Introduction

With the development of communications technology permitting almost instantaneous communication between international business actors throughout the world, there is growing pressure for rapid decision-making. This pressure for rapidity requires decision-makers to come quickly to sound judgments in difficult and complex matters. To "get it right" and - more importantly - "get it right the first time" is a tremendous constraint in a world of high uncertainty and risk.

As with all international actors, the International Court of Arbitration, through its supervision of increasingly complex international arbitrations, has felt this development. Increasingly, it is not sufficient that the award be rendered pursuant to an irreproachable procedure, but that said award be rendered as rapidly as feasible taking into account the specific circumstances of each case. Technological improvements and staff increases at the ICC have been natural accompaniments of the recognition of the growing primacy for parties of speed as well as accuracy in international arbitration.

With this acceleration of the speed of the arbitral process, it may be asked what are the natural incompressible limits to speed. The concern is the following: at what point do concerns for due process come into conflict with this need for rapidity? The standard approaches of reducing the number of hearing days, dispensing with hearings altogether, simplifying matters through settlement negotiations in parallel with the arbitral process or pre-hearing meetings to separate the wheat from the chaff, limiting the number and types of submissions or the time for submissions, accelerating nomination procedures of Arbitral Tribunals, and moving to Sole Arbitrators to eliminate the time-related risks of collegial decision-making are methods that have been used to stimulate a rapid resolution of disputes. In appropriate circumstances, each of these approaches, separately or combined, can reduce the time necessary to reach an enforceable award.

In administering hundreds of international arbitration cases at any one time, the ICC Court has been able to take a proactive stance in encouraging Arbitral Tribunals to come to their decisions as fast as practicable. In certain cases, it is noted that the speed is wholly dependent on the parties' will to proceed. In other cases, there are opportunities for the Arbitral Tribunal to seize to keep the case on track, and the Court encourages such actions through its policy of remuneration - decisions on arbitrator's fees take into account time spent, complexity, and rapidity - and day to day supervision of each case.

To assist understanding of what is attainable in international arbitration, this series of articles written in collaboration with the parties, their counsel, and the Chairman of the Arbitral Tribunal involved, highlights an example of just how little time can be needed to resolve a difficult dispute. In an environment of instantaneous communications, with the organization by the parties, the Arbitral Tribunal, and the Court of their concerted efforts in the same direction to resolve the dispute within the time-limit, the example shows how justice can be done, be seen to be done, and be seen to be done rapidly.

I. Setting the scene

This past winter two related, complicated, multimillion dollar arbitrations involving three parties were introduced which required - and the emphasis should be placed on required - the final award to be rendered within approximately two months of the introduction of the Requests for Arbitration. Several efforts to characterize this type of accelerated dispute resolution have been bandied about - "hostile tender offer" arbitration (analogizing from motion practice in the tender offer setting), "chocolate thunder" or "slam dunk" arbitration (analogizing from sports), or "lightning fa arbitration, are some colloquial examples - but the consensus term would appear to be "fast-track arbitration".

The fast-track arbitrations were two of four related arbitrations between the parties introduced between late October and mid­ November 1991. Two of the arbitrations were introduced under general arbitration clauses while the two fast-track arbitrations were introduced under special fast-track provisions for certain types of disputes described in the arbitration clauses. The latter provisions required the award to be rendered by December 30, 1991.

The subject matter of these cases was complex price redetermination for a commodity product. The parties were related but not identical. There were numerous crossmotions regarding the consolidation of the fast-track cases with the two other cases. Questions of jurisdiction were raised. The independence of one of the party­nominated arbitrators was challenged.

Diametrically opposed views were put forward as to the significance of the tight fast-track time­limits. In sum, there were the classic characteristics of difficult arbitral proceedings with the added pressure of an extremely tight deadline.

II. The increasing complexity

The Requests for Arbitration told a very detailed story regarding the nature of the disputes that had arisen between the parties. The first crossmotions as to consolidation or suspension of some of the cases were submitted by Claimants in two of the cases. The Requests for Arbitration were notified to the respective Defendants in each matter at the same time as the statement of independence was requested for the coarbitrator proposed by the Claimant in each of the four matters.

As the 30 day time-limit under Article 4 of the Rules for filing Answers to the Requests for Arbitration came to an end for three of the four cases, each of the Defendants submitted its full Answer. These Answers were detailed submissions including objections to jurisdiction. New crossmotions as to suspension and consolidation of some or all of the four cases were presented. Arbitrators were nominated by Defendant parties in some cases but not others. Of the arbitrators nominated, one was the same individual in all four cases proposed by different parties and his statements of independence contained certain qualifications. Parties' comments, therefore had to be sought pursuant to Article 2.7 of the ICC Rules. Responses started to be received ranging from a formal objection by one party, the formal support of the nominating party, and a muted response by the third.

By December 5, 1991, only the Answer in the last of the cases was still outstanding, and it was due by December 18, 1991. That last case was however, the second of the fast-trac arbitrations. The level of complexity was increasing geometrically with the crossmotions on consolidation and suspension, the objections to a coarbitrator proposed in all four cases, as well as the absence of a proposal of a coarbitrator by the Defendant in one of the non-fast-track and one of the fast-track cases. Moreover, time was running out on the December 30, 1991 deadline for the issuance of final awards in the two fast-track cases.

III. Acceleration

When everything starts to unravel, what do you do? The need for acceleration of the procedure was clear. Thus, on December 5, 1991, the Secretariat set a December 9, 1991 deadline for the parties in all four cases to respond to the outstanding myriad proposals of the other parties regarding consolidation and suspension as well as provide their views on having a common Chairman for the four cases. In the event of an agreement in any two cases by the three parties as to consolidation, they were to advise the Secretariat by December 10, 1991 of the names of the coarbitrators selected in the consolidated matters. Finally, as there were so many unresolved matters and only twenty-five days left for the completion of the first fast-track arbitration (and only twelve days for the second fast-track case where the response was still to be received in two weeks), the Secretariat broached with the parties the question of the extension of the stipulated time-limit for a reasonable period. Advice on this was also invited from the parties by December 9, 1991.

On December 9, 1991, the parties all filed their comments. No one agreed with anyone else's proposal on consolidation and/or suspension of some or all of the matters. Jurisdictional objections were emphasized by Defendants. As a corollary, no changes of the proposals of party­nominated arbitrators occurred. The parties were unable to agree whether the Chairman of the Arbitral Tribunal should be the same in each case. The positions ranged from acceptance of the principle of the same Chairman in all four matters to the request that different Chairmen be appointed for the fast-track proceedings as opposed to the general arbitration clause proceedings. Finally, diametrically opposed views on the December 30, 1991 deadline were advanced, with one party insisting that December 30, 1991 was a definite deadline, while the others were more flexible in considering it as a goal.

It was clear that it was essential for the ICC Court to ensure that the Arbitral Tribunals were constituted in time to allow an award to be rendered within the contractually-required time limit.

On December 10, 1991, the Secretariat recorded the state of play in the four cases as to jurisdictional objections, consolidation, the Chairman, and the deadline. Turning to the next issue concerning the constitution of the Arbitral Tribunal, the Secretariat sought to accelerate the parties' submission of comments as to the party­ nominee with the qualified statement of independence. All comments were encouraged to be submitted by December 13, 199 1 (Friday the 13th as it occurred). Further, for the parties that had not proposed a coarbitrator, the Secretariat warned them of the risk of the Court appointing an arbitrator on their behalf.

At the ICC, between the 10th and the 12th, the Secretariat discussed with the Chairman of the ICC Court the possibility of submitting these cases to him early as December 13, 1991 as urgent matters under Article 1.3 of the ICC Rules or, if they were not yet ripe, at one of the Court sessions on December 17 or 18, 1991. Broad outlines of strategy and various options were discussed. What should be done with regard to the jurisdictional objections in each case? Where consolidation was possible in the discretion of the Court, based on what was so far submitted, should this be done? If the common coarbitrator against whom an objection had already been made continued to be the subject of objections in all four cases, what approach should be taken? What if a new coarbitrator was proposed in replacement who caused similar difficulties? What if this occurred in some as opposed to all of the cases? What about the Chairmen of the Arbitral Tribunals? What if coarbitrators were different or the same in each of the four cases? How should the Court proceed on the fast-track cases? Options were examined consistent with the Court's practice of preparing for the next step of the procedure. Draft notes on the cases were prepared and circulated based on the evolving situation.

On Friday, December 13, 1991, all parties' comments were received regarding the party­ nominee who had been challenged. Formal objections were made to the party-nominee by the non-nominating party in each of the four cases. The nominating party maintained support for the proposed arbitrator. However, on the same day, the party-nominated arbitrator in question wrote a further letter supporting his nomination and detailing additional points. The parties' comments on this submission therefore had to be sought. These were invited by the same day or at the latest on Monday. Finally, the party who had not nominated a coarbitrator made its proposals. However, one of the proposals for the first fast-track case was to be the still unknown coarbitrator to be proposed on December 18, 199 1 in the second related fast-track case.

On December 16, 1991, final comments regarding the party-nominee with the qualified statement of independence were received. However, new proposals from two of the three parties regarding suspension of some of the matters came in with a suggestion of a telephone conference. The Secretariat sought the third party's comments within one day to know whether all or some cases would stop or proceed.

On December 17, 1991, the third party did not agree to the suspension requests. All but one of the cases (the last fast-track where the Answer was due the next day) were now ripe for decisions to be made by the Court. During the next day's Court session, the Answer in the last of the fast-track cases arrived by fax. Objections to jurisdiction were raised in said submission. The proposal of the outstanding coarbitrator to be named in the two related fast-track cases was received as well as telephonic confirmation of his independence, followed by receipt of his unqualified statement of independence.

IV. Setting in motion the two fast-track arbitrations

As all four matters were ripe for urgent decision, the Secretariat and the Chairman of the Court met at the end of the day to examine them. As notified to the parties the same day, the ICC Court, through its Chairman under the powers conferred on him to act on urgent matters under Article 1.3 of the ICC Rules, took the appropriate decisions to set the arbitrations in motion.

Thus, the Chairman decided on behalf of the Court under Article 8.3 of the ICC Rules that there was a prima facie agreement to arbitrate between the parties to each of the matters sufficient to permit the arbitrations to proceed. Where the parties had not agreed to consolidate, the Chairman also decided that the fast-track and the non-fast-track arbitrations should not be joined (Article 13 of the Internal Rules). The Chairman did not confirm the party nominee against whom objections had been made and granted one day for a new proposal of an independent coarbitrator. He confirmed the other independent coarbitrator. It appeared likely, based on the prior submissions of the parties, that the coarbitrators in the fast-track cases would be identical. The Chairman selected the National Committee to propose within one day the same Chairman for each of the Arbitral Tribunals in the fast-track cases. Finally, he confirmed the place of arbitration and fixed the advances on costs. The advances on costs were made payable within two days. In addition, the Chairman suggested to the parties a slight extension of the time-limit for nine days.

Similar decisions were taken in the non-fast track cases with longer time-limits being set.

In addition, the National Committee of the parties whose arbitrator had been refused was requested to have a nominee ready in case the parties in question did not put forward a new nominee with a clean statement of independence, so that an Arbitral Tribunal could be appointed by December 20, 1991.

Within the one day time-limit, a new coarbitrator was proposed and confirmed and the same Chairman was appointed for each fast­ rack case. As the advances on costs were paid within two days, the fi in the two fast-track cases were transmitted to the Arbitral Tribunals constituted on December 20, 1991.

As the short extension of the deadline (to January 8, 1992) suggested by the Chairman of the Court was accepted by the parties, the Arbitral Tribunals had 19 days to render their awards.

V. Terms of Reference and Award in eighteen days

The negotiation of the Terms of Reference and the conduct of the proceedings through to the drafting of the Final Award will be discussed by the Chairman of the Arbitral Tribunals and the parties below. The Secretariat was in daily contact with the Chairman of the Arbitral Tribunal in each fast-track case to keep abreast of developments and provide assistance if necessary. Suffice it to say that the Arbitral Tribunals first ordered all written submissions to be made by no later than December 30, 1991. The Terms of Reference were completed on December 27, 1991. They provided for the consolidation of the two fast-track cases as well as formal acceptance by the parties of the Arbitral Tribunal for the consolidated cases. The Terms of Reference were received at the Secretariat on December 28, 1991. The Terms of Reference contained, inter alia, a detailed presentation of the parties' respective positions as well as issues to be determined. On December 30, 1991, the Chairman of the Court took note that the Terms of Reference were in conformity with Article 13 of the ICC Rules. As the full advances on costs had been paid, the procedure continued.

A one-day hearing on the merits was held on January 2, 1992. Thirty-six hours later, the draft final award was received by the Secretariat. The Committee of the Court reviewed the draft and at its session of January 7, 1992, recommended approval of the draft final award pursuant to Article 21 of the Rules as well as the costs of the arbitration to be fixed under Article 20 of the ICC Rules. The Chairman of the Court followed these recommendations in making an Article 1.3 decision the same day, and the award was notified to the parties on January 7, 1992, one day before the expiry of the time-limit.

Shortly thereafter, apparently based on the fa track award, the two general arbitration clause cases were withdrawn.

VI. Points for consideration

The important points to be highlighted with respect to the above summary would be the following:

At no time did a party seek an extension of time to make its submissions. All deadlines were respected assiduously. Submissions were detailed, but to the point, demonstrating a high­level of advocacy and focus. The envelope of time, however, was extended by agreement by 9 days. Nineteen days were considered sufficient for the parties and the Arbitral Tribunal to complete all final pleadings, hold a hearing, draft the award, and for the Court to scrutinize, approve, and notify the award on the fast-track issues.

The procedure essentially worked on the basis of telefax, allowing for instantaneous communications followed up by international courier confirmation copy.

Particularly in the early stages, the unusually high level of complexity had to be managed by the Secretariat.

The timing of the cases becoming ripe for decision by the Court was the driving force as to whether the Chairman of the Court had to act under Article 1.3 or whether the decisions to be taken by the Court could be made at a regularly­scheduled session. In the absence of crossmotions on consolidation or qualified statements of independence, at least one of the matters, and possibly three, could have been submitted to the Court in early December. Further, the timing of the deadline made it necessary for the noting of the Terms of Reference under Article 1.3. If the schedule had been different, very little of the Court's decision­ making would have had to have been dealt with as an urgent matter by the Chairman of the Court.

The parties and the arbitrators were moving in the same direction to meet the deadline, though the parties' positions on the merits of the matters were aggressively fought. It appeared that no one would risk the consequences of not meeting the deadline, while ensuring that due process requirements were respected. It was clear that parties' tactical interests had to fa compliance with the time-limits for successful completion.

Aggressive management of the whole procedure at each stage was essential or the deadline would not have been met.

Constitution of the Arbitral Tribunal could have been accelerated by a joint submission of a Request for Arbitration and Answer or Defendant's submission of its Answer in less than the full 30 days. However, the former is rare and the latter even more unlikely in difficult cases. The parties could have agreed on a Sole Arbitrator, or agreed that they or the co-arbitrators select the Chairman, but, unless this occurred in a joint Request for Arbitration and Answer or during the period for the preparation of the Defendant's Answer, it is unlikely that the Chairman could have been appointed at an earlier date by any other means.

An important advantage was having a National Committee system in 60 countries which permitted a fallback position to be available to the Court to permit a rapid appointment of an independent Chairman and, in the event it became necessary, an independent co-arbitrator.

The circumstances of the relationship between the parties - whether a one-off contract that sours or part of a longer term relationship - may affect the efficacy of such time limits.

The time limits stimulated all participants to concentrate on assuring that the award be rendered on schedule. However, even without time limits, such a level of celerity should be possible if focus and intensity are maintained by all concerned.

All of the above essentially took place in about 70 days (80 in one case and 60 in the other). In a more simplified setting of one Claimant and one Defendant in a single arbitration, the periods might have been shorter. In any event, the need for prompt decision-making was satisfied with a final award rendered ahead of time and executed immediately.

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