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 procedure2 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 procedure10 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 3028 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 million34 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 reference39 – which means that new claims will be barred, in principle, after the constitution of the arbitral tribunal, unless the tribunal determines otherwise40 – 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.’).