Consolidating Two VIAC Arbitrations Despite Different Contracts

Two VIAC arbitrations may be consolidated in certain circumstances even when they are based on different contracts. The decisive factors are not limited to identical parties or a common commercial background. Article 15 of the Vienna Rules addresses party consent or identical arbitrators, the same place of arbitration, the compatibility of the arbitration agreements and the stage of the proceedings.

The VIAC Board decides a consolidation request after hearing the parties and arbitrators already appointed. Consolidation is therefore not automatic and it is not merely an organisational request to the arbitral tribunal.

This article explains which documents are needed for two pending VIAC arbitrations, why different contracts do not immediately rule out consolidation and which issues may defeat a request or require a reorganisation of the proceedings.

What Consolidation Means at VIAC

Consolidation brings two or more pending arbitrations together for their further conduct as one proceeding. Article 15 of the Vienna Rules treats this as a decision for the VIAC Board. It is more than storing submissions in one administrative file.

A party must request consolidation. The rule provides two alternative routes: the parties agree to consolidation or the same arbitrator or arbitrators were nominated or appointed. The place of arbitration must also be the same.

Consolidation must be distinguished from multi-party arbitration. The multi-party question concerns who is bound by an arbitration agreement. Consolidation concerns several proceedings that already exist and whether they can continue together.

Why Different Contracts Do Not Automatically Preclude Consolidation

Article 15 does not require both proceedings to arise from one contract. It expressly identifies compatibility of the arbitration agreements as a circumstance for the Board to consider. Different contracts are therefore a point of analysis rather than an automatic bar.

Compatibility does not mean that both clauses must use identical wording. The relevant questions include whether both proceedings use the same institutional framework, whether the place of arbitration is the same and whether the proceedings can be conducted together without conflicting jurisdictional assumptions.

Section 581 ZPO defines an arbitration agreement as an agreement submitting specified disputes arising from a contractual or non-contractual legal relationship to arbitration. The request should therefore show separately which disputes each contract covers and how the claim fits that agreement. A common commercial project is not a substitute for that analysis.

The topic page on reviewing an arbitration clause provides the starting point. In two-contract cases also compare the place of arbitration, procedural language, number of arbitrators and any additional procedural agreement.

Requirements under Article 15 of the Vienna Rules

First, a party must make the request. Second, the parties must either agree to consolidation or the same arbitrator or tribunal must have been nominated or appointed. Third, the place of arbitration must be identical in both proceedings.

Party consent is the clearest route. It should refer to both proceedings and show that the parties understand the effects on submissions, evidence, hearings, costs and the procedural timetable. With different contracts, a general reference to a group dispute is not enough.

If there is no joint consent, the identity of the nominated or appointed arbitrators may provide the second route. Even then, identical arbitrators do not guarantee consolidation. The Board still decides after considering all relevant circumstances.

The same place of arbitration is a separate requirement. The place of arbitration is not the same as the location of the parties or the venue of a hearing. The contractual or procedural designation is decisive.

How the VIAC Board Decides the Request

The Board hears the parties and arbitrators already appointed. This gives the participants an opportunity to address the clauses, jurisdiction, procedural stage, evidence and practical effects. A request should therefore support these points with the relevant documents rather than relying on a general statement of efficiency.

Article 15 identifies compatibility of the arbitration agreements and the respective stage of the proceedings as relevant circumstances. A proceeding close to an evidentiary hearing may be treated differently from a second proceeding that is still at an early pleading stage.

The Board may also consider whether the combined procedure gives every party a fair opportunity to present its case. Section 594 paragraph 2 ZPO requires fair treatment and a hearing for each party. A consolidation that creates procedural disadvantage without suitable adjustments may therefore be unsuitable.

The topic page on preparing arbitration proceedings helps structure the broader case. A consolidation request remains a separate procedural decision with its own reasons.

Assess the Effects on Evidence and Arbitrators

Consolidation may simplify the evidence if the same contract documents, people or technical events matter in both proceedings. It may also create new allocation questions. Each item of evidence should therefore be mapped to the relevant contract, claim and proceeding.

Section 599 ZPO allows the arbitral tribunal to decide on and conduct evidence. The parties must receive timely notice of hearings and meetings for taking evidence. After consolidation, the joint timetable must preserve these safeguards for all participants.

Different contracts may involve different confidentiality obligations, trade secrets or evidence offers. A joint hearing should not expose documents from one contractual relationship to another context without an appropriate procedural basis.

The composition of the tribunal also requires review. If proceedings with different arbitrators are to be consolidated, the request should address appointment, independence, availability and the consequences for further case management.

Preparing the Request and Supporting Documents

For each proceeding collect the request for arbitration, answer, arbitration agreement, underlying contract and all amendments. Also record the VIAC reference, place of arbitration, procedural language, number of arbitrators and appointment dates.

A short comparison table helps prepare the request. It should show the parties, claims, contract basis, arbitration clause, place of arbitration, arbitrators, procedural stage and requested common measure for each proceeding. The table does not replace legal reasoning but helps prevent gaps.

The reasons should explain the concrete benefit of consolidation. This may be a common evidentiary hearing, avoiding inconsistent decisions or dealing with closely related contractual questions together. Potential disadvantages for parties, confidentiality and procedural deadlines should be addressed as well.

The article on preparing a VIAC request for arbitration explains the individual request. Consolidation requires additional documents and reasons from the other proceeding.

Avoid Common Consolidation Mistakes

A frequent mistake is treating contracts connected to one project as automatically compatible arbitration agreements. Two contracts may concern the same project while using different places of arbitration or procedural arrangements.

A request that only refers to administrative efficiency is also insufficient. The Board hears the parties and arbitrators already appointed, so the request should set out clauses, procedural stages, evidence and practical effects in a concrete manner.

It is not enough to assume that consolidation resolves jurisdictional issues. Section 592 ZPO gives the arbitral tribunal power to decide its own jurisdiction. The scope of each arbitration agreement must therefore remain under review.

Finally, timing matters. If one proceeding has an imminent filing or evidentiary hearing, the request should address the effect on the timetable expressly.

Next Steps in the Specific Case

Start by securing the complete records of both VIAC arbitrations. Then compare the arbitration agreements in the different contracts word for word. Pay particular attention to place of arbitration, institutional reference, language, number of arbitrators and the disputes covered.

Next document the procedural stage. Include procedural orders, submissions, evidence requests, hearings and open deadlines. Only then can the legal and practical viability of common conduct be assessed.

For the legal review, contracts and VIAC correspondence should be accompanied by a short chronology and the specific purpose of consolidation. The aim may be to avoid inconsistent decisions or to conduct evidence together.

The existing article on multi-party arbitration addresses a different question. It concerns the parties bound by a clause. This article concerns the consolidation of proceedings that are already pending.

Frequently Asked Questions about VIAC Consolidation

Can two VIAC arbitrations based on different contracts be consolidated?

Yes. Different contracts do not automatically prevent consolidation. Under Article 15 of the Vienna Rules, the Board considers compatibility of the arbitration agreements, the place of arbitration and the stage of the proceedings among other circumstances.

Who decides whether two VIAC arbitrations are consolidated?

The VIAC Board decides the request. The parties and arbitrators already appointed are heard before the decision.

Is a common project enough to justify consolidation?

No. A common project may explain the connection. The requirements of Article 15 must still be examined, including the arbitration agreements, the procedural stage and fair treatment of the parties.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.