United States: Consolidation Of Arbitrations Is A Procedural Matter Presumptively For The Arbitrator To Decide In Accordance With The Parties' Agreement

Last Updated: January 8 2019
Article by Gilbert Samberg

Since arbitration is a process of dispute resolution in accordance with a private agreement, the question of consolidation of arbitral proceedings ought to be determined in the same manner as other procedural issues. In short, no agreement to permit consolidation, no consolidation. The potential benefits of consolidation, in terms of efficiency and convenience, ought ultimately to be irrelevant to the adjudication of whether consolidation is permitted. (Besides, the notion of such "consolidation" always implies the expectation of greater efficiency.) Furthermore, consolidation is not a threshold "arbitrability" issue; rather, it concerns only where and before whom an agreed arbitration will be conducted. Thus, consolidation is a procedural issue that is presumptively for an arbitrator, not a court, to decide.

In Employers' Ins. Co. of Wausau v. The Hartford, 2:18-cv-07240, 2018 U.S. Dist. LEXIS 205345 (C.D. Cal. Dec. 3, 2018), the court considered cross-petitions to compel arbitration where the parties had vastly different notions of the "arbitration" that each sought to compel. Hartford (and three of its affiliates -- First State, Twin Cities Fire, and New England Reinsurance) and Wausau were counter-parties to 19 reinsurance treaties arising out of eight reinsurance programs. The Hartford parties had reinsurance claims against Wausau under each of the treaties, and it was not disputed that those claims were subject to arbitration "pursuant to the valid arbitration clauses in each of the reinsurance contracts." Id. at *9-*10.

There were thus disparate parties to many contracts, each with its own provisions for arbitration, venue, and other relevant aspects of dispute resolution. Id. at *4. (For example, the arbitration clauses in Wausau's agreements with Hartford were not identical to the arbitration clauses in Wausau's agreements with First State or New England Reinsurance. Id. at *12.) And all 19 reinsurance contracts were silent with regard to consolidation of arbitral proceedings. Id. at *8.

The matter that was directly before the Federal Court in the Central District of California concerned the terms of two reinsurance contracts comprising reinsurance Treaty 2718. In that context, Wausau sought an order compelling the parties to appoint a third arbitrator -- an "umpire" -- to a three-arbitrator panel that would arbitrate Hartford's claim(s) under Treaty 2718 in accordance with that treaty's arbitration clause. Hartford, on the other hand, sought a broad consolidation of arbitral proceedings, and thus requested an order to compel Wausau to appoint an umpire for a three-member panel that would "decide whether a consolidated proceeding is appropriate." Hartford's goal was that that single panel would eventually arbitrate all disputes between Hartford (and its affiliates) and Wausau under all of the 19 reinsurance treaties in question.

Thus, Hartford (and its affiliates) sought to consolidate the arbitrations of all of their reinsurance claims under the disparate agreements before a single arbitration panel in one place. Wausau's counter-proposal was to create arbitral proceedings in three venues -- one with Hartford and Twin City, a second with First State, and a third with New England Reinsurance, in accordance with the venue provisions of the various agreements -- which would in effect have established a program of three arbitrations to resolve all of the claims. The parties evidently could not reach agreement on an ad hoc consolidation scheme in any form. Hartford therefore proposed to select an arbitration panel that would decide whether and how the various arbitration matters should be consolidated. See, id. at *4, *6. Wausau opposed that.

First, the court determined -- in accordance with Ninth Circuit precedent and consistent with similar holdings in the First, Third, and Seventh Circuits -- that the issue of whether to consolidate arbitrations was a procedural matter for the arbitrator, rather than the court, to decide. Id. at *9. It was not an arbitrability question at all.

The court then had to address Hartford's refusal to proceed with the selection of an umpire in accordance with the terms of the arbitration clause in Treaty 2718 -- that is, there was no arbitral panel to which the court could immediately refer the consolidation issue. Id. at *9-*10. Wausau requested that the court enforce the terms of the arbitration clause in Treaty 2718, which was the only one before this court, and the court recognized that it had the power to compel the parties to proceed to arbitration in accordance with the terms of their agreement, 9 U.S.C § 4.

The court declined to grant Hartford's request to in effect "fashion a new procedure in contravention of the terms of the [extant] agreements." Id at *12. Hence, the court denied Hartford's application to order Wausau to select its party-appointed arbitrator and to proceed with umpire selection in order to form a single arbitration panel to adjudicate all of the outstanding claims by Hartford and its affiliates under 19 insurance treaties. Id. *13.

Rather, the court looked to the arbitration agreement in Treaty 2718 and granted Wausau's petition to compel the completion of the appointment of the arbitral panel that would operate under that agreement. And the court noted that that panel could consider requests to consolidate. Id. at *13-*14.

In all, the case did not seem difficult to decide, as the court was fundamentally called upon to reaffirm the primacy of arbitration agreements under the FAA.

Ultimately, in the absence of an agreement regarding the mode of arbitration of similar disputes under related or similar agreements, the potential efficiencies and conveniences of consolidation were beyond the consideration of the court in connection with applications to compel arbitration, and their weight in the eventual consideration by the proper adjudicator -- i.e., the arbitrator -- is likely indeterminate.

Parties may agree -- expressly or by incorporation by reference of pertinent arbitration rules of an administering entity -- to procedures for determining questions of consolidation of arbitral proceedings. Many administrative entities provide such procedures, see, e.g., ICC Arbitration Rules 6, 9, 10; Hong Kong International Arbitration Centre Administered Arbitration Rules arts. 27-30, which generally govern the arbitrator's decision-making concerning party (and occasionally non-party) applications for consolidation.

A word to the wise, therefore. It pays to consider the overall transactional relationship with one's counterparties before entering into a contract. Parties are perfectly capable of fashioning arbitral consolidation procedures as part of a more efficient scheme of dispute resolution if they anticipate the possibility of a multiplicity of claims and issues arising under different agreements among the same counter-parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions