In the commercial world, time is of the essence. Anyone who has ever litigated knows that it is expensive, time consuming, emotionally harmful and unpredictable. This is especially true if the parties to the dispute are based in different countries.
Alternative dispute resolution, including arbitration, has been gaining popularity as a substitute to litigation. It can ensure confidentiality, and avoid unnecessary delay and excessive costs. However, with such advantages comes greater demand. In order to meet the increasing need for faster, more efficient arbitral proceedings, several institutions have developed their own sets of “fast track” arbitration rules.
In mid-2016, the International Chamber of Commerce (ICC) announced that it would also introduce rules for an expedited arbitration procedure, effective as of March 2017. The new rules were approved by the Executive Board and released in November 2016. Until now, the ICC has not had a separate set of fast track arbitration rules. Previously, parties were only able to use Article 38 of the ICC Arbitration Rules in order to shorten the time limits during proceedings. However, in order to meet the growing trend, a separate procedure has been introduced in Article 30 and Appendix VI of the 2017 ICC Rules. The new rules will only apply to arbitration agreements concluded after March 2017.
The fast track rules which have been adopted by several institutions are not identical. However, there are common elements in all sets of rules which can be said to be key characteristics of fast track arbitration in general:
- The dispute is dealt with by way of a sole arbitrator.
- There is a limited number of permissible submissions.
- A specified limited time is granted for filing each submission.
- Submissions have been given a limited scope.
- No hearing will take place unless requested by the parties.
- The arbitrator may dispense with providing reasons in the award.
- A short time limit is given to the arbitrator to issue the award.
Indeed, the new ICC Expedited Procedure Rules at Appendix VI of the new 2017 Rules appear to have the majority of these characteristics:
- Article 2(1) provides for a sole arbitrator.
- Article 3(2) provides that once the arbitral tribunal has been constituted, no new claims can be made by the parties without the tribunal’s authorisation.
- Article 3(4) gives the sole arbitrator discretion to limit the number, length and scope of written submissions and witness evidence.
- Article 3(5) provides that the sole arbitrator may, after consulting with the parties, decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts.
- Article 4(1) provides the sole arbitrator with a six month time limit to render the award.
It is interesting to note, however, that the new ICC Expedited Procedure Rules also provide a monetary limit, that is, in order for the dispute to be automatically subjected to the expedited procedure, the amount in dispute cannot exceed US $2 million. On the other hand, Article 30 provides the option for parties with claims higher than US $2 million to agree for the expedited rules to apply. Parties whose disputes are automatically subjected to the expedited rules also have the option to opt out and proceed with standard arbitration; the monetary limit may therefore seem somewhat redundant.
Returning to fast track rules in general, although each institution will have many common characteristics, there are various differences. For example, in contrast to the new ICC Rules:
- Under the Grain and Feed Trade Association (GAFTA) Simple Disputes Arbitration Rules No.126, submissions must be served on the other party within seven business days of receipt of the other party’s submissions. If either party wishes for there to be an oral hearing, they must notify the other party and GAFTA.
- The Singapore International Arbitration Centre (SIAC) provides that a case can be conducted in accordance with the expedited procedure provided that the amount in dispute does not exceed 5 million Singapore dollars. The parties must either agree to the use of the expedited procedure, or the case must be of “exceptional urgency”. In addition, parties will only be able to proceed with expedited arbitration if the President of the Court of Arbitration of SIAC considers the case to be appropriate for the expedited procedure.
- Istanbul Arbitration Centre (ISTAC) Fast Track Arbitration Rules shall apply to disputes in which the value of the claims does not exceed 300,000 Turkish Lira. Through Fast Track Arbitration, parties have the ability to the resolve their disputes within three months through the issuance of a final, binding and enforceable arbitral award by a sole arbitrator.
- The World Intellectual Property Organization (WIPO) Expedited Arbitration Rules require that the statement of claim be submitted at the same time as the request for arbitration. Within 20 days of receipt of the request to arbitration, the statement of defence should be submitted along with the answer to request for arbitration. Any replies must be sent within 20 days of the statement of defence or reply, and if any hearings are necessary, the rules provide that they must be condensed and may not exceed three days (other than in exceptional circumstances). Proceedings will be closed within three months of receipt of the statement of defence or the establishment of the tribunal (whichever is later), and the final award will be issued within one month of closure of the proceedings.
As is clear, not all fast track rules are the same. However, they have the same primary aim, which is to speed up proceedings in order to have an award rendered as soon as possible.
For a more specific analysis of the expedited procedures of the ICC and the SCC, see Blog post, Expedited arbitration: Paris v Stockholm: full steam ahead.