Facility Arbitration Rule 56(4)).
After the consultations, the Secretary-General communicates the proposed terms agreed by the parties to the Tribunals constituted in the arbitrations sought to be consolidated or coordinated. The Tribunals make the necessary order or decision to implement these terms (Additional Facility Arbitration Rule 56(5)).
Depending on the circumstances, the orders may require discontinuing one or more proceedings; setting a common procedural schedule; organizing a joint hearing, or the like.
Some treaties address consolidation (see e.g., Article 1126 of NAFTA). Additional Facility Arbitration Rule 56 does not replace or supersede such provisions and plays a complementary role to any treaty-specific rules.