2021 ICC ARBITRATION RULES – WHAT THE REVISED JOINDER AND CONSOLIDATION RULES MEAN FOR CONSTRUCTION DISPUTES18 February 2021 By Bernd Ehle, Sam Moss
What’s new in the 2021 ICC Rules on joinder and consolidation?
The most notable changes in the new 2021 ICC Rules of Arbitration, which are applicable to all ICC arbitrations initiated from 1 January 2021, make it easier to join an additional party to a pending arbitration and to consolidate separate ongoing proceedings.
Under Article 7 in the 2017 ICC Rules, a request for joinder made after the confirmation or appointment of any arbitrator was subject to the unanimous consent of all parties. The new Article 7(5) now gives the arbitral tribunal the discretion to grant a request for joinder even without such unanimous consent, provided that the additional party accepts the constitution of the arbitral tribunal and agrees to the Terms of Reference. In exercising its discretion, the arbitral tribunal must take into account all relevant circumstances, including (i) whether it has prima facie jurisdiction over this new party; (ii) the timing of the request; (iii) possible conflicts of interests; and (iv) the impact of the joinder on the procedure.
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