REUTERS | Amr Abdallah Dalsh

Expedited arbitration, autonomy and due process (part one)

This two-part blog post considers the key features of expedited arbitration and how they modulate the balance between efficiency, autonomy and due process. Part one addresses appointment of arbitrators and the arbitral procedure, and part two addresses hearings in expedited arbitrations.

Expedited arbitration gained currency as part of the arbitration community’s response to the growth of time and cost of arbitral proceedings.  Such provisions encourage arbitral tribunals and arbitral institutions to adopt procedures which alter the balance between time and cost, on the one hand, and some of the hallmarks of arbitration as a consent-based dispute resolution process, including party autonomy and due process, on the other.

Provisions for expedited arbitration apply in appropriate cases that are identified either by the amount in dispute, party agreement or, in some cases, sufficient urgency. Different arbitration rules apply different “gateway” provisions for expedited arbitration:

  • Under article 30 of the ICC Rules, the Expedited Procedure Provisions apply automatically where the amount in dispute is below a financial threshold (currently USD3 million), subject to the ICC Court’s determination, or otherwise where the parties agree to an expedited procedure.
  • Article 5 of the SIAC Rules likewise applies a financial threshold (USD6 million), and also includes cases of exceptional urgency. Unlike the ICC Rules, a party must request the arbitration to be expedited and the decision to apply expedited provisions is taken by the President of SIAC.
  • By contrast, the Stockholm Chamber of Commerce (SCC) provides a freestanding set of Rules for Expedited Arbitration, to which the parties must expressly agree. The SCC advises a model arbitration clause by which the parties empower the SCC to decide whether to apply the Expedited Arbitration Rules or standard arbitration rules.

These “gateway” provisions are important in relation to party autonomy.  Expedited arbitration procedures frequently provide for the appointment of a sole arbitrator, including overriding contrary provisions of the parties’ arbitration agreement.  Proceeding this way requires caution as arbitral awards may be set aside, or enforcement refused, where the composition of the arbitral tribunal “was not in accordance with the agreement of the parties” (UNCITRAL Model Law (2006), articles 34(2)(a)(iv) and V(1)(d), New York Convention).  The question will therefore be what constitutes the “agreement of the parties” for this purpose.  As the SCC and UNCITRAL Expedited Rules apply by express agreement of the parties, it may not be difficult to find the requisite party agreement. The argument may be less straightforward where the application of expedited rules does not require specific party agreement, but flows from a term of the arbitration rules the parties have selected (as is the case with the ICC or SIAC Rules).  A set aside application on this basis was rejected by the Singapore High Court in AQZ v ARA, however a court in Shanghai refused to enforce another award in an expedited SIAC arbitration under article V(1)(d) of the New York Convention for this reason (Noble Resources International Pte Ltd v Shanghai Good Credit International Trade Co, Ltd [2016] Shanghai No.1 Intermediate People’s Court (Hu 01 Xie Wai Ren No. 1)).  Article 5.3 of the 2016 SIAC Rules now includes language intended to bolster party consent to this mechanism.  For similar reasons of consent, the ICC Rules specify that they “shall take precedence over any contrary terms of the arbitration agreement” (article 30.1) and provide that an expedited procedure is inapplicable to arbitration agreements concluded before the ICC expedited procedure came into force, that is, to which the parties could not be considered to have consented.

Expedited arbitration procedures normally provide a non-exhaustive menu of procedural matters which the arbitral tribunal has the discretion to adopt to ensure the expeditious determination of the parties’ dispute.  These include curtailing time periods, limiting the number, length and scope of written submissions, similarly limiting the evidence of fact and expert witnesses, and dispensing with or limiting document production requests.

These case management powers are not unique to expedited arbitration. This is reflected in the approach adopted in the 2020 update to the LCIA Rules of Arbitration, which retains the provision for expedited formation of an arbitral tribunal (article 9A). However, like previous iterations of the LCIA Rules, it does not provide a gateway (whether financial or otherwise) for the application of expedited procedures, but reiterates the arbitral tribunal’s “discretion” in all cases to “make any procedural order it considers appropriate with regard to the fair, efficient and expeditious conduct of the arbitration” (article 14.5).  Article 14.6 includes a non-exhaustive list of procedural directions “with a view to expediting the procedure”.

The purpose of mentioning specific procedural measures that an arbitral tribunal has discretion to adopt is therefore not a modification of an arbitral tribunal’s procedural powers, but serves principally to shape the debate between the parties and the tribunal on procedural matters and, possibly, stiffen the arbitrator’s resolve to act assertively on procedural matters at an early stage to promote efficiency. It is difficult to successfully challenge an arbitrators’ case management decisions.  In China Machine New Energy Corp v Jaguar Energy, the Singapore Court of Appeal rejected an application to set aside an award based, among other things, on a tribunal’s case management of an arbitration under an agreement that provided for an expedited schedule, noting that this would be a context-specific enquiry and the tribunal’s decisions should be afforded a margin of deference (see also English Commercial Court decision in ASM Shipping Ltd of India v TTMI Ltd of England at paragraph 38, asking whether a procedural decision was “so far removed from what could reasonably be expected of the arbitral process that it must be rectified”).

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