Would a summary procedure improve the arbitral process? ICC Update
Earlier this year we asked whether a summary procedure would improve the arbitral process. The Stockholm Chamber of Commerce (SCC) had already introduced its summary procedure rules and we noted that, while the International Chamber of Commerce (ICC) did not have a specific summary procedure, an ICC tribunal arguably already had the power to order summary disposal under Art 22 of the ICC Rules 2017.
Clarification from the ICC
The ICC has recently clarified this very issue publishing guidance on the scope for 'immediate dismissal of manifestly unmeritorious claims or defences' under Article 22. The clarification comes in an amendment to its 'Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration' which states that in its existing format Article 22 provides for 'the expeditious determination of one or more claims or defences, on grounds that such claims or defences are manifestly devoid of merit or fall manifestly outside the arbitral tribunal's jurisdiction'. An application for such 'summary disposal' must be made as promptly as possible after the relevant claim or defence is filed. The note states that it is for the tribunal, in consultation with the parties, to determine whether or not a hearing is required clearly envisages that most applications will be dealt with on paper and that presentation of further evidence will be allowed only 'exceptionally.'
In the spirit of such determinations only being for claims which are manifestly without merit, the note anticipates that the tribunal will determined the matter as promptly as possible and produce a reasoned order or award in 'as concise a fashion as possible'. As such awards need to be scrutinised by the ICC, further time will be incurred in this process but the ICC will, in principle, do so within one week of receipt.
A welcome move
This clarification is welcomed in the context of moves towards more cost-effective and expeditious arbitration. It also enables the more robust decision-making that has been seen to be lacking from some tribunals for fear of challenges.
Given the busy schedules of all involved in the arbitral process, and despite their best intentions, it is unavoidable, and indeed necessary, that time will be incurred in summary disposal process; this is not a 'quick fix' emergency procedure. This said, even if this process takes several weeks, that has to be preferable to time and costs wasted on pursuing and defending a hopeless claim or defence. It also puts pay to game-playing using unmeritorious claims to cause delay or raise smokescreens which impact not only the arbitration but the integrity of the entire process.
It is almost inevitable that other international institutions will follow suit and, as we previously suggested, that such mechanisms could be incorporated into future amendments to national legislation.