Você está na página 1de 22

Copyright © International Chamber of Commerce (ICC). All rights reserved.

( Source of the document: ICC Digital Library )

Giacomo Marchisio

Giacomo Marchisio is Academic Coordinator of the Private Justice and the Rule of Law
Research Group at McGill University, Montreal, Canada. The author wishes to thank
Professors Fabien Gélinas, Frédéric Bachand, and Charles Jarrosson for their comments on
an early draft of this article. Any outstanding mistakes are the author’s alone.

ICC Dispute Resolution Bulletin 2017 Issue 1

76

Recent Solutions to Old Problems: A Look at the Expedited Procedure under the Newly
Revised ICC Rules of Arbitration

[2017 ICC Rules] [Expedited Procedure] [Proportionality] [Judicialization]

Recent Solutions to Old Problems: A Look at the


Expedited Procedure under the Newly Revised ICC
Rules of Arbitration
Introduction

Expedited procedures in institutional arbitration

Overview of the expedited procedure under the 2017 ICC Rules

Can the expedited procedure facilitate requests to refuse recognition of an international


award on grounds of irregular constitution of the tribunal?

The expedited procedure as an effective tool against judicialization?

Conclusion
Introduction

Venice, 1 September 1437: legislation is passed to counteract the excessive duration of


arbitral proceedings. 1 Paris, 1 March 2017: the latest version of the ICC Rules of
Arbitration (ICC Rules) containing an expedited procedure enters into force. ICC’s new
expedited procedure 2 comes 62 years after the introduction of a specific provision
requiring arbitrators to guarantee expeditious proceedings in its 1955 Rules. 3 Has
Giambattista Vico, an eighteenth-century Italian intellectual known for his theory on
the cyclical nature of history, been proved right?

Sarcasm aside, there is no doubt that the nature of international arbitration has
changed. In the words of the late Lord Mustill:

The procedure was, by definition, fast-track. That was why the parties chose it as
their method of resolving disputes. What has changed in the last forty years is
the creation of the new, slow-track arbitration which is the kind of arbitration
which is the subject of almost everything written and spoken on the subject. 4

Over the last twenty years, the international arbitration community has become
increasingly critical of the duration and cost of arbitral proceedings administered by
institutions. 5 As noted by Klaus Peter Berger, ‘arbitration has fallen victim of its own
success[; ... it] lends itself much more to the resolution of complex cross-border
business disputes than court proceedings, but complexity necessarily leads to lengthy
and more costly proceedings’. 6 To counter this problem, arbitral institutions first
suggested that parties tackle the issue of duration and cost directly in their
arbitration clauses, by including specific provisions empowering arbitrators to set up a
fast-track procedure. 7 Article 32 of the 1998 ICC Rules (now Article 39), for instance,
allowed parties to reduce the time limits contained in these rules, leaving the ICC
International Court of Arbitration (the ‘ICC Court’) with the possibility of extending
such limits. 8 More initiatives followed, including guidelines for a speedy and cost-
effective resolution of disputes. 9 Yet, this was not enough. Unsatisfied with the
results, arbitral institutions started to set out further measures in their rules, conscious
of the difficulties that can arise when attempting to negotiate a workable arbitration
clause containing a fast-track procedure 10 or agree on effective case management
techniques once a dispute has arisen. 11 ICC has now joined the ranks of such
institutions.
This article addresses the 2017 amendments to the ICC Rules of Arbitration, which
introduce a new expedited procedure applicable by default to claims up to and
including US$ 2 million, and comments on their usefulness. It first describes the
framework surrounding the use of expedited procedures in institutional arbitration,
then focuses specifically on the 2017 ICC Rules, before going on to consider some of
the challenges raised by these procedures at the stage of <page_77> enforcement or
annulment of an award, and lastly the desirability of these procedural tools and their
potential for success.

Expedited procedures in institutional arbitration

In the last couple of years, the most prominent arbitral institutions have started to
offer ways of achieving faster arbitral proceedings. Ironically, they have gone about
this with some expedition. In 2014, Gary Born presented a very different picture:

[P]arties sometimes agree to highly expedited or ‘fast-track’ arbitrations, where


the entire arbitral process is fit within an abbreviated time period. Some arbitral
institutions have adopted rules specifically designed for such proceedings,
particularly in recent years. A number of institutions (including the ICC, LCIA,
PCA, SIAC and HKIAC) do not offer specific fast track procedures but parties are
free to provide for expedition by agreement . 12

As of today, three of the five institutions named above now offer (or, as in the case of
ICC, impose) an expedited procedure for claims up to a certain value. Let us look at
some examples.

According to the 2016 SIAC Rules, any party may , before the constitution of the
tribunal, request that the arbitration follow the expedited procedure set out in the
rules. 13 A nearly identical provision is to be found in the 2013 HKIAC Administered
Arbitration Rules (HKIAC Rules). 14 As for the LCIA Arbitration Rules (LCIA Rules), while
they contain no expedited procedure, under the 2014 version of the rules parties can
apply for expedited formation of the tribunal. 15 Also under the LCIA Rules the arbitral
tribunal may, upon the application of any party or on its own motion, abridge or
extend ‘any period of time prescribed under the Arbitration Agreement, any other
agreement of the parties or any order made by the Arbitral Tribunal’. 16

Most recently, the Stockholm Chamber of Commerce (SCC) has presented its 2017
Rules for Expedited Arbitrations, 17 which will apply when parties so agree. These rules
favour the appointment of a sole arbitrator and establish a short time limit for the
rendering of the final award (three months from the date on which the case is
referred to the arbitrator). 18 They also provide that a request for arbitration shall be
treated as a statement of claim, rather than a mere introductory pleading, 19 and that a
tribunal need not include reasons in its award, unless a party so requests. 20

In the face of such proliferation, it is important to clarify a key point. In theory, the
expression ‘expedited procedure’ should be understood as referring to a tool aimed at
accelerating and simplifying key aspects of proceedings, with a view to reaching a
final decision on the merits in a cost-effective and reasonably fast manner. 21 As such,
this procedure is not necessarily meant to deal with urgent situations, 22 which may be
better tackled in emergency arbitrator proceedings or through provisional measures
ordered by a state court. 23

Urgent situations are properly dealt with by invoking the provisional powers of
arbitrators (be they emergency arbitrators or the arbitral tribunal appointed to hear
the merits), who will render a provisional decision. 24 Such a decision will have a
provisional character because of the nature of the proceedings that led to it. In most
cases, urgency will require a compression of the opposing party’s rights, while the
claimant will benefit from a reduced onus of proof. Simply put, claimants will not have
to prove that their claim is founded in law, but rather that they are facing an
imminent danger, which is likely to cause irreparable harm.

Interestingly, evidence of the confusion between the urgency requirement and the
need for establishing a cost-effective procedure can be found in the ambiguous
formulation of the 2016 SIAC Rules, which leave it unclear whether monetary value
alone is sufficient to justify expedited proceedings. 25 Unlike proceedings aimed at
obtaining provisional measures in urgent situations, in expedited procedures
arbitrators render full-fledged, final decisions on the merits, much as they do in
ordinary proceedings. The differences between the two types of proceedings are thus
evident and seem to justify ICC’s decision to list the monetary value as the sole
criterion for the application of the expedited procedure.

The underlying intention behind the 2017 ICC Expedited Procedure Rules (and the
same is true of the SCC Rules for Expedited Arbitrations) is to pre-define a cost-
effective procedure with a level of complexity proportional to the value of a dispute.
Many litigators will be familiar with such a move, as several jurisdictions have already
attempted to improve access to justice by passing legislation that introduces simpler
and less expensive types of proceedings in civil litigation. 26 These reforms were
inspired by the so-called principle of proportionality, according to which the
procedural means invested in a dispute should be proportional to the value of the
dispute itself. 27 It is unclear, to say the least, why certain arbitration centres have
preferred to limit the application of an expedited procedure solely to <page_78>
urgent cases. It is apparent that expedited procedures are meant to be not only fast
but also (and perhaps most importantly) cost-effective. Be that as it may, let us turn
to the 2017 ICC Rules.

Overview of the expedited procedure under the 2017 ICC Rules

The constituent elements of ICC’s expedited procedure are split between Article 30 28
of the ICC Rules and the new Appendix VI. This drafting technique recalls that used for
the emergency arbitrator: a general provision in the main body of the rules and a
more detailed set of provisions in the form of an appendix. Another similarity with the
emergency arbitrator procedure lies in the opt-out character of the expedited
procedure. 29 However, it is worth noting that the ICC Court has the final say on the
procedure’s application: it may determine ‘upon the request of a party before the
constitution of the arbitral tribunal or on its own motion ... that it is inappropriate in
the circumstances to apply the Expedited Procedure Provisions’. 30 Symmetrically, the
ICC Court may, after the tribunal has been constituted, determine that the expedited
procedure no longer applies. 31 This latter situation raises a delicate question regarding
the fate of the constituted tribunal. In such a case, the general rule will be to preserve
the appointed tribunal, unless the ICC Court considers that it is appropriate to replace
or reconstitute it. 32

The expedited procedure will apply only where the arbitration clause was concluded
after the entry into force of the new provisions. 33 This constitutes an exception to the
general rule set out in Article 6(1), according to which ‘[w]here the parties have
agreed to submit to arbitration under the Rules, they shall be deemed to have
submitted ipso facto to the Rules in effect on the date of commencement of the
arbitration, unless they have agreed to submit to the Rules in effect on the date of
their arbitration agreement’.

In a nutshell, the expedited procedure will apply to proceedings where the amount in
dispute does not exceed US$ 2 million 34 or where the parties have agreed upon this
particular procedure. 35 Where its application is triggered exclusively by the monetary
value of the claims, this determination will be based on the amounts stated in the
request for arbitration (Article 4(3)(d)) and respondent’s answer (Article 5(5)(b)). The
latter amount can be affected by a respondent’s decision to file a counterclaim. This
can entail some difficulties: while a respondent is expected to file any counterclaims
with its answer, circumstances may not allow it to do so, and the counterclaim could
happen to be filed at a later date. 36 Similarly, difficulties can arise when a claimant
merely seeks declaratory relief. In this case, the 2012 Secretariat’s Guide states that
parties should nonetheless provide an estimate of the monetary value, adding, quite
laconically, that ‘[h]ow that value is to be determined will depend on the nature of
the declaration ... sought’. 37

A key aspect of the new expedited procedure is the referral to a sole arbitrator, who
will either be appointed by the ICC Court or nominated by the parties, depending on
the terms of their arbitration clause (and on whether or not the parties were able to
agree upon the same individual). 38 Other key features are the absence of terms of
reference 39 – which means that new claims will be barred, in principle, after the
constitution of the arbitral tribunal, unless the tribunal determines otherwise 40 – and
the accelerated schedule for the case management conference, which will take place
‘no later than 15 days after the date on which the file was transmitted to the arbitral
tribunal’; 41 however, ‘the Court may extend this time limit pursuant to a reasoned
request from the arbitral tribunal or on its own initiative if it decides it is necessary to
do so’.

As far as evidence is concerned, Article 3(4) of Appendix VI states that a tribunal can
‘decide not to allow requests for document production or to limit the number, length
and scope of written submissions and written witness evidence (both fact witnesses
and experts)’. Similarly, according to Article 3(5) of Appendix VI, a tribunal can opt for
a purely written procedure and decide the dispute on the sole basis of the documents
submitted by the parties (thus excluding any hearings for the examination of
witnesses and experts).

Finally, a shorter time limit applies to the rendering of the award, which is six months
from the date of the case management conference. 42 However, the ICC Court
maintains a discretionary power allowing it to extend such term. 43

Can the expedited procedure facilitate requests to refuse recognition of an


international award on grounds of irregular constitution of the tribunal?

One cause of concern is Article 30(1) of the 2017 ICC Rules, which states that the
Expedited Procedure Provisions shall take precedence over any contrary terms of the
arbitration agreement. In other words, if an ICC arbitration clause negotiated by
parties after the entry into force of the 2017 ICC Rules provides that all <page_79>
disputes must be resolved by a tribunal composed of three arbitrators, then this
provision can be disregarded by the ICC Court if the value of the dispute triggers the
application of the expedited procedure. The principle is reiterated in Article 2(1) of
Appendix VI, which states that ‘[t]he Court may, notwithstanding any contrary
provision of the arbitration agreement, appoint a sole arbitrator’.

There may be other instances in which the terms of an arbitration agreement can
differ from the expedited procedure, such as when parties have agreed upon specific
characteristics of the arbitral proceedings (examination of witnesses, hearings, etc.);
however, these situations should not constitute a problem, for the provisions
contained in Articles 3(4) and 3(5) of Appendix VI, regulating the conduct of expedited
proceedings, are not mandatory. The terms of the arbitration agreement will then
prevail. 44 While the arbitral tribunal has, in theory, the power to decide the dispute on
the sole basis of the documents submitted by the parties (Article 3(5) of Appendix VI),
it will be prevented from doing so if the terms of the arbitration agreement indicate
otherwise, unless the parties subsequently agree on a documents-only procedure.

Let us imagine that an arbitration agreement contains a reference to a three-member


tribunal and the ICC Court decides that the arbitration should proceed under the
Expedited Procedure Rules. What is the consequence of this decision on the award
rendered by the sole arbitrator? Could the losing party resist enforcement under the
1958 New York Convention by arguing that the ‘composition of the arbitral authority
or the arbitral procedure was not in accordance with the agreement of the parties’
(Article V(1)(d)). As noted by an authoritative commentator, ‘this ground has only
infrequently provided the basis for denying recognition to an award’. 45 There have
been instances, however, where it proved to be successful. 46

Assuming that the interested party has objected to the appointment of a sole
arbitrator, in the absence of which a claim under Article V(1)(d) could be barred, 47
could failure to abide by the appointing procedure, including the number of
arbitrators agreed upon by the parties, constitute a successful ground on which to
refuse recognition? In AQZ v ARA , 48 a 2015 Singapore case, a similar argument was
rejected. The case clarifies why such a claim would likely fail in the context of an
institutional arbitration. This is because Article V(1)(d) of the New York Convention
refers to ‘the agreement of the parties’ 49 and in institutional arbitration the content of
the parties’ agreement is largely determined by the chosen institution’s rules. 50

In AQZ v ARA , the parties had entered into a contract in December 2009 and agreed
on a three-member tribunal. 51 The disputes that arose under the contract were
eventually arbitrated under the 2010 version of the SIAC Rules, which had introduced
a new default expedited procedure for claims under a certain value. 52 Given the
amounts of the claims filed in the arbitral proceedings, the case was dealt with by a
sole arbitrator under the expedited procedure. The court held that the decision to
apply the 2010 version of the rules was sensible, for ‘there is a presumption that
reference to rules of a particular tribunal in an arbitration clause refers to such rules
as are applicable at the date of commencement of arbitration and not at the date of
contract, provided that the rules contain mainly procedural provisions.’ 53 The fact that
the arbitration clause contained a reference to a three-member tribunal, moreover,
was held not to be problematic. In this regard, the High Court noted the following:

[T]he rules together with the rest of the contract must be interpreted purposively
... [a] commercially sensible approach to interpreting the parties’ arbitration
agreement would be to recognise that the SIAC President does have discretion to
appoint a sole arbitrator. Otherwise, regardless of the complexity of the dispute
or the quantum involved, a sole arbitrator can never be appointed to hear the
dispute notwithstanding the incorporation of the SIAC Rules 2010 which provide
for the tribunal to be constituted by a sole arbitrator when the Expedited
Procedure is invoked. 54

It should be said that, unlike the 2017 ICC Rules, the SIAC Rules do not contain a
provision limiting the application of the expedited procedure to arbitration
agreements concluded after the entry into force of the rules. 55 In ICC arbitration,
therefore, the parties’ choice of a three-member tribunal in cases that are eventually
dealt with by a sole arbitrator is even less problematic. This is so because the
outcome is easier to justify through a purposive interpretation of the agreement,
whereby the choice of a three-member tribunal should be considered as implicitly
applicable only to disputes that do not fall under the US$ 2 million limit that triggers
the application of the expedited rules. 56 In ordinary proceedings, parties will still be
free to agree upon the number of arbitrators. Any provision to this effect in an
agreement is therefore meaningful and not contradictory. Finally, in extreme cases,
where both parties refuse to have an expedited procedure with a sole arbitrator, the
institution may decline to administer the case, which will leave the parties with the
possibility of proceeding with an ad hoc arbitration. 57 <page_80>

The expedited procedure as an effective tool against judicialization?

In recent years, literature on international commercial arbitration has made increasing


use of the term ‘judicialization’. In political science – the field from which the term
was borrowed – judicialization refers to ‘the process by which non-judicial negotiating
and decision-making fora come to be dominated by quasi-judicial (legalistic) rules and
procedures’. 58 Taking a closer look at the process of judicialization in private matters
(such as commercial cases and other private law disputes), Alec Stone Sweet has
defined judicialization as the construction of legitimacy by a third party in a position
of authority vis-à-vis two litigants. 59

In international arbitration the term is found in highly differing contexts. On the one
hand, it has been used to emphasise the adjudicative power of arbitrators and the
fact that arbitration is not purely a private endeavour stemming from a contractual
agreement reached by the parties, but also the expression of a broader goal: the
administration of civil justice. 60 In this context, it refers to the similarities between
arbitral justice and state justice, united in their effort to maintain social cohesion. 61 On
the other hand, it appears in critiques decrying the excessive duration of arbitral
proceedings and their increasing complexity. 62 Here, it has a negative connotation as
judicialization is said to have turned this alternative method of dispute resolution,
once an idyllically fast and simple procedure, into a slow and expensive process. 63

At first blush, the expedited procedure seems to constitute one of the (many) tools
available to counter the negative effect of judicialization described above, its goal
being to save international arbitration from becoming as costly and lengthy as state
litigation. The hope is that the expedited procedure will, in the short term, be able to
cure some of the causes of the excessive cost and duration of arbitrations. Perhaps, in
a few years, this effort may be further sustained by increased use of summary
judgment procedures in international commercial arbitration. 64

Whether the cure will be sustainable in the longer term is another question. The
introduction of similar reforms has partially failed in state litigation, mainly because
rules cannot suffice in regulating proceedings. 65 Most times, the failure to organise
proceedings in a satisfying manner is due to the parties and their counsel, rather than
to the applicable rules. 66 This is why, in the context of state litigation, the principle of
proportionality, of which expedited procedures are an application, has been
buttressed by other principles directed at parties and judges, such as party
cooperation and procedural good faith ( loyauté procédurale ). 67 Unsurprisingly, two
commentators have rightly noted:

Nowadays, parties tend to submit extensive files and voluminous attachments to


the arbitrators far in excess of the amount of material they would produce in
state court. Because arbitrators, unlike state judges, have a reputation to lose,
and because compensation schemes for arbitrators tend to foster a more
thorough approach, arbitral tribunals are nowadays often expected to review
lengthy submissions and countless binders of attachments, despite the fact that,
in most circumstances, the case could have been presented in a shorter and more
precise manner without sacrificing quality. 68

Were Brian Garth and Yves Dezalay right in remarking that the arrival of large firms
within the arena of international commercial arbitration would transform it into
ordinary litigation? 69 Whatever the correct answer may be, this type of question
highlights the weakness that lies in institutional arbitration as it has come to be
understood. While, from the perspective of states, international arbitration (whether
or not administered by institutions) is still seen as a purely contractual undertaking by
which the parties agree to exclude the jurisdiction of state courts to the benefit of
private adjudicators, arbitral institution have in reality come to operate well beyond
this private dimension and in a way that has become similar to the functioning of
state courts. 70 The sole fact of offering an expedited procedure may in this case not
be enough to avoid the troubles that affect public justice (exorbitant costs, lengthy
proceedings, etc.) and which could jeopardise the lasting success of international
arbitration as a means of resolving international disputes.

Conclusion

Expedited procedures are a tool allowing parties to have access to a procedure that
suits the complexity of their case. The presence of such tools in a set of arbitration
rules is more efficient than having to negotiate a fast-track procedure directly into
parties’ arbitration agreements. It is, however, hard to say whether the changes
implemented by ICC should be received with enthusiasm or scepticism. In a way, they
do offer an effective tool to constrain the duration of arbitral proceedings. However,
they still allow room for adversarial strategies that could slow down any arbitration.
While summary judgments, expedited procedures, case management techniques, and
<page_81> electronic means of administering proceedings and acquiring evidence are
all useful tools, there are other important areas where action is needed. These include
checking the availability of arbitrators, 71 who may have overly busy schedules, and
regulating counsel’s conduct and strategies. These areas, however, can hardly be
tackled by arbitral tribunals alone, as they require strong support and strict guidelines
from the institution administering the proceedings. It is in this respect that ICC should,
and most certainly will, be able to shine. The way in which arbitral institutions will
handle these problems will have an everlasting impact on the longevity of
international commercial arbitration.
1
Fabrizio Marrella, ‘L’arbitrage à Venise (XIIe-XVIe siècles)’ [2002] Rev. arb. 263 at 284.

2
The expedited procedure formed part of the amendments to the ICC Arbitration Rules
that were adopted by the ICC Executive Board at its meeting on 20 October 2016 in
Bangkok.

3
The provision was contained in Article 20 of the 1955 ICC Rules. See Florian Grisel,
Emmanuel Jolivet & Eduardo Silva Romero, ‘Aux origines de l’arbitrage commercial
contemporain: l’émergence de l’arbitrage CCI (1920–1958)’ [2016:2] Rev. arb. 403 at 432–
433 (suggesting that the increased duration of proceedings may be related to the
growing number of procedural objections in ICC awards rendered after 1945).

4
Michael Mustill, ‘Comments on Fast-Track Arbitration’ (1993) 10:4 J. Int’l Arb. 121 at 122.

5
Ben Giaretta, ‘Project Management in International Arbitration’ (2016) 3 McGill Journal
of Dispute Resolution 66 at 67 (the author emphasises that time and costs are always
to be compared with the quality of the decision reached by the tribunal).

6
Klaus Peter Berger, ‘The Need for Speed in International Arbitration’ (2008) 25:5 J. Int’l
Arb. 595 at 595.

7
Ibid at 596. For an illustration, see Benjamin G. Davis, ‘Fast-Track Arbitration and Fast-
Tracking Your Arbitration’ (1992) 9:4 J. Int’l Arb. 43; Moses Silverman, ‘The Fast-Track
Arbitration of the International Chamber of Commerce’ (1993) 10:4 J. Int’l Arb. 113 (both
discussing two ICC arbitrations where the parties had agreed that the award was to
be rendered two months after the introduction of the request for arbitration).

8
Antonias Dimolitsa, ‘Notes on Expedited ICC Arbitration Procedure’ (2002) 13:1 ICC ICA
Bull. 29 at 32; Anne Marie Whitesell, ‘The 1998 ICC Rules of Arbitration Today’ in Gerald
Aksen et al., eds., Global Reflections on International Law, Commerce and Dispute
Resolution, Liber Amicorum in honour of Robert Briner (Paris: ICC Publishing, 2005) 919
at 924. See Article 39, 2017 ICC Rules: ‘1. The parties may agree to shorten the various
time limits set out in these Rules. Any such agreement entered into subsequent to the
constitution of an Arbitral Tribunal shall become effective only upon the approval of
the Arbitral Tribunal.2. The Court, on its own initiative, may extend any time limit
which has been modified pursuant to Article 39(1) if it decides that it is necessary to
do so in order that the Arbitral Tribunal or the Court may fulfil their responsibilities in
accordance with these Rules.’

9
See e.g. ICC Commission Report, Controlling Time and Costs in Arbitration, 2d ed.
(Paris: ICC, 2012).

10
Andrea Carlevaris, ‘L’accélération des procédures arbitrales’ in Stefano Azzali et al.,
L’arbitre international et l’urgence (Bruxelles: Bruylant, 2014) 159 at 165.

11
The Swiss Rules of International Arbitration were among the first to innovate on this
front. See Matthias Scherer, ‘New Rules of International Arbitration in Switzerland’
(2004) 4 Int. Arb. Law Rev. 119 at 123–124. The expedited procedure is now dealt with
in Article 42 of the 2012 version of the Swiss Rules of International Arbitration. It is
worth noting that the procedure is not anchored to urgent situations and that it will
apply automatically when claims do not exceed a certain monetary value (namely, 1
million Swiss francs).

12
Gary Born, International Commercial Arbitration (Alphen aan den Rijn: Kluwer Law
International, 2014) 2306, emphasis added.

13
Rule 5.1, 2016 SIAC Rules: ‘Prior to the constitution of the Tribunal, a party may file an
application with the Registrar for the arbitral proceedings to be conducted in
accordance with the Expedited Procedure under this Rule, provided that any of the
following criteria is satisfied:a. the amount in dispute does not exceed the equivalent
amount of S$6,000,000, representing the aggregate of the claim, counterclaim and any
defence of set-off;b. the parties so agree; orc. in cases of exceptional urgency.’ See
John Savage & Simon Dunbar, ’SIAC Arbitration Rules, Rule 5 [Expedited Procedure]’ in
Loukas A. Mistelis, ed., Concise International Arbitration (Alphen aan den Rijn: Kluwer
Law, 2016) 774 at 775 (clarifying that the criteria are not cumulative; while the authors
refer to the 2010 rules, the criteria in question were left untouched in the 2016
version). See however Christopher Boog & Julie Raneda, ‘The 2016 SIAC Rules: A State-
of-the-Art Rules Revision Ensuring an Even More Efficient Process’ (2016) 34:3 ASA Bull.
548 at 509 (according to the authors, the fact that the monetary value of the claims
stays under 6 million SGD is not sufficient per se; the interested party also needs to
show that the opposing party has agreed to the expedited procedure or that the case
is an exceptionally urgent one).

14
Cf. Article 41.1, 2013 HKIAC Rules.

15
Article 9A, 2014 LCIA Rules. See Maxi Scherer, Lisa Richman & Rémy Gerbay,
Arbitrating under the 2014 LCIA Rules: A User’s Guide (Alphen ann den Rijn: Kluwer
Law, 2015) 136 (‘Article 9A ... offers the parties the possibility to expedite the
formation of the Arbitral Tribunal in order to seek urgent relief (including, but not
limited to, interim and conservatory relief) from the Tribunal that will ultimately be
called upon to decide the merits of the dispute’).

16
Article 22(1)(ii), LCIA Rules.

17
http://www.sccinstitute.com/about-the-scc/news/2016/the-new-scc-2017-arbitration-
rules-now-public/

18
Article 43, 2017 SCC Rules for Expedited Arbitrations.

19
Article 6, 2017 SCC Rules for Expedited Arbitrations. The same goes for the answer to
the request, which shall be treated as a statement of defence (Article 9).

20
Article 42(1) 2017 SCC Rules for Expedited Arbitrations.
21
Cf. Jeff Waincymer, Procedure and Evidence in International Arbitration (Alpheen aan
den Rijn: Kluwer Law International, 2012) at 420–421.

22
Cf. 2014 LCIA Rules, Article 9(A)(1), emphasis added: ‘In the case of exceptional
urgency, any party may apply to the LCIA Court for the expedited formation of the
Arbitral Tribunal under Article 5’; Cf. 2017 SCC Rules for Expedited Arbitrations, Article
24(2): ‘In all cases, the Arbitrator shall conduct the arbitration in an impartial, efficient
and expeditious manner, giving each party an equal and reasonable opportunity to
present its case, considering at all times the expedited nature of the proceedings’. See
the observations in Irene Welser & Christian Klausegger, ‘Fast Track Arbitration: Just
Fast or Something Different?’ (2009) Austrian Yearbook on International Arbitration
259 at 260. See also Christopher Boog, ‘Swiss Rules of International Arbitration – Time
to Introduce an Emergency Arbitrator Procedure?’ (2010) 28:3 ASA Bull. 462 at 473. See
also Rule 5.1, SIAC Rules, and Article 41.1, HKIAC Rules, which provide that parties can
apply for expedited procedures in case of urgency, regardless of the value of the
claims and counterclaims.

23
Cf. Alain Redfern & Martin Hunter, International Arbitration (Oxford: Oxford University
Press, 2015) 362. See also for an overview Charles Jarrosson & Cécile Chainais,
‘L’urgence avant la constitution du tribunal arbitral’ in Stefano Azzali et al., L’arbitre
international face à l’urgence (Brussels: Bruylant, 2014) 61.

24
For an overview, see Sébastien Besson, ‘Les mesures provisoires et conservatoires
dans la pratique arbitrale’ in Stefano Azzali et al., L’arbitre international et l’urgence
(Bruxelles: Bruylant, 2014) 37.

25
See supra note 13. It is preferable to consider monetary value a sufficient ground for
invoking an expedited procedure in light of the above discussion on the principle of
proportionality.

26
For the United Kingdom, see Rupert Jackson, Review of Civil Litigation Costs – Final
Report (London, December 2009) 31 (the principle of proportionality, which was
implemented with the Woolf Reforms, is formulated as follows: ‘Procedures and cost
should be proportionate to the nature of the issues involved’). For a Canadian
perspective, see Antoine Guilmain, ‘Sur les traces du principe de proportionnalité’
(2015) 61:1 RD McGill 87. See also Article 18 of Quebec’s Code of Civil Procedure: ‘1. The
parties to a proceeding must observe the principle of proportionality and ensure that
their actions, their pleadings, including their choice of an oral or a written defence,
and the means of proof they use are proportionate, in terms of the cost and time
involved, to the nature and complexity of the matter and the purpose of the
application.2. Judges must likewise observe the principle of proportionality in
managing the proceedings they are assigned, regardless of the stage at which they
intervene. They must ensure that the measures and acts they order or authorize are in
keeping with the same principle, while having regard to the proper administration of
justice.’

27
For a discussion, see Adrian Zuckerman, On Civil Procedure (London: Sweet &
Maxwell, 2013) at 12–17. See also ibid at 17 (‘Legal services are expensive. The more
complex and protracted the litigation process is, the greater the demand on the
parties’ resources. Party control over costs is limited because of the need to respond
to the opponent’s strategy.’).

28
Article 30, 2017 ICC Rules: ‘1. By agreeing to arbitration under the Rules, the parties
agree that this Article 30 and the Expedited Procedure Rules set forth in Appendix VI
(collectively the ‘Expedited Procedure Provisions’) shall take precedence over any
contrary terms of the arbitration agreement.2. The Expedited Procedure Rules set forth
in Appendix VI shall apply if:a) the amount in dispute does not exceed the limit set
out in Article 1(2) of Appendix VI at the time of the communication referred to in
Article 1(3) of that Appendix; orb) the parties so agree.3. The Expedited Procedure
Provisions shall not apply if:a) the arbitration agreement under the Rules was
concluded before the date on which the Expedited Procedure Provisions came into
force;b) the parties have agreed to opt out of the Expedited Procedure Provisions;
orc) the Court, upon the request of a party before the constitution of the arbitral
tribunal or on its own motion, determines that it is inappropriate in the circumstances
to apply the Expedited Procedure Provisions.’

29
Article 30(3)(b), 2017 ICC Rules.

30
Article 30(3)(c), 2017 ICC Rules. This is also the case under the 2016 SIAC Rules (see
Rule 5.1). See Boog & Raneda, supra note 13 at 600. See also Rémy Gerbay, The
Functions of Arbitral Institutions (Alphen aan den Rijn: Kluwer Law, 2016) at 61
(emphasising that institutions will generally leave themselves a degree of discretion to
determine whether expedited rules should apply to a particular case).

31
Article 1(4), Appendix VI, 2017 ICC Rules.

32
Ibid (in fine).

33
Article 30(3)(a), 2017 ICC Rules.

34
Article 30(2)(a), 2017 ICC Rules. The amount will be determined after the first round of
pleadings has been received by the Secretariat (i.e. after a claimant’s request for
arbitration (Article 4) and respondent’s answer (Article 5)). According to the 2015 ICC
statistics, cases below the US$ 2 million cap account for 32 per cent of ICC’s yearly
caseload. In 2010, the figure was 35.2 per cent, and in 2005, the percentage of these
disputes was much higher (41.1 per cent). See 2005, 2010 and 2015 statistical reports in
the ICC Dispute Resolution Library, www.iccdrl.com.

35
Article 30(2)(b), 2017 ICC Rules.

36
This is not a rare occurrence. According to the 2015 ICC statistics, 7.1 per cent of the
cases submitted in 2015 had no quantified value. Carlevaris, supra note 10 at 170.

37
Jason Fry, Simon Greenberg & Francesca Mazza, The Secretariat’s Guide to ICC
Arbitration (Paris: ICC, 2012) at 41. These difficulties can be exacerbated in multiparty
arbitrations.

38
Articles 2(1) and 2(2), Appendix VI, 2017 ICC Rules.
39
Article 3(1), Appendix VI, 2017 ICC Rules.

40
Article 3(2), Appendix VI, 2017 ICC Rules.

41
Article 3(3), Appendix VI, 2017 ICC Rules.

42
Article 4, Appendix VI, 2017 ICC Rules.

43
Ibid.

44
Charles Jarrosson, ‘Le statut juridique de l’arbitrage administré’ [2016:2] Rev. Arb. 445
at 453.

45
Born, supra note 12 at 3572.

46
US No. 520, Encyclopaedia Universalis S.A. (Luxembourg) v Encyclopaedia Britannica,
Inc. (US), United States Court of Appeals, Second Circuit, Docket No. 04-0288-cv, 31
March 2005, (2005) 30 Y.B. Comm. Arb. 1136 at 1140. See generally: Sigvard Jarvin,
‘Irregularity in the Composition of the Arbitral Tribunal and the Procedure’ in
Emmanuel Gaillard & Domenico Di Pietro, eds., Enforcement of Arbitration Agreements
and International Arbitral Awards – The New York Convention in Practice (London:
Cameron May, 2008) 729; Fabien Gélinas, ‘Le contrôle de la sentence pour défaut de
conformité de la procédure aux règles applicables : quelques questions’ in Sylvette
Guillemard, ed., Mélanges en l’honneur du professeur Alain Prujiner (Montreal: Yvon
Blais, 2011) 143.

47
Patricia Nacimiento, ‘Article V(1)(d)’ in Nicola Christine Port et al., eds., Recognition
and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York
Convention (The Hague: Kluwer Law International, 2010) 281 at 289 (‘an irregularity in
the composition process does not necessarily lead to a refusal of enforcement of the
award under Article V(1)(d) if a party later (tacitly) consents to the composition of the
arbitral tribunal’); Switzerland No. 42, X AG v Y AS, Bundesgerichtshof, 4 October 2010,
(2011) 36 Y.B. Comm. Arb. 340 at para 51 (‘According to the principle of good faith and
the prohibition of abuse of procedure, formal objections that could have been raised
at an earlier procedural stage may not be raised later in case of an unfavorable
outcome ... This principle applies also in respect of the reliance on procedural law
grounds for refusal under the Convention that were not timely raised already in the
arbitration (the so-called preclusion effect …).’).

48
AQZ v ARA, [2015] SGHC 49.

49
Although the claim in this case was brought under Article 34(2)(a)(iv) of the 2006
UNCITRAL Model Law on International Commercial Arbitration, the rationale is the
same, as the provisions are nearly identical.

50
For an analysis of French law, see Jarrosson, supra note 44 at 453 (pointing out that
where the parties have derogated from rules that are seen by the institution as
mandatory, causing said institution to refuse to administer the arbitration, we are in
presence of an ad hoc arbitration). See also Tribunal de grande instance de Paris, 22
July 2010, Société Samsung, (2010) Rev. arb. 571 (Annot. Jean-Baptiste Racine).

51
AQZ v ARA, § 130. The contract between the parties was concluded before the entry
into force of the 2010 SIAC Rules (ibid., § 3).

52
Article 5.1.a 2010 SIAC Rules (‘Prior to the full constitution of the Tribunal, a party may
apply to the Centre in writing for the arbitral proceedings to be conducted in
accordance with the Expedited Procedure under this Rule where any of the following
criteria is satisfied: (a) the amount in dispute does not exceed the equivalent amount
of S$5,000,000, representing the aggregate of the claim, counterclaim and any set-off
defence …‘).
53
Ibid., §125.

54
Ibid., § 132.

55
Cf. Article 1.2, 2010, 2013 and 2016 SIAC Rules. It should be noted that the 2016 version
of the SIAC Rules features a new provision, which clarifies that the expedited
procedure will prevail over any contrary terms of the arbitration agreement (Rule 5.3,
2016 SIAC Rules, ‘By agreeing to arbitration under these Rules, the parties agree that,
where arbitral proceedings are conducted in accordance with the Expedited Procedure
under this Rule 5, the rules and procedures set forth in Rule 5.2 shall apply even in
cases where the arbitration agreement contains contrary terms.’).

56
Carlevaris, supra note 10 at 171 (commenting on the 2013 SIAC Rules).

57
Jarrosson, supra note 44 at 453.

58
Neal C Tale, ‘Why the Expansion of Judicial Power?’ in Neal C Tale & Torbjörn Vallinder,
eds., The Global Expansion of Judicial Power (New York: New York University Press,
1995) 26 at 28.

59
Alec Stone Sweet, ‘Judicialization and the Construction of Governance’ in Martin
Shapiro & Alec Stone Sweet, eds., On Law, Politics, and Judicialization (Oxford: Oxford
University Press, 2002) 55 at 71 (‘The ‘judicialization of dispute resolution’ is the
process through which a [triadic dispute resolution] mechanism appears, stabilizes,
and develops authority over the normative structure governing exchange in a given
community.’).

60
Cf. Andrea Marco Steingruber, Consent in International Arbitration (Oxford: Oxford
University Press, 2012) 329 (‘Arbitration should be reconciled with its jurisdictional
side, which is as important and practically relevant as its contractual nature ... as it is
not fully settled whether arbitration is of a contractual, jurisdictional, or mixed nature,
one should not unduly favour the contractual side over the jurisdictional element.’).

61
Alec Stone Sweet & Florian Grisel, ‘The Evolution of International Arbitration:
Delegation, Judicialization, Governance’ in Walter Mattli & Thomas Dietz, eds.,
International Arbitration and Global Governance: Contending Theories and Evidence
(Oxford: Oxford University Press, 2014) 22 at 32.

62
See Rémy Gerbay, ‘Is the End Nigh Again? An Empirical Assessment of the
Judicialization of International Arbitration’ (2014) 25 The American Review of
International Arbitration 223 at 230 (‘[judicialization is] a phenomenon by which
international arbitration procedure increasingly resembles domestic litigation, as a
result of an increase in procedural formality/sophistication and litigiousness’); Cristina
Ioana Florescu, ‘Excessive Judicialization – An Obstacle to Efficiency in Arbitration’ in
Alexander J. Belohlavek et al., eds., Czech and Central European Yearbook of
Arbitration (Huntington, New York: Juris Publishing, 2015) 28. See also Günther J.
Horvath, ‘The Judicialization of International Arbitration’ in Stephan Michael Kröll et
al., ed., International Arbitration and International Commercial Law: Synergy,
Convergence and Evolution – Liber Amicorum Eric Bergsten (Alphen aan den Rijn:
Kluwer Law International, 2011) 251 at 259; Arthur W. Rovine, ‘Fast-Track Arbitration: A
Step Away From Judicialization of International Arbitration’ in Richard B Lillich &
Charles N Brower, eds., International Arbitration in the 21st Century: Towards
‘Judicialization’ and Uniformity? (Irvington, New York: Transnational Publishers, 1994)
45 at 49.

63
See Giorgio Bernini, ‘Flexibility or Rigidity?’ in Julian D.M. Lew & Loukas A. Mistelis,
eds., Arbitration Insights (The Hague: Kluwer Law, 2007) 47 at 49; Klaus Sachs, ‘Time
and Money: Cost Control and Effective Case Management’ in Loukas A. Mistelis &
Julian D.M. Lew, Pervasive Problems in International Arbitration (Alphen aan den Rijn:
Kluwer Law International, 2006) 103 at 112.

64
In this respect, it is worth noting that some institutions, such as the SCC, do offer
rules allowing applications for summary proceedings. See e.g. Article 39 of the 2017
SCC Arbitration Rules. See also Judith Gill, ‘Applications for the Early Disposition of
Claims in Arbitration Proceedings’ in Albert Jan van den Berg, ed., 50 Years of the New
York Convention, ICCA Congress Series No. 14 (Alphen aan den Rijn: Kluwer Law, 2009)
513 at 516ff. (describing the 2006 amendments of the 2006 ICSID Arbitration Rules,
implementing a provision dealing with applications for the early disposition of claims
‘manifestly without legal merit’). See Article 41(5), 2006 ICSID Arbitration Rules. For an
analysis of the position of tribunals sitting in England see Philip Chong & Blake
Primrose, ‘Summary Judgement in International Arbitrations Seated in England’
(Arbitration International, forthcoming at the time of writing); see also Ned Beale, Lisa
Bench Nieuwveld & Matthijs Nieuwveld, ‘Summary Arbitration Proceedings: A
Comparison Between the English and Dutch Regimes’ (2010) 26:1 Arbitration
International 139.

65
Piero Calamandrei, Procedure and Democracy (New York: New York University Press,
1956) 14 (‘The judicial process is given its typical physiognomy not by the law of
procedure but by the habit of mind of those who apply it. The written law is little
more than a frame …’).

66
Cf. Giaretta, supra note 5 at 73 (emphasising that the way in which the arbitrators will
act, as well as the decisions they will make to organise the proceedings, can have
negative consequences on the costs and duration of the arbitration).

67
For an overview see Jacques van Compernolle, ‘Quelques réflexions sur un principe
émergeant: la loyauté procédurale’ in Mélanges en l’honneur du Professeur Serge
Guinchard (Paris: Dalloz, 2010) 413.

68
Welser & Klausegger, supra note 22 at 260.

69
Brian Garth & Yves Dezalay, Dealing in Virtue (Chicago: Chicago University Press, 1996)
54ff.

70
Cf. Gerbay, supra note 30 at 185ff.

71
Cf. Article 11(2), ICC Rules (‘Before appointment or confirmation, a prospective
arbitrator shall sign a statement of acceptance, availability, impartiality and
independence.’).