M&A Arbitrations involving Multiple Parties and Contracts

Background and introduction

Merger and acquisition (M&A) transactions typically feature heavily negotiated terms, numerous signing entities and stakeholders, as well as multifaceted and interlinked contracts. Owing to their complex nature, M&A transactions inevitably give rise to a wide range of disputes, in many circumstances involving multiple contracts and parties. These issues need to be taken into account when considering whether and how to arbitrate M&A disputes. This chapter discusses practical solutions for parties negotiating their agreements as well as in conducting their dispute proceedings.

Procedural complexity in M&A arbitration

Whereas the paradigmatic arbitration involves two parties – a claimant and a respondent – multi-party situations involving more than two parties often arise in M&A disputes. The following are (non-exhaustive) examples of when complications relating to multiple parties and contracts have arisen:

• Multiple transaction documents: Sophisticated M&A transactions almost always involve multiple transaction documents. For example, parties may enter into a subscription or share purchase agreement, a shareholders’ agreement, amended constitutional documents governing the target company, guarantees and other bespoke ancillary agreements relating to financing the deal, such as loan agreements and share pledges. Conduct said to be a breach of obligations often will constitute breaches of or trigger obligations under multiple agreements.
• Joint venture disputes involving breaches of constitutional documents: In joint venture transactions where the parties acquire equity interests in a joint venture entity and exercise control over the joint venture, shareholders’ agreements are often signed to govern the parties’ obligations in the joint venture. In addition to shareholders’ agreements, the parties’ conduct as shareholders is also subject to provisions in the constitutional documents of the joint venture entity (as well as pursuant to its governing corporate law). Disputes that arise often involve allegations of breach of both documents by various entities and persons.
• Multiple sellers in an M&A transaction: The sellers may be different shareholders in a target company, selling to one or more buyers. The deal might be conducted as a single transaction involving multiple parties under a single or possibly multiple purchase agreements, and potentially alongside new or amended shareholders’ agreements being signed.

In disputes involving multiple parties or contracts, it would typically be efficient and desirable for parties to resolve their dispute in a single proceeding before a single tribunal. This is where the procedural mechanisms of joinder and consolidation come into play.

In traditional national court proceedings, joinder and consolidation are commonly used in consideration of fairness and efficiency. National courts ordinarily have broad and uncontroversial discretion to order joinder and consolidation even absent parties’ consent.^[2] In international arbitration, however, joinder and consolidation of proceedings are not straightforward and present specific problems. Arbitral proceedings by their nature are consensual and driven by the doctrine of party autonomy, and generally it is difficult to join a party to an arbitration without its consent.

Accordingly, in recognition of the increasingly complex nature of commercial disputes, and to keep up with the rising trend of disputes involving multiple contracts and parties, many arbitral institutions have revised their rules to provide for joinder and consolidation. By agreeing to these rules, therefore, parties consent to joinder and consolidation in the circumstances set out in the rules. These circumstances across rules and are summarised in the following pages. Parties would do well to consider them when thinking about which arbitral rule system to select to govern their M&A transaction and, when disputes are on foot and a decision has to be made, whether to seek joinder or consolidation.

Comparative study of common institutional and ad hoc rules

The majority of popular arbitral rules today contain provisions dealing with multi-party and multi-contract situations. In this section, we briefly discuss how they work and the circumstances in which parties may join a third party to the arbitration or consolidate their arbitration with another dispute.

ICC Rules

Under the Rules of Arbitration of the International Chamber of Commerce (the ICC Rules), additional parties may be joined both prior to and following the appointment of an arbitrator.^[3] In the former case, the arbitration will proceed if the ICC Court is prima facie satisfied that an arbitration agreement under the ICC Rules that binds all parties may exist.^[4] Once joined, the additional party may jointly nominate a co-arbitrator with the claimant or respondent, failing which the ICC Court will appoint all three members of the tribunal.^[5] If the joinder request is made following the appointment of an arbitrator, it will have to be decided by the arbitral tribunal, taking into account all relevant circumstances and on condition that the additional party to be joined accepts the constitution of the arbitral tribunal and agrees to the terms of reference.^[6]

Article 9 of the 2021 ICC Rules deals with the multi-contract scenario, providing that claims arising out of multiple contracts can be made in a single arbitration so long as the ICC Court is prima facie satisfied that the arbitration agreements under which those claims are made are compatible, and all parties have agreed that those claims can be determined together in a single arbitration.^[7]

Consolidation issue are decided by the ICC Court. Multiple arbitrations under the ICC Rules can be consolidated if (1) the parties have agreed to consolidation, (2) all claims in the arbitrations are made under the same arbitration agreement or agreements, or (3) the claims in the arbitrations are not made under the same arbitration agreement or agreements, but the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the ICC Court finds the arbitration agreements to be compatible.^[8]

HKIAC Rules

Under the Hong Kong International Arbitration Centre’s Administered Arbitration Rules (the HKIAC Rules), additional parties may be joined in two circumstances: (1) the additional party is prima facie bound by an arbitration agreement under the HKIAC Rules giving rise to the arbitration; or (2) all parties expressly agree.^[9] Joinder can be raised both prior to and following constitution of the arbitral tribunal.^[10] If the tribunal is not yet constituted, HKIAC may decide whether to allow joinder,^[11] and may revoke any arbitrator appointment or appoint the entire tribunal.^[12]

Consolidation of proceedings and multi-contract claims are covered under Articles 28 and 29 of the HKIAC Rules. Article 28.1 provides the HKIAC with the power to consolidate arbitrations pending under the HKIAC Rules in any of the following circumstances: (1) the parties agree to consolidation; (2) all claims in the arbitrations are made under the same arbitration agreement; or (3) if the claims are made under more than one arbitration agreement, a common question of law or fact arises in all the arbitrations, the rights to relief claimed are in respect of, or arise out of, the same transaction or a series of related transactions and the arbitration agreements are compatible (this is also the test for bringing claims under multiple contracts in a single arbitration).^[13] If the HKIAC decides to consolidate, as a default rule the HKIAC will consolidate the arbitrations into the arbitration that commenced first in time, unless all parties agree otherwise or the HKIAC decides otherwise given the circumstances of the case.^[14]

SIAC Rules

Under the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules), effective as of August 2016, parties can be joined either prior to or following constitution of the tribunal with the consent of all parties (including the additional party sought to be joined) or, in the absence of consent, where the additional party is prima facie bound by the arbitration agreement.^[15] If a party is joined prior to constitution of the tribunal, the claimants are to jointly nominate one co-arbitrator and the respondents are to jointly nominate the other, with the presiding arbitrator to be nominated based on a procedure agreed between the parties or, failing agreement, by the SIAC. If the claimants or respondents are unable to agree jointly on a co-arbitrator, the SIAC will appoint all three arbitrators.^[16] If the joinder application is made following constitution of the tribunal, the tribunal will decide on whether to order joinder.^[17] In such cases, the additional party will be deemed to have waived its right to nominate an arbitrator.^[18]

Under the 2016 SIAC Rules, parties may seek consolidation both prior to the constitution of any tribunal in the arbitrations sought to be consolidated, or following constitution of one or more tribunals.^[19] Where no tribunal has been constituted, the application will be determined by the SIAC Court, which may grant the application if any of the following criteria is satisfied: (1) all parties have agreed to the consolidation; (2) all the claims in the arbitrations are made under the same arbitration agreement; or (3) the arbitration agreements are compatible and the disputes arise out of the same legal relationship or relationships, or contracts consisting of a principal contract and its ancillary contracts, or the same transaction or series of transactions.^[20] If a tribunal has already been appointed, any party may apply to the tribunal for consolidation. The same criteria set out above apply, save that consolidation is not possible where different tribunals have already been appointed, unless the parties expressly agree to consolidate (and on the issue of which tribunal will preside going forward).^[21] Claims under multiple contracts are dealt with under Rule 6 of the 2016 SIAC Rules, which approaches the issue as one of consolidation and applies the same test.

LCIA Rules

Unlike the institutional rules discussed above, the Arbitration Rules of the London Court of International Arbitration (LCIA Rules), effective as of 1 October 2020, permit joinder only if the parties have expressly consented to joinder. Merely signing a multi-party contract stipulating arbitration under the LCIA Rules does not itself constitute consent to joinder; rather, parties have to expressly opt in to joinder.^[22] Under the 2020 LCIA Rules, as in the previous 2014 LCIA Rules, the tribunal has the power to allow a third party to be joined, provided the third party and the applicant party have consented expressly to joinder in writing following the commencement of the arbitration or in the arbitration agreement itself.^[23] Notably, this means that the LCIA Rules permit forced joinder (i.e., joining a third party that consents to be joined even if one of the other parties to the arbitration objects).^[24]

As to consolidation, the tribunal, with the approval of the LCIA Court (or the LCIA Court itself, if no tribunal has been constituted), has the power to order consolidation if all parties to the arbitrations to be consolidated agree in writing.^[25] Alternatively, arbitrations can be consolidated if commenced under the same arbitration agreement or compatible arbitration agreements, and are either between the same disputing parties or arising out of the same transaction or series of related transactions, provided that no or only one tribunal has been constituted, or if the same tribunal members have been appointed in two or more proceedings.^[26]

ICDR Rules

Like the LCIA Rules, the International Dispute Resolution Procedures of the International Centre for Dispute Resolution (ICDR Rules) permit joinder only if the parties separately agree to joinder (i.e., the parties have to opt into joinder). Notably, under the 2021 ICDR Rules, additional parties may be joined not only when all parties (including the additional party) consent to joinder but also when the tribunal, once appointed, determines joinder to be appropriate and the additional party consents to joinder (i.e., forced joinder is permitted).^[27]

The 2021 ICDR Rules provide for a unique mechanism for consolidation in contrast to other institutional rules. Specifically, the ICDR may appoint a consolidation arbitrator at the request of a party or on its own initiative, who will have the power to decide whether and how to consolidate multiple arbitrations.^[28] The consolidation arbitrator may consolidate arbitrations pending under the ICDR Rules or administered by the American Arbitration Association (AAA) or the ICDR into a single arbitration where the parties have expressly agreed to appoint a consolidation arbitrator, or where all the claims and counterclaims in the arbitrations are made under the same arbitration agreement.^[29] Alternatively, in the event the arbitrations arise out of different arbitration agreements, consolidation is possible where (1) the arbitrations involve the same or related parties, (2) the disputes arise out of the same legal relationship, or (3) the consolidation arbitrator finds the arbitration agreements to be compatible.^[30] Notably, under the latest rules, effective as of March 2021, arbitrations can be consolidated across arbitration agreements even if the parties are different, so long as they involve related parties. This is significant in the M&A context, where transaction documents are often executed by related parties rather than only by one seller or buyer.

If the consolidation arbitrator decides to consolidate the arbitrations, the parties will be deemed to have waived their right to appoint a co-arbitrator. The consolidation arbitrator has the power to revoke the appointment of any arbitrators already appointed, and may select any previously appointed tribunal to serve in the consolidated proceeding. If necessary, the ICDR will appoint any remaining arbitrators yet to be appointed.^[31]

CIETAC Rules

Under the Arbitration Rules of the China International Economic and Trade Arbitration Commission, of January 2015 (2015 CIETAC Rules), a party wishing to join an additional party to the arbitration may file a request with CIETAC if the additional party is prima facie bound by the arbitration agreement.^[32] CIETAC is empowered to decide whether to order joinder based on the evidence and its views of the circumstances and interpretation of the arbitration agreements.^[33] If the request for joinder is filed after the constitution of the arbitral tribunal, CIETAC may decide whether to permit the request if the tribunal considers the joinder necessary having heard from all parties (including the additional party).^[34]

Once a joinder application has been granted, the claimants or respondents are to jointly nominate their respective co-arbitrators, and if no agreement can be reached at this stage, CIETAC will appoint all three members of the tribunal.^[35] Notably, if joinder is permitted after the constitution of the arbitral tribunal, the 2015 CIETAC Rules permit the additional party to request that a new tribunal be appointed to allow its participation in its constitution.^[36]

The CIETAC Rules also contain fairly broad consolidation provisions. At the request of a party, CIETAC may consolidate two or more arbitrations under the CIETAC Rules into a single arbitration in any of the following situations: (1) the claims in the arbitrations are made under the same arbitration agreement; (2) the claims in the arbitrations are made under multiple arbitration agreements that are identical or compatible, and the arbitrations involve the same parties as well as legal relationships of the same nature; (3) the claims in the arbitrations are made under multiple arbitration agreements that are identical or compatible and the multiple contracts involved consist of a principal contract and its ancillary contracts; or (4) all the parties to the arbitrations have agreed to consolidation.^[37]

Swiss Rules

Under the Swiss Rules of Arbitration, effective as of June 2021 (2021 Swiss Rules), an additional party can request or be requested by a party to join an arbitration either before or after the constitution of the arbitral tribunal. If the tribunal has yet to be constituted, the arbitration shall proceed with all claims (including by or against the additional party) unless the Swiss Arbitration Centre determines that there is manifestly no arbitration agreement referring to the 2021 Swiss Rules, or where claims are made under multiple arbitration agreements that are manifestly incompatible.^[38] This decision is without prejudice and subject to the tribunal’s decision to decide on its jurisdiction after it is constituted.^[39] After the tribunal is constituted, any request for joinder (or intervention) is decided by the arbitral tribunal, ‘after consulting with the parties, [taking] into account all relevant circumstances’.^[40]

The 2021 Swiss Rules authorise the Swiss Arbitration Centre to consolidate arbitration proceedings at the request of a party and after consulting all parties and any confirmed arbitrator,^[41] after taking into account all relevant circumstances, including the links between the claims and the progress already made in the respective proceedings.^[42] When consolidation is granted, the Swiss Arbitration Centre may revoke the appointment of arbitrators and proceed to constitute a separate tribunal to adjudicate the consolidated arbitration in accordance with the Rules.^[43]

UNCITRAL Rules

In contrast to the institutional rules above, the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Rules) are more limited in providing for joinder and consolidation. This is perhaps not surprising since it is a set of ad hoc rules, and there is no administering institution to oversee joinder prior to constitution of the tribunal or to make decisions on consolidation of proceedings. The latest version of the UNCITRAL Rules, adopted in December 2021, now provides a limited scope for joinder. However, there is still no provision for consolidation of proceedings, meaning that unless parties can agree at the time of the dispute to consolidate, they might have to resolve their disputes in multiple parallel proceedings, potentially before different tribunals.

The joinder provisions under the 2021 UNCITRAL Rules are found at Article 17(5), which provides that the arbitral tribunal may, at the request of any party, ‘allow one or more third persons’ to join an ongoing arbitration provided that the person is also a party to the arbitration agreement. The tribunal may deny joinder if it finds that joinder will cause prejudice to any of the parties.^[44] In practice, this provision is likely to see most use where third parties are actively seeking to join the suit (e.g., as an additional claimant or cross-claimant); it is unlikely that tribunals will be able to use it to join parties against their will (e.g., as an additional respondent) given that they may only ‘allow’ parties to join rather than require them to be joined, and since additional parties seeking to resist joinder will often be able to convincingly argue that they would be prejudiced because they were denied their right to nominate a co-arbitrator.

Strategic considerations

In this section, we discuss the strategic considerations in multi-party and multi-contract situations that typically arise in M&A transactions and disputes.

Considerations at time of contracting

Joinder and consolidation offer significant benefits to parties in terms of efficiency in dispute resolution but are not without problems. The general view is that, on balance, providing for some form of joinder and consolidation is beneficial and would be what commercial parties would have opted for had they put their minds to this issue in negotiations. This is the position taken by the majority of institutions, which provide for joinder and consolidation by default such that parties would have to expressly opt out of these positions, although there are a minority that continue to allow joinder or consolidation (or both) only if the parties expressly opt in (e.g., the LCIA Rules). Nonetheless, in individual trans­actions, there might be specific factors at play, and parties need to be mindful of the possibility of joinder and consolidation when negotiating their arbitration clauses.

The principal benefit of providing for joinder and consolidation (or selecting a set of rules that incorporate consent to joinder and consolidation) is that it would prevent parallel proceedings, since the disputes arising between the various parties and under the various agreements can be resolved in a single multi-party or multi-contract arbitration before a single tribunal having access to all the relevant evidence. This is efficient since it would obviate the parties incurring costs litigating the same issues in different forums and, more importantly, avoid the possibility of different tribunals or courts reaching different results on similar issues, and creating enforcement problems and uncertainty in the outcome of the dispute.^[45]

These considerations are relevant in the M&A transaction context. Many of the multi-party and multi-contract scenarios set out above are likely to give rise to parallel proceedings. Accordingly, at the outset where it is unclear which transacting party might end up in potential breach, and where all parties have an interest in maximising the likelihood of compliance by ensuring that the terms of the agreement can be easily enforced should any party breach, it would be in all parties’ interests to opt for the possibility of joinder and consolidation. They can do so by expressly consenting to joinder and consolidation in all their arbitration agreements or, as is more likely to be the case, selecting a set of rules that provide for joinder and consolidation. Importantly, to ensure compatibility between the arbitration agreements so that joinder or consolidation can take place, the parties should ensure that the same rules, arbitral seat, language and number of arbitrators are provided for in the arbitration clauses of every transaction document.

However, joinder and consolidation can present problems of which the parties and their deal counsel should be aware. The key issue here relates to constitution of the tribunal and the parties’ rights to nominate co-arbitrators. Arbitration is paradigmatically designed to facilitate disputes between a single claimant and a single respondent, such that the typical tribunal is comprised of three members – one nominated by each party with a third presiding arbitrator nominated through a joint procedure or by an institution. This is hard to square with situations involving more than two parties. Of course, if all the respondents (or claimants, as the case may be) are aligned and have common interests (e.g., if they are in fact affiliates, or are similarly situated buyers or sellers), then there is little issue. However, if the additional party sought to be joined is aligned with neither the claimant nor the respondent (e.g., a third-party guarantor impleaded in a claim between a claimant and the primary obligor, or a seller joined in a dispute between the buyer and the target), then the issue arises as to which of the three or more parties should be permitted to nominate the two co-arbitrators.

This problem is dealt with in different ways by the various rule systems, as discussed earlier in the chapter. Generally, if the additional party is unable to agree on arbitrator nomination with its co-claimant or co-respondent, the common approach is for the institution to appoint all three members of the tribunal (e.g., ICC Rules, SIAC Rules and HKIAC Rules). If the tribunal has already been constituted, one solution appears to be to permit joinder only if the additional party agrees to be joined (e.g., the ICC Rules), although there are also rules that take the view that the arbitration can continue with the tribunal that has been appointed and that the additional party has waived its right to arbitrator selection.^[46] Even though these solutions provide certainty to parties as to how their dispute will be handled in multi-party situations, they are by no means complete solutions. For example, allowing the institution to appoint all three tribunal members might preserve equality between the parties in the sense that no party will have the right to nominate a co-arbitrator, but defeats the parties’ legitimate expectations in agreeing to arbitration that they would be able to have a hand in picking their decision-maker. Parties should be mindful of this issue and the differences between the various rules in this regard when negotiating their arbitration agreements.

This issue also arises in the consolidation context. If there are multiple arbitrations, multiple tribunals might already have been constituted, or be in the process of being constituted, yet following consolidation only one tribunal will proceed to decide on the matter. The predominant solution here among the various rule systems appears to be to refuse consolidation if that would mean overturning a tribunal that has already been validly constituted, meaning that ultimately it may still be difficult to avoid parallel proceedings.

Strategic considerations at time of dispute

Whereas the parties may have aligned interests in providing for joinder and consolidation at the time of contracting, these interests often change once an actual dispute arises after the transaction documents have been signed. Various scenarios giving rise to joinder and consolidation might develop at this point, especially in M&A disputes:

• The claimant might seek to claim against the respondent under multiple agreements and, to ensure efficient resolution of the dispute and consistency in the findings obtained, might seek to commence a single arbitration under multiple agreements (or commence multiple arbitrations with a concurrent request for consolidation). This arises when, for example, the claimant has claims under both the shareholders’ agreement and the share purchase agreement, or when the claimant is a purchaser or subscriber that purchased (or subscribed to) separate tranches of shares sold (or issued) by the respondent under separate agreements.
• The respondent might seek to implead a third party to escape or reduce liability. For example, a guarantor might seek to join the primary obligor to the proceeding so that it can be held liable on its primary obligation.
• The claimant might seek to join additional respondents to the proceedings after more facts come to light suggesting that additional parties may be liable to it for breach. Potentially, this situation can arise when affiliates of the respondent are parties to transaction documents with the claimant, and the claimant later discovers that these affiliates were also implicated in the respondent’s breach.
• Additional parties might attempt to join the arbitration as co-claimants if they also have claims against the respondent arising out of the transaction. For example, in a claim by an investor against a seller or issuer, other investors might also seek to join the arbitration as co-claimants.
• For strategic reasons, the respondent might seek to commence parallel proceedings, thereby creating procedural complexity and uncertainty in the dispute. On the other hand, it will generally be in the claimant’s interest to consolidate these proceedings so that the dispute can proceed smoothly and efficiently and, importantly, to prevent the possibility of conflicting findings and awards that might cast uncertainty over the result of the dispute and complicate its later enforcement efforts.
• Apart from pursuing or avoiding liability, parties may also seek to join additional parties that are in possession of relevant and material evidence. Joining them to the arbitration potentially opens the possibility of obtaining disclosure of documents from them.

In many of these situations, and more generally in the context of a dispute having arisen, often there will be one side that seeks joinder or consolidation (or both), and one side that opposes it either to avoid liability or for tactical reasons. In the authors’ experience, joinder and consolidation applications tend to be contested. As a threshold issue, applications are likely to fail if the applicable dispute resolution agreements under which joinder or consolidation are sought are not only different but incompatible. As a general matter, it is also typically more difficult to join a party or to consolidate proceedings after arbitrators have been appointed. Ultimately, however, whether joinder and consolidation is possible will depend on the specifics of the case and the rules chosen by the parties.

Notes