When the original case between the objective and the third party is brought before the courts, the applicable codes of civil procedure determine whether the buyer, seller or guarantors can be involved. [37] Although the rules contain a mechanism that can bind the third party to the decision, subsequent arbitration between buyer and seller creates uncertainty. [38] The arbitral tribunal would apply the rules chosen by the parties without being bound in itself by the decision of a court. In practice, it seems likely that the arbitral tribunal would not reach a conclusion contrary to the Tribunal`s decision. However, that result is not based on a clear provision governing the relationship between the first and second proceedings, but on the general idea that a party would act in good faith if it had a different position from that of the first. [39] The ICC was the first of the leading arbitration institutions to significantly expand the provisions on multi-party and multi-contractual situations in its arbitration rules. The 2012 revision of the rules introduced new provisions in Article 7 et seq., which partially replicated the previous practice of the ICC Court of Justice and partly introduced innovations. [11] [45] Wolff, Design of an Inter-Contractual Arbitration Clause, SchiedsVZ 2008, 59, 62 discusses the scenario of an adjustment of purchase prices based on a separate contract between the objective and the seller, which could be resolved by a multilateral arbitration agreement dealing with BSG and the contract between the objective and the seller. It goes without saying that at this stage, the parties are free to agree on a consolidation of their proceedings by agreeing to vary the arbitration rules in force. The parties may also de facto consolidate their arbitration proceedings by appointing the same arbitral tribunal to rule on all disputes. Hearings may also be conducted simultaneously or successively in order to reduce the risk of contradictory decisions. These solutions require the explicit agreement of the parties who will be made available after the dispute arises.
However, for obvious reasons, such a posteriori agreement is not always given.. . . .
