Considering Consolidation

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Description: Most reinsurance agreements arise in interstate commerce and are governed by the Federal Arbitration Act (FAA), which is silent on consolidation. Until recently, courts determined whether arbitrations involving multiple contracts, parties, or claims could be consolidated. The FAA creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate. The FAA is applicable to all arbitration agreements involving maritime or interstate commerce transactions, and it is applicable to any arbitration agreement within the coverage of the Act. The courts have not provided clear direction as to how the parties or arbitrators are supposed to proceed following a ruling that consolidation is an issue for the arbitrators to resolve. To the extent one may be extracted, the guiding principle appears to be that the courts will consider not only the parties' substantive rights but also the procedural posture of each case. Indeed, in some jurisdictions it is clear that parties who disagree on consolidation will need to engage in procedural skirmishes in an effort to best assert their position on consolidation.
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