Arbitration and the expanding circle of consenting parties: joinder of additional parties and consolidation of related claims
The basic proposition is that arbitral tribunals cannot require joinder of additional parties or consolidation of related arbitration references, unless all parties consent. Arbitration rests on consent between the parties and the need for consent embraces any decision to involve a person in the arbitral process or to connect related or parallel arbitration proceedings. Consent must be real and free. The voluntary principle of arbitration is fundamental. Enforcement of an award against a non-party will fail, under either the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or a national system for enforcing domestic awards. Although objections to such awards might be made by either represented persons or the defeated respondent, such a jurisdictional objection would appear to be unsound. There will have been no breach of the consensual principle: each type of objector will in fact not have been taken by surprise and will have consented in writing to this type of process.