Procedural integrity is an overriding concern of the arbitral process. As a minimum this suggests that the arbitration must be conducted according to law; that the award must be reasoned and that the arbitrators must be faithful to their mandate. Closely related to these considerations is respect for the autonomy of the parties who have chosen arbitration rather than some other form of dispute settlement. Is forced consolidation of claims of different parties in any way compatible with these values? Many would instinctively say that it is not, and that consolidation at the behest of one party only, possibly performed by a tribunal which is not chosen by either party is the very negation of the normal values of the arbitral process.1 Article 1126 of the North American Free Trade Agreement2 offers one of the most notable examples of an investment agreement which provides for a compulsory consolidation process which can be triggered by the State party and, for this reason, offers one of the best means of answering these questions.
Table of Contents:
I. Procedural Integrity: Consolidation under NAFTA Article 1126
II. Systemic Integrity: Issues Revealed by Arbitration under NAFTA Chapter 11