NEWSLETTER-2019-metin

152 NEWSLETTER 2019 Article 9 clearly specifies that for a multi-contract arbitration, the claims do not need to be made under the same arbitration agreement. The claims may be made either under one, or more than one, arbitra- tion agreement. It is also important to note that “multiple contracts” and “multiple arbitration agreements” are separate issues and have different legal ef- fects. More specifically, Article 6(4)(ii) applies only in multi-contract cases where there are multiple arbitration agreements. If there are multiple contracts, but only one arbitration agreement, only Article 9 will apply, and the requirements set forth under Article 6(4)(ii) will not be sought; this sub-paragraph does not apply to multiple contracts with only one arbitration agreement. Accordingly, if the claims are made under more than one contract, but with one arbitration agreement, only Article 9 shall apply, and the prima facie assessment will be made according toArticle 6(3) together with the first sentence of Article 6(4); no examination as to Article 6(4)(ii) will be made. However, if more than one arbitration agreement is at stake, then Article 6(4)(ii) shall also apply. Article 6(4)(ii) stipulates two conditions for making claims under more than one arbitration agreement. Firstly, the arbitration agree- ments must be compatible; and secondly, it must be established by the Court that all parties to the arbitrations may have agreed that those claims can be decided together under a single arbitration. For making such evaluation, no guidance is provided. There is no definition or explanation under the ICC Rules provided for “more than one arbitra- tion agreement,” “compatibility,” and the constructive consent of the parties who “may have agreed” to a single arbitration 3 . The Court has discretion to decide on these matters. It is generally accepted that the compatibility test, which is also made for consolida- tion of arbitrations as per Article 10 of the ICC Rules, refers mostly to procedural aspects of the arbitration agreements, such as the place of arbitration, the number of arbitrators, and the language, etc. The 3 However, “The Secretariat’s Guide to ICC Arbitration” by Jason Fry, Simon Greenberg and Francesca Mazza (ICC Publication No. 729E, 2012 Edition) provides important insight on how the Court conducts its evaluations.