Summary procedures in international arbitration mean procedures by which the arbitral tribunal determines certain points of fact or law at an early stage of the proceedings, potentially dispensing with the need for further arbitration proceedings.
Summary proceedings can be a blessing to a respondent facing frivolous claims that obviously lack merit, as a successful dismissal of claims following summary proceedings will avoid the time and cost of full international arbitration proceedings. Summary proceedings can also be useful for a respondent when the claims it is facing clearly fall outside the jurisdiction of an arbitral tribunal.
Although summary determination procedures may have different names under different arbitration rules, it is important not to confuse them with expedited arbitration procedures, “documents only” arbitral proceedings, and bifurcated arbitral proceedings. These three terms describe full arbitration proceedings (except if a tribunal finds that it has no jurisdiction to hear the case in bifurcated proceedings). In summary procedures, however, the parties do not go through the entire process and do not present all their arguments or submit all of the evidence. The reason why the parties need not go into the details of a claim is usually that it is unmeritorious, abusive or manifestly outside of the tribunal’s jurisdiction.
This article explains the basic features of summary procedures under different sets of arbitration rules.
Summary Procedure Under the SIAC Rules
The Singapore International Arbitration Centre (SIAC) was a pioneer in introducing a summary procedure in its 2016 SIAC Arbitration Rules.
Rule 29 is titled Early Dismissal of Claims and Defences and provides that the parties may apply to the tribunal for the early dismissal of a claim or defence if it is “manifestly without legal merit” or “manifestly outside the jurisdiction of the Tribunal”.
If such an application is allowed to proceed, the arbitral tribunal must make an order or an award within 60 days of the date of filing the application.
Therefore, a frivolous case may be disposed of in a limited time period.
Expeditious Determination Under the ICC Rules
As discussed in Summary Determinations in International Arbitration, neither the 2017 ICC Arbitration Rules nor the 2021 ICC Arbitration Rules explicitly address the possibility of a summary procedure.
Instead, the ICC issued a Note to the parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of Arbitration in which it provides guidance on how to deal with manifestly unmeritorious claims and defences under the scope of Article 22 (Conduct of the Arbitration). The procedure includes an application showing why the claim or the defence is manifestly devoid of merit or manifestly outside the arbitral tribunal’s jurisdiction, and a fair opportunity for the responding party to submit an answer.
Article 22 was not amended in the 2021 rules, except for a reference to the new Appendix IV, which describes certain case management techniques, including bifurcation, “documents only” arbitration and settlement.
Summary Procedure Under the SCC Rules
The 2023 SCC Rules also contain express rules for a Summary Procedure, included in the previous version of the rules as well. Article 39(1) provides that:
A party may request that the Arbitral Tribunal decide one or more issues of fact or law by way of summary procedure without necessarily taking every procedural step that might otherwise be adopted in the arbitration.
Article 39(2) then provides examples for reasons of a summary procedure, including that an allegation of fact or law is manifestly unsustainable or no award could be rendered in favour of the party alleging certain facts.
It also allows, however, any issue of fact or law “suitable to determination by way of summary procedure” to be decided in this expedited manner.
Early Determination Procedure Under the HKIAC Administered Arbitration Rules
The HKIAC Rules contain very similar provisions to those found in the SCC Rules. Article 43.1 states that the arbitral tribunal has the power to decide points of law or fact by way of early determination procedure on the basis that:
- They are manifestly without merit;
- They are manifestly outside the jurisdiction of the arbitral tribunal; or
- Even if they are assumed to be correct, no award can be rendered in favour of the party submitting them.
If the request is allowed to proceed, a 60-day deadline applies as under the SIAC Rules, albeit starting from the date of the decision to proceed (Article 43.6). In the meantime, the tribunal may decide whether and to what extent the arbitration can proceed (Article 43.7).
Early Determination Procedure Under the LCIA Rules
The 2020 LCIA Rules are the latest to introduce explicit rules on a summary procedure. Article 22.1(viii) gives tribunals the power to conduct an Early Determination and:
Determine that any claim, defence, counterclaim, cross-claim, defence to counterclaim or defence to cross-claim is manifestly outside the jurisdiction of the Arbitral Tribunal, or is inadmissible or manifestly without merit; and where appropriate to issue an order or award to that effect […].
The LCIA Rules, however, do not detail the rules of Early Determination further, therefore leaving the question of the conduct of the procedure to the discretion of the arbitrators.
Under the ICSID Convention, it is the Secretary-General’s task to notify the parties and to refuse to register a request for arbitration if the dispute is manifestly outside the jurisdiction of the Centre (Article 36(3)).
Rule 41 of the 2022 ICSID Arbitration Rules, furthermore, allows parties to object that a claim is manifestly without legal merit, including regarding the substance of the claim, the jurisdiction of the Centre, or the competence of the arbitral tribunal.
Such a submission must be filed within 45 days after the constitution of the tribunal and specify the grounds for the objection and the relevant facts, law, and arguments. The tribunal then allows both parties to make arguments and renders its decision on the objection within 60 days of the last submission or the constitution of the tribunal.
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In the evolving landscape of international arbitration, summary procedures offer a streamlined pathway to address issues of fact or law early in the proceedings. With various international arbitration institutions such as SIAC, SCC, HKIAC, LCIA, and ICSID integrating different versions of these procedures into their rules, parties are granted an efficient avenue to tackle claims or defences that are manifestly without merit or outside the tribunal’s jurisdiction. While the specific methodologies and timeframes may differ, the underlying objective remains consistent: to facilitate a more expeditious and cost-effective dispute resolution process. As these mechanisms continue to gain traction, parties must be well-versed in the nuances of each set of rules to ensure they navigate their disputes effectively.