NEWSLETTER-2019-metin

153 ARBITRATION LAW law applicable to the merits is not seen as an incompatible matter, as the arbitral tribunals may decide on the claims according to different substantive laws. Although the arbitration agreements do not need to be identical, it is important that the arbitration agreements do not contradict. On the other hand, it is not clear how to decide if the arbitration agreements do not contradict, but one of them is silent in some matters, which matters are regulated under other one. Having said that, it should not be forgotten that the parties are always free to rectify any incompat- ibilities of arbitration agreements, if any. Another challenging requirement inArticle 6(4)(ii) is to determine whether all parties to the arbitration may have agreed that those claims can be determined together in a single arbitration. The Article requires establishing that the parties may have agreed, and not have agreed . This is constructive consent. The determination is at the discretion of the Court, and it may take into consideration all elements that might lead to such conclusion. For instance, it is asserted that identical ar- bitration agreements would be a sign for constructive consent, and different arbitration agreements may lead to the opposite. The Court may take into consideration the identity of the parties to different ar- bitration agreements and their relation, dates of the contracts contain- ing the arbitration agreements, and similarities in the wording of the arbitration agreements. The Court may also take into consideration whether the contracts containing the arbitration agreements relate to the same legal relationship and/or the same economic transaction (as provided for consolidation of arbitrations as per Article 10 of the ICC Rules), whether the relationship between the contracts are horizontal or vertical, etc. As is seen above, Article 9 appears to be a simple Article with one phrase only, but with the references to Article 6(4)(ii), the evaluation may become more complicated.