A Summary Determination Procedure in international arbitration, also known as an Early Determination Procedure or Expeditious Determination or Early Dismissal of Claims and Defences, is the determination of points of law or fact by the arbitral tribunal at an early stage of the arbitral proceedings.
A request for such a summary determination is often made on the basis that a point of law or fact raised by one party is manifestly without merit or manifestly outside of the tribunal’s jurisdiction, or if no award could be rendered in favour of the party that submitted such a point of law or fact.
Summary determinations should not be confused with an expedited procedure, “document’s only” arbitral proceedings or the bifurcation of proceedings, for instance into proceedings concerning jurisdictional issues to be followed by proceedings concerning the merits of a dispute.
The 2018 HKIAC Arbitration Rules recently introduced a summary determination procedure, and has thus joined other institutions like the SCC, SIAC and the ICSID, which explicitly provide for such a procedure.
Summary Determinations under the ICC Arbitration Rules
The 2017 ICC Arbitration Rules do not expressly address the power of an arbitral tribunal to exclude claims or defences at an early stage by way of summary determination. The ICC Note to the parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of Arbitration (the “ICC Note”) provides guidance on how an application for the expeditious determination of manifestly unmeritorious claims or defences may be dealt with, however, within the broad scope of Article 22 of the ICC Arbitration Rules.
The application for expeditious determination must be made as soon as possible after the filing of the relevant claims or defences. The applicant should show that the claims or defences are manifestly devoid of merit or fall manifestly outside the arbitral tribunal’s jurisdiction.
While arbitrators enjoy full discretion as to whether to allow the application to proceed, they must take into consideration the stage of the proceedings and the need to ensure time and cost efficiency.
The ICC Notice specifies that the responding party should have a fair opportunity to answer the application, however, the presentation of evidence is allowed only exceptionally. This should encourage the parties to provide as much evidence as possible in support of their claims or defences. The decision of the arbitral tribunal could be in the form of an order or an award, in the latter case requiring scrutiny by the ICC Court.
Summary Determinations under the HKIAC Arbitration Rules
Article 43 of the HKIAC Arbitration Rules provides that the arbitral tribunal has the power to decide one or more points of law or fact by way of an early determination procedure. In addition to the ground of manifest lack of merit or jurisdiction, an early determination is justified if no award could be rendered in favour of the party who set forth the points of law or fact.
As with the ICC Rules, any request for early determination procedure shall be made as promptly as possible after the relevant points of law or fact are submitted, unless the arbitral tribunal directs otherwise. The arbitral tribunal has 30 days from the date of filing the request to issue a decision either dismissing the request or allowing the request to proceed and fixing the procedure to be followed, if necessary. After this decision, the arbitrators have 60 days to make an order or an award.
Summary Determinations under the SIAC Arbitration Rules
Rule 29 of the SIAC Arbitration Rules provides that the order or Award shall be made within 60 days of the date of filing of the application, unless, in exceptional circumstances, the Registrar extends the time.
Summary Determinations under the SCC Arbitration Rules
Article 39 of the SCC Arbitration Rules provides that the arbitral tribunal may decide one or more issues of fact or law by way of summary procedure, without necessarily undertaking every procedural step that might otherwise be adopted for the arbitration. No strict deadline is imposed on the arbitrator, but the order or the award must be rendered in an expeditious manner.