LD 1218, Page 39 - 121th Legislature, FIRST REGULAR Session

procedures. See Continental Energy Assoc. v. Asea Brown Boveri,

Inc., 192 A. D.2d 467, 596 N.Y.S.2d 416 (1993) (holding that

denial of consolidation not an abuse of discretion where

parties' two arbitration agreements differed substantially with

respect to procedures for selecting arbitrators and manner in

which award was to be rendered); Stewart Tenants Corp. v. Diesel

Constr. Co., 16 A. D.2d 895, 229 N.Y.S.2d 204 (1962) (refusing

to consolidate arbitrations where one agreement required AAA

tribunal, other called for arbitrator to be appointee of

president of real estate board); but see Connecticut Gen'l Life

Ins. Co. v. Sun Life Assurance Co. of Canada, 210 F.3d 771 (7th

Cir. 2000) (noting that court deciding whether to consolidate

arbitration proceedings should not insist that it be clear,

rather than merely more likely than not, that the parties

intended consolidation). Therefore, Section 10(a)(4) requires

courts to consider proof that the potential prejudice resulting

from a failure to consolidate is not outweighed by prejudice to

the rights of parties to the arbitration proceeding opposing

consolidation. Such rights would normally be deemed to include

arbitrator selection procedures, standards for the admission of

evidence and rendition of the award, and other express terms of

the arbitration agreement. In some circumstances, however, the

imposition on contractual expectations will be slight, and no

impediment to consolidation: for example, if one agreement

provides for arbitration in St. Paul and the other in adjoining

Minneapolis, consolidated hearings in either city should not

normally be deemed to violate a substantial right of a party.

Section 10(a)(4) also requires courts to consider whether the
potential prejudice resulting from a failure to consolidate is
outweighed by "undue delay" or "hardship to the parties
opposing consolidation." Such undue delay or hardship might
result where, for example, one or more separate arbitration
proceedings have already progressed to the hearing stage by
the time the motion for consolidation is made.

As the cases reveal, the mere desire to have one's dispute
heard in a separate proceeding is not in and of itself the
kind of proof sufficient to prevent consolidation. Vigo S.S.
Corp. v. Marship Corp. of Monrovia, 26 N.Y.2d 157, 162, 257
N.E.2d 624, 626, 309 N.Y.S.2d 165, 168 (1970), remittitur
denied 27 N.Y.2d 535, 261 N.E.2d 112, 312 N.Y.S.2d 1003, cert.
denied 400 U.S. 819 (1970); see also III Macneil Treatise §
33.3.2 (citing cases in which consolidation was ordered
despite allegations that arbitrators might be confused because
of the increased complexity of consolidated arbitration or
that consolidation would impose additional economic burdens on
the party opposing
it).

4. The language in Section 10(a)(1) regarding "separate
agreement to arbitrate" and "separate arbitration proceedings"

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