A. INTRODUCTION: THE PERCEIVED NEED TO SIMPLIFY AND EXPEDITE

When, in a 2015 survey on improvements in international arbitration,1 the vast majority of interviewees laid emphasis on the necessity of a simplification of arbitral procedures, no one was surprised. Thus, 92% of the interviewees2 favored the inclusion of simplified procedures in institutional rules for claims under a certain value, with 33% in favor of making the procedure mandatory and 59% in favor of it being optional.3 Of the total number of interviewees, 94% suggested that simplified procedures would be suitable only where the amount in dispute did not exceed US$1 million, but 61% noted that fewer than 10% of their disputes would fall under this threshold.4

As these remarks show, the users’ criticism is not necessarily that, contrary to common wisdom, international arbitration is not cheap and fast. The assessment is more measured, as it does make a distinction in the users’ mind between claims that are complex, either from a legal or factual standpoint, and other claims that may justify a more simplified and expedited proceeding. The difficulty, however, is that the "other" claims are generally referred to as those involving a small amount in dispute, such that the two terms of the equation are unhelpfully qualitative on the one hand (complexity) and quantitative on the other (small amount in dispute).

Nor is there a clear definition of the concept of "expedited" proceedings or how it is distinct from other, similar concepts. In a 1993 article, commentators proposed to define the terms "fast-track arbitration," "expedited arbitration" and "accelerated arbitration," suggesting that they represented three basic clusters of accelerated arbitration: they defined "fast-track arbitration" as an "arbitration whereby the parties select a subset of disputes from the universe of potential disputes and agree that, if a dispute in this category arises, it will be resolved within a non-extendable time-limit"; an "expedited arbitration" was in turn defined as an "arbitration whereby the parties agree to have disputes under a contract resolved pursuant to the set of expedited arbitration rules of an institution"; and finally, an "accelerated arbitration" was defined as one "where the parties have a general arbitration clause and, once the dispute has arisen, it is of such urgency to have the decision that the arbitration proceeds at an ‘accelerated’ pace".5 These distinction efforts aside, arbitral practice and [Page10:] literature tend to indistinctly refer to "fast-track arbitration" and "expedited" arbitration or proceedings, the assumption always being that the full arbitral process must be compressed into a short period of time for a quicker resolution of the dispute.6 The concept is so broad that it has even recently captured, in certain institutional arbitral rules, procedures which technically do not involve an acceleration of the entire proceeding, but which aim at disposing of the case on a summary basis.7 Essentially, so long as the dispute is resolved fast, the characterisation of "expedited" seems to be justified.

The debate is not new. One of the first examples of "fast-track" arbitration is provided by the Panhandle case of 1992,8 which certain commentators have referred to as "perhaps the best known and most discussed fast-track arbitration case" decided under the Arbitration Rules of the International Chamber of Commerce ("ICC").9 In that case, the contract, which concerned long-term supply of natural gas, provided for the possibility of fast-track arbitration for disputes arising from price redetermination negotiations. In the course of the parties’ negotiations, it became clear that they were unable to reach an agreement concerning the price redetermination and consequently, arbitral proceedings were initiated. The tribunal in that case excluded from its consideration issues such as the validity of the contract which, under the contract, it was not authorised to determine on a fast-track basis, but did proceed on a fast-track basis in relation to the price determination, issuing an award two months after the request for arbitration had been submitted. In another prominent example of efficiency known as the Formula One Racing arbitration, where the parties agreed to a fast-track arbitration and briefed the matter within a very short period of time (between 25 and 31 December 1992), the tribunal issued an award within 48 hours of the hearing and the ICC International Court of Arbitration approved the award on the same day at an emergency session.10

It is noteworthy that the successful determination of these disputes on an expedited basis was the result of cooperative attitude between the parties and their counsel (with as much early involvement as needed by the ICC and the tribunal),11 something that cannot easily be replicated in all cases; to the contrary, recent practice shows the increasingly litigious character of the parties and their counsel, rendering international arbitration proceedings extremely burdensome, with almost systematic recourse to document production and adversarial cross-examination of witnesses, two procedural features that necessarily add to the cost and time of the arbitration, and further intensify its contentious nature.12

While certain institutions introduced expedited procedures as early as 1994 for the World Intellectual Property Organisation Arbitration and Mediation Center ("WIPO") and the China International Economic and Trade Arbitration Commission ("CIETAC"), and 1995 for the Arbitration Institute of the Stockholm Chamber of Commerce ("SCC"), in the years following the Panhandle and Formula One Racing cases, ICC began receiving requests from its users and national committees for some form of relief in the arbitration of small claims, particularly because its rules contained procedural safeguards which recalcitrant parties could exploit to cause delay and disruption.13 Accordingly, ICC convened a Task Force to explore ways to reduce the time and cost of arbitrations involving smaller claims. The Task Force (which comprised nearly 60 representatives from around [Page11:] the globe) faced great difficulty in reaching consensus on what constituted a "small claim," with suggestions varying from US$5,000 to US$5 million. It was also observed that small cases could turn on complex legal questions and had the potential to bear upon similar future cases. The Task Force, therefore, had to consider how to strike a careful balance between time and cost savings and quality control,14 and made several suggestions, two of which were considered at length, namely a special streamlined process to be administered in the ICC Court Secretariat in parallel with the regular ICC Rules, and non-binding guidelines for use in conjunction with the existing ICC Rules of Arbitration. As the special streamlined process would have ultimately strained the ICC Secretariat’s resources, the ICC Commission agreed upon non-binding guidelines.15 The Guidelines were purely optional and proposed the filing of complete pleadings at the claim and answer stages, the use of a sole arbitrator, and the use of specific procedures or time limits to encourage a speedy conclusion. Because ICC’s terms of reference were considered a hallmark of the institution, it was considered that they could not be dispensed with; however, the Guidelines suggested that the terms could be established over telephone or e-mail in order to accelerate the process.16 As a further time- and cost-reducing measure, in 2007 the ICC Arbitration Commission, in a report entitled "Techniques for Controlling Time and Costs in Arbitration," encouraged parties to consider including fast-track arbitration procedures in their arbitration clauses.17

Today, in the wake of the increasing regionalisation of international arbitration and the corresponding multiplication of arbitral institutions, it is not surprising that service related to international arbitration has given rise to increasing competition among institutions for attractiveness and appeal to the users.18 Efficiency, in this context, is key to the success of any arbitral institution. Thus, in response to user demand, there has been a notable trend among major arbitral institutions towards the provision of simplified procedures for expedited arbitration. In addition to ICC,19 SCC and WIPO, some of the major arbitral institutions that have adopted expedited procedures include: the Swiss Chambers’ Arbitration Institution ("SCAI"), the Singapore International Arbitration Centre ("SIAC"); the Hong Kong International Arbitration Centre ("HKIAC"), the International Centre for Dispute Resolution ("ICDR") of the American Arbitration Association, the Australian Centre for International Commercial Arbitration ("ACICA"), the German Institution of Arbitration/ Deutsche Institution für Schiedsgerichtsbarkeit e.v. ("DIS"), the Japan Commercial Arbitration Association ("JCAA"), and the Kuala Lumpur Regional Centre for Arbitration ("KLRCA"). Notably, however, the London Court of International Arbitration ("LCIA") has not provided for expedited procedures under its rules, although parties can apply for the expedited formation of the tribunal.20

Given this proliferation of rules designed at simplifying and expediting arbitration proceedings, a first question arises as to the extent to which the options proposed by arbitral institutions to the parties are comparable or differ, depending on the institutions’ practice or specificity; an examination of the expedited rules shows a number of key features common to all (A). A second question then arises as to the ways in which expedited procedure rules have been implemented in practice, and whether they raise any specific challenges (B).

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B. KEY FEATURES OF EXPEDITED PROCEDURES

Two points need to be considered as part of the key features of expedited procedure rules: the conditions for their application (1) and the content and mechanisms they have adopted to promote efficiency (2).

1. Conditions for the Application of Expedited Procedures

Whether or not expedited procedure rules will apply is determined by each institution, through separate, incorporated or supplementary rules. Institutions will also determine whether such rules should apply automatically, or whether parties should opt-in to have access to them. Finally, provision may be made for a fallback position so as to revert to the standard arbitration rules should the case appear to be more complex than anticipated. Each of these points will be briefly examined in turn.

a. Separate, Incorporated or Supplementary Rules

The SCC, one of the pioneering institutions as regards expedited procedures, has chosen to adopt a separate set of rules.21 Other institutions such as ACICA22, KLRCA23 and WIPO24 have likewise adopted a separate set of rules.

Certain institutions have chosen the same path, although the expedited rules they propose separately are designed to supplement their standard arbitration rules; as a result, in the absence of a specific rule, reference is made to the standard arbitration rule. This is the case, in particular, for DIS25 and ICDR.26

Other institutions, and notably ICC,27 have chosen to incorporate the expedited rules within the general set of their arbitration rules. This is also the case for Asian arbitral institutions such as SIAC,28 HKIAC,29 CIETAC30 and JCAA,31 as well as the SCAI.32

Finally, certain institutions have chosen a different policy altogether. The International Centre for Settlement of Investment Disputes ("ICSID"), in particular, adopted Rule 41(5) of its Arbitration Rules in 2006, so as to address clearly unmeritorious claims; to date, no further amendments have been made to the ICSID Arbitration Rules in relation to expedited procedures.33 LCIA, for its part, has chosen to not adopt any expedited procedure, while allowing a fast-track procedure under its rules.34 Thus, parties can apply for the expedited formation of the tribunal;35 further, 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.36

b. Opt-In or Automatic Application

To the extent the philosophy underlying expedited procedures is to simplify and accelerate the resolution of disputes that do not present an element of complexity, it is not surprising that some institutions have adopted rules that provide for an automatic application below a certain pecuniary threshold; in all other situations, notably where the amount in dispute exceeds that pecuniary threshold, these institutions nevertheless encourage expedited proceedings by allowing an opt-in mechanism. Thus, in the latest [Page13:] set of expedited procedures rules it has adopted, ICC has provided that these apply automatically to disputes involving a value below US$2 million.37 Likewise, SCAI applies a threshold of CHF 1 million,38 whereas the ICDR refers to the amount of US$250,000.39 In Asia, the JCAA refers to the value of the claimant’s claim(s) as not being more than YEN 20 million,40 while CIETAC refers to the amount in dispute not exceeding RMB 5 million.41

Other institutions have adopted an opt-in mechanism in all cases, which is either related to a pecuniary threshold — such as SGD 6,000,000 for SIAC,42 HKD 25,000,000 for HKIAC43 or AUD 5,000,000 for ACICA44 — or leaves it to the parties45 or the institution to determine whether the circumstances so justify, as is the case, notably, for the SCC.46

c. Fallback Provision

Because flexibility is key to international arbitration, it is important that the parties, the institution or the tribunals can maintain the possibility of reverting to a standard procedure in the event the dispute ends up being more complex than originally anticipated, or where a party’s request for an expedited proceeding is not appropriate. Thus, the 2016 SIAC Arbitration Rules allow a procedural swap if the Expedited Procedure is no longer suitable.47 Likewise, the 2017 SCC Rules for Expedited Arbitrations open the possibility of a standard arbitration where the complexity of the case, the amount in dispute and any other relevant circumstances so justify.48 The ICC similarly takes into account the circumstances of the case on the basis of which the ICC International Court of Arbitration may determine, at a party’s request or on its own motion, whether the Expedited Procedure is appropriate49 or, once set in motion, should be discontinued and the case conducted under the standard arbitration rules.50

2. Mechanisms Provided by Expedited Procedures

Because expedited procedures are designed to make arbitral proceedings more time and cost efficient, they generally contain a number of mechanisms, including procedural, which allow the institutions and the tribunals to handle the case more efficiently. These range from a referral of the case to a sole arbitrator, to the adoption of shorter timelines and faster case management tools, the option of non-reasoned awards, and the possibility of an early dismissal of the claim through summary proceedings. Each of these mechanisms will be examined in turn.

a. Referral of the Case to a Sole Arbitrator

In virtually all institutional rules, a first and key answer to issues of time and cost efficiency is to provide for a sole arbitrator as opposed to a three-member panel.

Where institutions have adopted specific expedited procedural rules, such as the SCC,51 ACICA,52 ICDR,53 JCAA54 or WIPO,55 the rules logically provide for a sole arbitrator to preside over the dispute. ICC has gone even one step further and imposed a sole arbitrator notwithstanding a contrary provision in the arbitration agreement.56 This rule is consistent with the general philosophy underlying the adoption of expedited procedure rules by ICC in 2017, providing that "[b]y 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") [Page14:] shall take precedence over any contrary terms of the arbitration agreement."57 It has been pointed out that this difference in approach underlies the tension between the need for arbitral institutions to uphold party autonomy and the need to ensure better efficiency through institutional control.58

For certain other institutions, the rule is less strict and a contrary agreement by the parties will be given effect, either when it is found in the arbitration agreement59 or, more broadly, when the parties are found to have agreed to a three-member panel.60 In what is a unique feature, the SIAC Rules have likewise provided a measure of flexibility, based on what the President of the Court determines to be appropriate in the circumstances of each case.61

b. Shorter Timelines and Faster Case Management

Expedited procedure rules generally provide for three types of procedural adjustments for the conduct of the arbitral proceedings: timetabling, case frontloading and allowing tribunals to decide the case based solely on written evidence. Each of these procedural tools will be examined in turn, before addressing one additional feature adopted by most institutions to accelerate not only the conduct of the proceedings, but also the issuance of the award.

i. Timetabling

Although it seems to be stating the obvious, no procedural efficiency may be gained without proper case management by the tribunal itself. As a result, expedited rules have adopted measures to accelerate certain specific milestones from the outset of the proceedings.

For example, Article 29 of the 2017 SCC Rules for Expedited Arbitrations provides that the case management conference shall take place "promptly" and "the Arbitrator and the parties shall seek to adopt procedures enhancing the efficiency and expeditiousness of the proceedings"; thus, "no later than seven days from the referral of the case to the Arbitrator, the Arbitrator shall seek to establish a timetable for the conduct of the arbitration, including the date for making the award".62

Similar case management measures have been adopted under the ICC expedited rules, where the unique feature of the adoption of Court-approved terms of reference does not apply; thus, the case management shall take place no later than 15 days after the date on which the file is transmitted to the arbitral tribunal.63 The arbitral then has the discretion, after consultation with the parties, to adopt such procedural measures as it considers appropriate, namely limiting the number, length and scope of written submissions and written evidence, or not allowing document production.64

Other institutions leave it to the tribunal to determine the procedural timetable, either within strict time limits such as ICDR,65 or by directing the tribunal to do so as soon as possible, as is the case with ACICA66 and DIS.67

ii. Case frontloading

Another procedural measure consists in allowing case frontloading, namely ensuring that the request for arbitration is not a preliminary document but already contains the claimant’s full case in the form of a full statement of claim; the same applies to the respondent’s answer, which should contain [Page15:] the respondent’s full case in the form of a statement of defense. Logically, the measure is easier to implement when it is compulsory under separate institutional rules for expedited proceedings. This is the case for the 2017 SCC Rules for Expedited Arbitrations, Article 6 of which provides that "the Request for Arbitration, which also constitutes the Statement of Claim, shall include […]".68 Similar provisions have been adopted by ACICA,69 KLRCA70 and WIPO.71

Where expedited rules have been incorporated into an institution’s general arbitration rules, such as SIAC,72 HKIAC,73 and SCAI,74 frontloading is generally optional, which shows those institutions’ efforts to generalise the practice to standard arbitrations and promote efficiency more broadly.

iii. Assessing the evidence on the basis of documents only

Finally, most institutions have favored the possibility for tribunals to rule on the basis of documents only, such that an oral phase may become unnecessary. This can be done at the discretion of the tribunal75 or the parties.76 Certain institutions impose a pecuniary threshold for a hearing to occur,77 while others work on the assumption that a hearing will occur, subject to the tribunal finding that it is not needed in the circumstances of the case.78

iv. Deadlines for the issuance of the award

Finally, and although this does not relate as such to case management and the conduct of arbitral proceedings, most institutions have adopted measures to ensure that awards are issued within specific time limits, so as to improve the efficiency of the arbitral proceedings more generally.

Such time limits generally range from 30 days to nine months, with a start date ranging from the time at which the tribunal was constituted, the date on which the case was transmitted to the tribunal, the date on which the tribunal held the case management conference, or the date on which the last written submission was filed or the oral hearing occurred.79 In practice, it is anticipated that such time limits will contribute to improving the overall time efficiency of the conduct of arbitral proceedings, without their strict application being a cause for challenge.80

One further innovation should, in this regard, be emphasised, namely ICC’s decision in 2017 to introduce financial consequences for delays encountered by arbitral tribunals in submitting their draft awards to the ICC International Court of Arbitration.81

c. Reasoned vs Non-Reasoned Awards

Expedited procedure rules generally do not touch upon the award itself, and have maintained the requirement that awards be reasoned unless the parties have agreed that no reasons be given,82 although certain rules allow that the reasons may be stated in summary form only.83

One institution, however, has gone a different direction. As part of the tools available to arbitrators to shorten the overall time of an arbitration, the 2017 SCC Rules for Expedited Arbitration have reversed the assumption that awards should be reasoned unless parties agree otherwise, and have introduced non-reasoned awards as a default. Thus, Article 42 of the rules provides that an award rendered in expedited procedures is not reasoned, unless a party makes a request for a reasoned award.84

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At the other end of the spectrum, the adoption by ICC of expedited procedure rules has not changed the specificity of ICC as regards the scrutiny of ICC awards,85 and Article 32.2 of the ICC International Arbitration Rules continues to apply to ICC awards and requires that an award "state the reasons upon which it is based," leaving it to the discretion of the tribunal to limit the factual or procedural sections of the award to what is necessary in order to understand it.86 This is likely to put additional burden on the ICC Secretariat and International Court of Arbitration to proceed with the scrutiny (including of the awards’ reasoning) on a fast track basis; in this respect, ICC has adopted measures for ICC itself to proceed with the matter promptly.87

d. Early Dismissal of Claims Through Summary Proceedings

Quite different from the previous procedural tools, certain institutions have introduced the well-known device, in certain countries, of summary judgments in domestic litigation. The Black’s Law Dictionary defines "summary judgment" as a "judgment granted on a claim or defense about which there is no genuine issue of material fact and on which the movant is entitled to prevail as a matter of law".88 Applied to international arbitration, the option is an important one for disputes that do not raise complex issues of fact or law and which, as a result, are appropriate candidates for motions allowing the claims to be disposed of, partially or fully, on a summary basis.

Not all institutions expressly allow arbitrators to adjudicate the matters before them through summary proceedings.89 In situations where neither the applicable arbitration rules nor the arbitration agreement provide for summary disposition procedures, it remains debated whether such procedures fall afoul of the parties’ right to a fair hearing,90 or whether they fall within the tribunal’s broad case management powers (including its authority to ensure efficiency and cost reduction). ICC practice provides examples of cases where tribunals, notwithstanding the absence of an express authorisation under the rules, have considered a party’s request for a summary disposition of the claim, without however granting the request in light of a high threshold.91

By contrast, certain institutions have expressly provided for summary procedures. Perhaps the broadest possibility of seeking a summary procedure is offered by the 2017 SCC Rules for Expedited Arbitration, Article 40 of which provides that "[a] party may request that the Arbitrator decide one or more issues of fact or law by way of summary procedure, without necessarily undertaking every procedural step that might otherwise be adopted in the arbitration".92 This measure can concern any type of question going to jurisdiction, admissibility or merits, and Article 40(2) provides examples of such situations: "(i) an allegation of fact or law material to the outcome of the case is manifestly unsustainable; (ii) even if the facts alleged by the other party are assumed to be true, no award could be rendered in favour of that party under the applicable law; or (iii) any issue of fact or law material to the outcome of the case is, for any other reason, suitable to determination by way of summary procedure". Consistent with the SCC Arbitration Rules, the expedited procedure rules then require the tribunal, should it grant the motion, to "make an order or award on the issues under consideration in an efficient and expeditious manner".93

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For their part, the 2016 SIAC Arbitration Rules have adopted the manifest test: Article 29 of the Rules provides for an "[e]arly dismissal of claims and defences".94 The situations in which this option is available to the parties is when "a claim or defence is manifestly without legal merit" or "a claim or defence is manifestly outside the jurisdiction of the Tribunal".95 Should the tribunal grant such a request, it is required, "within 60 days of the date of filing of the application," to "make an order or Award on the application, with reasons, which may be in summary form".96

The same manifest test had already been adopted by ICSID, when it amended its arbitration rules in 2006. The well-known and much commented Rule 41(5) of the ICSID Arbitration Rules is, in effect, the only feature adopted by ICSID as a procedural tool aimed at expediting the arbitral process. The introduction of the rule in 2006 reflected the view that time and cost should not be devoted to cases or claims that do not have a chance of success, and that there needed to be a mechanism to fairly adjudicate objections at an early point in the proceedings.97 The rule was also considered necessary to address complaints from respondent States about the limited power of the Secretary General when screening arbitration requests, namely the power to refuse registration of arbitration requests in cases of a manifest lack of jurisdiction, but not in cases of manifestly frivolous claims.98

Rule 41(5) of the ICSID Rules provides for a summary decision in relation to a claim that "is manifestly without legal merit,"99 expressly leaving it open as to whether the objection may concern issues of jurisdiction or merits. From its adoption in 2006 to date, namely over a period of 11 years, Rule 41(5) has been raised 23 times, which corresponds to approximately 6% of the cases since it came into effect.100 Of those cases, the objections have been successful, in relation to part or the entirety of the case, in six cases;101 this number is not surprising, given the complex issues of fact and law that generally underlie an investment arbitration dispute. More generally, practice shows that Rule 41(5) has not been invoked abusively or routinely, and that ICSID tribunals have been largely consistent in their application of Rule 41(5), applying it to claims that are patently unmeritorious. For example, in Trans-Global v Jordan, the first ICSID case applying the rule, the Tribunal held that it is "directed only at clear and obvious cases," highlighting in particular the constraints faced by tribunals under the rule.102 Globex v Ukraine was the first ICSID case where the respondent State’s reliance on the rule led to the complete dismissal of all claims, in the backdrop of the well-established distinction, in investor-State arbitration, between a sale transaction and what properly constitutes a protected "investment" under the ICSID Convention.103 Thus, the Tribunal found that the claim brought against Ukraine was manifestly without legal merit, given that the sale and purchase contracts entered into by the claimants were "pure commercial transactions that [could not] on any interpretation be considered to constitute ‘investments’ within the meaning of Article 25 of the ICSID Convention".104 In PNG v Papua New Guinea, the Tribunal dismissed the objection based on Rule 41(5), holding that the dispute required an analysis of complex factual and partially novel legal questions, and that it was not appropriate to undertake such analysis in the context of a summary proceeding: "Rule 41(5) is not intended to resolve novel, difficult or disputed legal issues, but instead only to apply undisputed or genuinely [Page18:] indisputable rules of law to uncontested facts."105 Likewise, in MOL v Croatia, the Tribunal held that "[t]he Rule […] plainly envisages a claim that is so obviously defective from a legal point of view that it can properly be dismissed outright. By contrast, an objection to the jurisdiction or a substantive defence […] which requires for its disposition more elaborate argument or factual enquiry, must be made the subject of a regular preliminary objection [to jurisdiction] […] or a regular defence on the merits."106

Finally, it is noteworthy that in cases in which the rule has been successfully invoked, the timeframe between the end of the pleadings and the decision has ranged between three weeks and five months;107 given the complexity of factual and legal issues, in particular concerning jurisdictional and admissibility matters, these timeframes would seem to be relatively expeditious when compared to the overall length of arbitral proceedings in investment arbitration.108 Thus, despite the relative modesty of respondent States’ recourse to Rule 41(5), and certain criticisms that the rule has generated, in particular in relation to the high threshold of the "manifest" test,109 it has had the merit of providing a basis on which respondents may, when circumstances so justify, seek an early dismissal of the claim without incurring the length and costs of an entire arbitration proceeding.

c CHALLENGES POSED BY EXPEDITED PROCEDURE RULES

As a preliminary matter, it is important to emphasise that, where recent statistics are available, they show solid user demand for expedited procedure rules.110 Thus, under the SCC rules, 28% of the SCC’s caseload for 2016 was administered under the SCC Rules for Expedited Arbitrations.111 Similarly, SCAI statistics show that, by the end of 2015, 29 out of 136 arbitration cases (namely, 21% of SIAC’s total caseload) were governed by the expedited procedure provisions.112 In Asia, SIAC’s statistics show that from 1 July 2010 to 31 March 2017, there were 341 applications for the expedited procedure, out of which a total of 186, namely more than half, were accepted.113 However, the HKIAC’s experience may be less conclusive at this time, as the institution’s 2016 case statistics show that, out of a total of 262 arbitrations filed in 2016, only 15 applications concerned expedited procedures, eight of which were granted. Although this represents only 3% of HKIAC’s total caseload, the figure is still an improvement from 2015, where out of a total of 271 arbitrations, only nine applications concerned the expedited procedure, seven of which were granted.114

It is equally important to emphasise the assumption under which arbitration proceedings, including expedited procedures, are to be conducted, namely that, because this is a dispute resolution mechanism that has been specifically chosen by the parties, they will abide by and fully comply with their own choice. Consistent with this assumption, certain institutions such as the SCC emphasise the importance, for all involved, of acting in an efficient and expeditious manner.115 That is not to say, however, that challenges may not arise in practice, due to a recalcitrant party’s conduct that may undermine the application of expedited procedure rules (1), or to actual difficulties in the implementation of the mechanisms ensuring expedited proceedings (2).

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1. Challenges Related to the Application of Expedited Procedure Rules

To the extent the vast majority of institutions have conditioned the applicability of expedited procedure rules to a pecuniary threshold, a first practical challenge relates to the difficulty of assessing whether a matter falls within the scope of those rules. The question may be relatively straightforward in situations where a claimant provides a clear valuation of its claim(s) at the outset. However, in situations where a recalcitrant party wishes to avoid the accelerated pace of the proceeding, institutions and tribunals may be faced with — and compelled to assess — procedural tactics such as defendants devising counterclaims in order to rise above the pecuniary threshold.

Another difficulty may arise in relation to the institutional rules’ design of a sole arbitrator to decide the case on an expedited basis. To the extent certain rules allow the institutions, for the implementation of expedited procedures, to depart from the parties’ choice of a three-panel member, the question arises as to whether a losing party may challenge an award based on the institution’s choice of a sole arbitrator contrary to the arbitration agreement.116 The situation arose in the case brought in 2015 before the Singapore High Court in AQZ v ARA,117 which concerned the setting aside of an award rendered by a sole arbitrator under the 2010 SIAC Expedited Procedure, allegedly in disregard of the parties’ explicit agreement to have their dispute decided by three arbitrators. The Singapore High Court held that since the 2010 SIAC Arbitration Rules had been incorporated into the parties’ contract, a purposive and commercially sensible construction of the arbitration agreement would be to recognise that the President of the SIAC Court had the discretion to appoint a sole arbitrator. It noted that if a construction to the contrary was applied, a sole arbitrator could never be appointed to hear the dispute, regardless of the complexity of the dispute or the quantum involved and notwithstanding the incorporation of the 2010 SIAC Rules. The Court thus rejected the application and held that the parties had "expressly chosen a version of the SIAC Rules that contained the Expedited Procedure provision. Therefore, it was consistent with party autonomy for the Expedited Procedure provision to override their agreement for arbitration before three arbitrators."118 It should be noted that the 2016 version of the SIAC Arbitration Rules now provides clearly at Article 5.3 that "[b]y 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."119

2. Challenges Related to the Mechanisms Within Arbitrator Control in the Application of Expedited Procedure Rules

Greater challenges may result from the application of the mechanisms within the arbitrators’ control under expedited procedure rules. This is because the manner in which arbitrators conduct arbitral proceedings may compel the parties to present their case within certain constraints and parameters which may then provide grounds to a losing party to seek to set aside the award on the basis of a lack of due process.

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Such concerns may be heightened in contemporaneous arbitral practice and what certain commentators have called "due process paranoia,"120 in reference to the growing concern in international arbitration about certain tribunals’ perceived reluctance to act decisively in certain situations for fear of the award being challenged on the basis of a party not having had an opportunity to be fully heard. In a 2015 survey,121 interviewees described situations where deadlines were repeatedly extended, fresh evidence was admitted late in the process, or other disruptive behavior by counsel was condoned due to what was perceived to be a concern by the tribunal that the award would otherwise be vulnerable to challenge; in turn, a number of arbitrators indicated that this concern influenced decisions they had made when sitting as arbitrator. The question, therefore, is the extent to which such concerns come into play in expedited proceedings, or whether, because the parties are aware of the constraints of such proceedings, they accept a greater measure of flexibility in the way in which they are conducted by arbitrators and institutions.

The following examples illustrate the ways in which a losing party has used the specificity of expedited mechanisms in its challenge of the award. Generally speaking, however, the scarcity of the case law related to expedited proceedings122 suggests that parties are either satisfied with the manner in which such proceedings unfold, or that, given the modest pecuniary stakes of the dispute, they are reluctant to challenge awards rendered in expedited proceedings so as to avoid incurring unnecessary costs.

A first example is provided by the 2008 decision of the Swiss Federal Tribunal,123 in relation to an arbitration governed by Swiss law in Geneva, under the aegis of the Geneva Chamber of Commerce and Industry ("CCIG"). The amount at stake was below CHF 1 million and expedited procedures automatically applied under the Rules. The award was challenged based in particular on alleged violations of the respondent’s right to be heard, both during the arbitral proceedings (including on alleged unequal time given to the parties) and in the award in light of the Arbitrator’s alleged failure to provide any "real reasoning" in support of the award. The Federal Tribunal held that the "right to be heard is violated when some manifest oversight leads the arbitral tribunal to fail to take into consideration some elements which one of the parties submitted to the tribunal".124 It further held that the right to be heard does not necessarily require an arbitral award to be reasoned, and in any event, where such an obligation applies, a brief statement of reasons (here, in a procedural order) may suffice.125

A second example is provided by a decision rendered in 2012 by the Svea Court of Appeal,126 in relation to a sole arbitrator’s decision to not hold a hearing. In that case, which was conducted under the SCC Rules for Expedited Arbitrations, the appellant challenged the arbitral award maintaining, inter alia, that the sole arbitrator had invalidly rejected its request to hold a hearing to hear the witnesses’ testimony; according to the appellant, by being denied a hearing, it was prevented from presenting evidence in support of its claim. The Svea Court of Appeal rejected the challenge, observing that under Article 27(1) of the SCC Rules for Expedited Arbitrations, a hearing was to be held if requested by a party and deemed necessary by the arbitrator. In the circumstances of the case, the Court [Page21:] noted that the sole arbitrator had considered, after taking into account the submissions of the parties and the witness statements, that it was not necessary to hold a hearing. In addition, under the law of the State of New York which governed the dispute, the parol evidence rule applied such that any evidence beyond the parties’ written agreement could not be admitted. Accordingly, the Court considered that when deciding not to hold a hearing, the sole arbitrator had applied the applicable law and arbitration rules upon which the parties had agreed.127 The question arises as to what would have been the outcome of the setting aside proceeding had the applicable law not prohibited oral evidence. More generally, however, it remains that the option given to the arbitrators under various expedited procedure rules to decide the dispute based solely on documentary evidence is a discretionary power based on the circumstances of each case, and unless a losing party is in a position to show that the arbitrator’s decision specifically breached its due process rights, it is not anticipated that recourse to documents-only mechanisms should, in itself, result in excessive challenges of awards.

A third example is provided by the 2014 decision of the English High Court in Travis Coal, in which the Court considered an application to set aside an ex parte enforcement order in respect of a New York arbitral award or to adjourn a decision on enforcement pending the outcome of a challenge to the award in the New York courts.128 In the underlying arbitration, Travis Coal had applied for summary judgment on fraud defences, seeking to apply the summary judgment standard of the New York courts. Essar objected to Travis Coal’s summary judgment application, arguing that the tribunal did not have the power to grant summary judgment and that the adoption of a summary procedure would contravene its right to be heard on its defences. The tribunal held hearings and heard oral testimony relevant to Essar’s fraud defences from a witness on each side, but adopted a procedure that was summary in nature and fell short of a full hearing on the merits. It then issued a procedural order in which it ruled that Essar’s fraud defences did not bar Travis Coal’s claim under the guarantee by virtue of certain waiver provisions in that agreement. The English High Court emphasised that the parties’ arbitration agreement contained a clause empowering the tribunal to decide dispositive issues in an appropriate manner; it also pointed to article 22 of the applicable 2012 ICC Rules, which required the tribunal to conduct the arbitration in an expeditious and cost-effective manner and empowered the tribunal to adopt such procedural measures as it considered appropriate, provided that the measures were not contrary to any agreement of the parties. The Court observed that the adoption of a summary judgment process by the tribunal did not necessarily amount to a denial of due process, noting that the question of whether a summary judgment process by arbitrators necessarily amounts to a denial of due process is not a question that could be addressed in general terms; rather, the facts of the particular case and the terms of the arbitration agreement must be taken into account to determine whether the measures adopted by the tribunal are within the scope of its powers and otherwise fair.129 On this basis, it held that there was no "realistic prospect" of resisting enforcement of the award based on the summary procedure adopted by the arbitral tribunal.130

These cases show that, in their scrutiny of awards, enforcement courts have sought to strike a balance between, on the one hand, the arbitrators’ [Page22:] powers and discretion in implementing expedited procedure rules and giving effect to the policy of time and cost efficiency underlying such rules and, on the other hand, the fundamental requirements of due process, which should guide at all times arbitrators when exercising their powers.

D CONCLUSION: BACK TO BASICS

The wide adoption of expedited procedure rules by institutions around the world — and, based on their use, their success so far — shows the users’ clear demand for simplified rules that allow, where circumstances so justify, proceedings that are compressed within a short time period; it also shows something else, especially when one observes the similarity — sometimes sameness — of the rules: that despite the increasing competition among institutions, the mechanisms and processes they adopt tend to replicate one another, such that international arbitration proceedings are gradually becoming homogeneous, if not standardised.

At the same time, arbitral practice has evolved to become increasingly litigious, lengthy and complex. In this context, the adoption by arbitral institutions of expedited procedure rules could not be more timely, and it can be anticipated that, in the years to come, expedited procedure rules will give rise to significant arbitral practice.131 The hope, therefore, is that the practice of expedited proceedings by arbitration practitioners, arbitrators and institutions will, in time, reach beyond the so-called small claims, and that the users’ concern for time and cost efficiency will be better implemented in the more standard international arbitration proceedings. In some ways, perhaps, expedited proceedings are nothing more than a reminder that the reason why users consider international arbitration in the first place is, in addition to the key factor of neutrality, how it compares with domestic litigation as regards procedural flexibility, faster pace and lower costs; in other words, a call to get back to basics.

*
Partner and Head of Public International Law, Shearman & Sterling LLP (Paris); Vice-President, ICC International Court of Arbitration. The author wishes to thank Ms. Caroline Kimeu for her valuable assistance in the research and preparation of the present contribution.

1
2015 International Arbitration Survey, "Improvements and Innovations in International Arbitration", School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London (hereafter "2015 International Arbitration Survey").

2
The respondent group consisted of academics (4%), arbitral institutions (staff) (2%), arbitrators (11%), "arbitrator and counsel in equal proportion" (12%), expert witnesses (2%), in-house counsel (8%) and private practitioners (49%), 12% were categorised as "other", which included judges, third party funders, mediators, government officials and interviewees who did not specify their position. 53% were based in Europe, 26% in Asia, 18% from the Americas, 2% from Africa and 1% from Oceania (see pp. 51-52 of Survey).

3
2015 International Arbitration Survey, supra note 1, p. 3.

4
Ibid., p. 26.

5
Benjamin G. Davis, Odette Lagacé and Michael Volkovitsch "When Doctrines Meet — Fast-Track Arbitration and the ICC Experience", Journal of International Arbitration, Kluwer Law International 1993, Vol. 10, Issue 4, pp. 69-96, footnote 2. For a slightly different definition, incorporating "expedited procedures" within "fast-track arbitration", see, e.g., Alice Broichmann, "Disputes in the Fast Lane: Fast-Track Arbitration in Merger and Acquisition Disputes", International Arbitration Law Review, 2008, No. 4, p. 143, at p. 144 ("Even though the understanding of the term ‘fast-track arbitration’ is not quite consistent in arbitration practice, the definitions quoted in literature can be brought in line insofar as under this term, such arbitration proceedings are understood which aim to conduct arbitration proceedings reducing all other usual deadlines for the formation of an arbitral tribunal, the commencement of the arbitration proceedings and the exchange of briefs. […] In literature, further differentiations are in part still made and under fast-track arbitration, these are understood to be expedited procedures, whereby the parties select [Page23:] a subset of disputes from the total potential disputes and agree that if a dispute in this category arises, it will be resolved within a non-extendable time limit. […] Thus, an essential characteristic of fast-track arbitration is the segmentation of possible conflict potential into cases which are suitable and unsuitable for expedited dispute settlement, whereby suitable cases will thus far be included in a comprehensive body of legislation for expedited settlement." See also Christian Klausegger and Irene Welser, "Fast Track Arbitration: Just fast or something different?", Austrian Arbitration Yearbook, 2009, p. 259: "Everybody talks about fast track arbitration, but is there a clear definition? First, it is important to stress that fast track arbitration is not a distinct system of arbitration, but rather a general characterisation for an accelerated arbitral procedure. […].").

6
See, e.g., Fouchard Gaillard Goldman on International Commercial Arbitration (Emmanuel Gaillard and John Savage, eds.) Kluwer Law International, 1999, Part 4: Chapter II (The Arbitral Proceedings), pp. 655-708, p. 680, paragraph 1248 (characterising a fast-track arbitration as one with very stringent deadlines); see also Liz Tout and James Langley, "Summary procedures in international arbitration — pros and cons", 11 April 2017, Lexology, accessible at http://www.lexology.com/library/detail.aspx?g=1e70c382-4e4a-4b72-8143-3e02be74d59c.

7
See infra, Section on "Early Dismissal of Claims Through Summary Proceedings". On the use of the word "summary", see also infra note 89.

8
ICC Award in Case 7385/7402, 1992, ICC International Court of Arbitration Bulletin, 1997, Vol. 8, No. 1, p. 56. For a case study, see Benjamin Davis, "The case viewed by a counsel at the ICC Court’s Secretariat", in ICC Fast-Track Arbitration: Different Perspectives, ICC Bulletin, 1992, Vol. 3, No. 2, p. 4; Peter J. Nickles, Moses Silverman, and David K. Watkiss, "Three perspectives from the parties’ counsels", in ICC Fast-Track Arbitration: Different Perspectives, ICC Bulletin, 1992, Vol. 3, No. 2, p. 9; Hans Smit, "A Chairman’s perspective", in ICC Fast-Track Arbitration: Different Perspectives, ICC Bulletin, 1992, Vol. 3, No. 2, p. 15.

9
Christian Klausegger and Irene Welser, "Fast Track Arbitration: Just fast or something different?", supra note 5, p. 261.

10
ICC Case No. 10211/AER, 1993, cited and described in Redfern and Hunter on International Arbitration (Nigel Blackaby, Constantine Partasides et al. eds.), Oxford University Press, 2015 (sixth edition), Chapter 6 (Conduct of the Proceedings), p. 363, paragraph 6.34.

11
See Peter J. Nickles, Moses Silverman, and David K. Watkiss, "Three perspectives from the parties’ counsels", supra note 8, pp. 9-10: counsel for the buyer pointed to the following factors as having contributed towards the success of the arbitration: the commitment of the ICC Court and members of the tribunal, early involvement of counsel (before the need for arbitration became apparent), advance identification of potential arbitrators, preliminary contacts with the Court’s staff, avoidance of discovery, and the fact that except for good cause, the tribunal disallowed evidence to be adduced at the hearing which was not raised in the parties’ submissions. For a plea for arbitrator availability, see Hans Smit, "A Chairman’s perspective", supra note 8, p. 15.

12
See, e.g., Remy Gerbay, "Is the End Nigh Again? An Empirical Assessment of the Judicialisation of International Arbitration", The American Review of International Arbitration, 2014, Vol. 25, No. 2, pp. 227-230.

13
See Louise Barrington, "ICC’s New Guidelines for Arbitrating ‘Small Claims’ — A view from behind the scenes in a global task force", LawAsia Update, May 2003, p. 10.

14
Ibid., p. 11.

15
Ibid.

16
Ibid.

17
See ICC Arbitration Commission, Report on "Techniques for Controlling Time and Costs in Arbitration", 2007 (1st edition), paragraph 6; Report on "Controlling Time and Costs in Arbitration", 2012 (2nd edition), paragraph 4.

18
For a sociological analysis of users’ conduct, see generally Emmanuel Gaillard, "Sociology of International Arbitration", Arbitration International, 2015, 31, pp. 1-17.

19
For a general presentation on the latest set of ICC Rules, see José Feris, "The 2017 ICC Rules of Arbitration and the New ICC Expedited Procedure Provisions: A View from Inside the Institution", ICC Dispute Resolution Bulletin, 2017, Issue 1. See in particular the author’s conclusion: "First, past revisions of the ICC Rules have been comprehensive in scope. While revisions of this kind will continue to be necessary, particularly after lengthy periods of time, occasional limited revisions are also useful as they allow arbitration institutions to adapt certain aspects of their procedures to rapidly evolving circumstances and users’ demands. By completing a revision process in a relatively rapid manner to address immediate concerns, the ICC Court has strengthened its standing as a modern, agile and competitive service provider. Second, the ICC Rules have traditionally followed a ‘one size fits all’ philosophy, which has allowed it to provide the highest standard of quality to all of the cases it administers. The Expedited Procedure Provisions [Page24:] have changed this philosophy by providing a service adapted to low value claims without compromising quality, for which ICC arbitration is so widely renowned. Achieving this fine balance is perhaps one of the key successes of the 2017 revision. […]" (Emphasis added).

20
2014 LCIA Arbitration Rules, Article 9A.

21
The first time such a set of rules was adopted was in 1995, with the SCC Expedited Rules. The latest set of rules was adopted in 2017: see 2017 SCC Expedited Arbitration Rules.

22
2016 ACICA Expedited Arbitration Rules.

23
2013 KLRCA Fast Track Arbitration Rules.

24
2014 WIPO Expedited Arbitration Rules.

25
2008 DIS Supplementary Rules for Expedited Proceedings.

26
2014 ICDR International Expedited Procedures, Articles E-1 to E-10.

27
2017 ICC Arbitration Rules, Article 30 and Appendix VI.

28
2016 SIAC Arbitration Rules, Rule 5.

29
2013 HKIAC Administered Arbitration Rules, Article 41.

30
2015 CIETAC Arbitration Rules, Chapter IV "Summary Procedure" (Articles 56 to 64).

31
2014 JCAA Commercial Arbitration Rules, Chapter VI "Expedited Procedures", Rules 75 to 82.

32
2012 Swiss Rules of International Arbitration, Article 42. On this provision generally, see Thomas Rohner, "Expedited Procedure Under Art. 42 Swiss Rules", Ten Years of Swiss Rules of International Arbitration, ASA Special Series No. 44, 2014, p. 55.

33
On this provision, see infra, section on "Early Dismissal of Claims Through Summary Proceedings".

34
See LCIA website: "Whilst there are no separate rules for fast-track arbitration, the LCIA Arbitration Rules may be readily adapted to achieve an expedited process. Should the parties wish to provide, in their contract, for fast-track arbitration, the LCIA will provide recommended clauses for this purpose."

35
2014 LCIA Arbitration Rules, Article 9A.

36
2014 LCIA Arbitration Rules, Article 22(1)(ii).

37
The rules themselves apply to arbitration agreements concluded after 1 March 2017. See Article 30(2) of the 2017 ICC Arbitration Rules ("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" (emphasis added)) and Appendix VI, Article 1(2) ("The amount referred to in Article 30(2), subparagraph a), of the Rules is US$2 million."). See also José Feris, "The 2017 ICC Rules of Arbitration and the New ICC Expedited Procedure Provisions: A View from Inside the Institution", supra note 19: "[…] Arbitrations relating to claims below US$2 million represent around 33% of the ICC Court’s caseload. Hence, there was clear interest in ICC administering lower-value cases. […]"

38
2012 Swiss Rules of International Arbitration, Article 42(2): "The following provisions shall apply to all cases in which the amount in dispute, representing the aggregate of the claim and the counterclaim (or any set-off defence), does not exceed CHF 1,000,000 (one million Swiss francs), unless the Court decides otherwise, taking into account all relevant circumstances: […]".

39
2014 ICDR Arbitration Rules, Article 1(4): "Unless the parties agree or the Administrator determines otherwise, the International Expedited Procedures shall apply in any case in which no disclosed claim or counterclaim exceeds US$250,000 exclusive of interest and the costs of arbitration."

40
2015 JCAA Arbitration Rules, Rule 75.2: "Expedited procedures shall be conducted where the amount or economic value of the claimant’s claim(s) is not more than ¥20,000,000; unless, within two weeks from the respondent’s receipt of the notice of the Request for Arbitration: […]"). Rule 75.3 provides that "The amount of any interest, rent, damage, penalty, expense, or cost that is incidental to the principal claim shall be excluded when calculating the amount or the economic value of the claim, counterclaim, or set-off defense under Rule 75.2." Where it is difficult to calculate the amount or economic value of claim(s), the economic value is deemed to exceed ¥20,000,000 (Rule 75.4).

41
2015 CIETAC Arbitration Rules, Article 56(1): "The Summary Procedure shall apply to any case where the amount in dispute does not exceed RMB 5,000,000 unless otherwise agreed by the parties; or where the amount in dispute exceeds RMB 5,000,000, yet one party applies for arbitration under the Summary Procedure and the other party agrees in writing; or where both parties have agreed to apply the Summary Procedure." Article 63 provides that "The Summary Procedure shall not be affected by any amendment to the claim or by the filing of a counterclaim. Where the amount in dispute of the amended claim or that of the counterclaim exceeds RMB 5,000,000, the Summary Procedure shall continue to apply unless the parties agree or the [Page25:] arbitral tribunal decides that a change to the general procedure is necessary." It should be noted that the pecuniary threshold has been increased, as in the 2012 Arbitration Rules, the amount was RMB 2 million.

42
2016 SIAC Arbitration Rules, Rule 5.4: "Upon application by a party, and after giving the parties the opportunity to be heard, the Tribunal may, having regard to any further information as may subsequently become available, and in consultation with the Registrar, order that the arbitral proceedings shall no longer be conducted in accordance with the Expedited Procedure. Where the Tribunal decides to grant an application under this Rule 5.4, the arbitration shall continue to be conducted by the same Tribunal that was constituted to conduct the arbitration in accordance with the Expedited Procedure."

43
2013 HKIAC Administered Arbitration Rules, Article 41.1(a): "Prior to the constitution of the arbitral tribunal, a party may apply to HKIAC in writing for the arbitration to be conducted in accordance with Article 41.2 where (a) the amount in dispute representing the aggregate of any claim and counterclaim (or any set-off defence) does not exceed HKD 25,000,000 (twenty-five million Hong Kong dollars); […]".

44
2016 ACICA Arbitration Rules, Article 7.1(a): "Prior to the constitution of the Arbitral Tribunal, a party may apply to ACICA in writing for the arbitral proceedings to be conducted in accordance with the ACICA Expedited Rules where: (a) the amount in dispute determined in accordance with Article 2.2 of Appendix A of these Rules is less than US$5 million; […]".

45
See, e.g., Article 1.1 of the 2008 DIS Supplementary Rules for Expedited Proceedings: "The Supplementary Rules set forth herein shall only apply if the parties have referred to them in their arbitration agreement or if the parties have agreed on their application prior to filing a statement of claim. Unless otherwise agreed by the parties, the DIS Arbitration Rules as well as the Supplementary Rules in effect on the date of commencement of the arbitral proceedings apply to the dispute." Likewise, under Article 2 of the WIPO Expedited Arbitration Rules, "[w]here an Arbitration Agreement provides for arbitration under the WIPO Expedited Arbitration Rules, these Rules shall be deemed to form part of the Arbitration Agreement and the dispute shall be settled in accordance with these Rules, as in effect on the date of the commencement of the arbitration, unless the parties have agreed otherwise."

46
See 2017 SCC Rules for Expedited Arbitrations, Article 11: "After receiving the Answer, and prior to the appointment of the Arbitrator, the SCC may invite the parties to agree to apply the Arbitration Rules with either a sole arbitrator or three arbitrator(s), having regard to the complexity of the case, the amount in dispute and any other relevant circumstances." It is important to note that, to the extent the application of the expedited procedure rules, under this provision, depends on an agreement between the parties ("the SCC may invite the parties to agree to apply the Arbitration Rules with either a sole arbitrator or three arbitrator(s)"), absent such an agreement, the SCC is not in a position to force expedited procedure rules: see, e.g., Yuri Bogdanov and Yulia Bogdanova v Republic of Moldova, SCC Case No. V 091/2012, Final Award, April 16, 2013, Juris Arbitration Law, where the SCC informed the parties that there had been no agreement regarding the applicability of the Expedited Arbitration Rules after the Republic of Moldova left unanswered the claimants’ request for an expedited proceeding.

47
2016 SIAC Arbitration Rules, Rule 5.1(a): "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 US$6 million, representing the aggregate of the claim, counterclaim and any defence of set-off; […]".

48
2017 SCC Rules for Expedited Arbitrations, Article 11: "After receiving the Answer, and prior to the appointment of the Arbitrator, the SCC may invite the parties to agree to apply the Arbitration Rules with either a sole or three arbitrator(s), having regard to the complexity of the case, the amount in dispute and any other relevant circumstances."

49
2017 ICC Arbitration Rules, Article 30.3(c): "3. The Expedited Procedure Provisions shall not apply if: […] (c) 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."

50
2017 ICC Arbitration Rules, Appendix VI (Expedited Procedure Rules), Article 1.4: "The Court may, at any time during the arbitral proceedings, on its own motion or upon the request of a party, and after consultation with the arbitral tribunal and the parties, decide that the Expedited Procedure Provisions shall no longer apply to the case. In such case, unless the Court considers that it is appropriate to replace and/or reconstitute the arbitral tribunal, the arbitral tribunal shall remain in place."

51
2017 SCC Rules for Expedited Arbitrations, Article 17: "The arbitration shall be decided by a sole arbitrator."

52
2016 ACICA Expedited Arbitration Rules, Article 8.1: "There shall be one arbitrator."
[Page26:]

53
2014 ICDR International Expedited Procedures, Article E-6: "A sole arbitrator shall be appointed as follows. […]."

54
2015 JCAA Arbitration Rules, Rule 79.1: "Expedited procedures shall be conducted by a sole arbitrator."

55
2014 WIPO Expedited Arbitration Rules, Article 14(a): "The Tribunal shall consist of a sole arbitrator who shall be nominated by the parties, subject to confirmation of the appointment by the Center in accordance with Articles 17 and 18. The appointment shall be effective upon the Center’s notification to the parties."

56
2017 ICC Arbitration Rules, Appendix VI (Expedited Procedure Rules), Article 2.1: "The Court may, notwithstanding any contrary provision of the arbitration agreement, appoint a sole arbitrator." For examples of cases where the validity of this type of provision was discussed, see infra, Section on "Challenges Related to the Application of Expedited Procedure Rules".

57
2017 ICC Arbitration Rules, Article 30.1. See also ICC Note, para. 76: "By submitting to arbitration under the Rules, the parties agree that any reference of disputes to three arbitrators in their arbitration agreement is subject to the Court’s discretion to appoint a sole arbitrator if the Expedited Procedure Provisions apply."

58
Brock, D et al., "Expedited Procedure under the ICC, SIAC and HKIAC Rules: Party Autonomy vs Institutional Control", Lexology, 2 January 2017, accessible at: http://www.lexology.com/library/detail.aspx?g=69dd328b-bad1-4708-b68f-bb2e24f540ca.

59
See, e.g., 2012 Swiss Rules of International Arbitration, Article 42.2(b) ("The case shall be referred to a sole arbitrator, unless the arbitration agreement provides for more than on arbitrator"); however, where the agreement provides for more than one arbitrator, the Swiss Rules of International Arbitration invite the parties to agree to refer the case to a sole arbitrator; if the parties do not agree, the case is referred to the number of arbitrators provided for under the agreement (Article 42.2.(c) of the 2012 Swiss Rules of International Arbitration: "If the arbitration agreement provides for an arbitral tribunal composed of more than one arbitrator, the Secretariat shall invite the parties to agree to refer the case to a sole arbitrator. If the parties do not agree to refer the case to a sole arbitrator, the fees of the arbitrators shall be determined in accordance with Appendix B (Schedule of Costs), but shall in no event be less than the fees resulting from the hourly rate set out in Section 2.8 of Appendix B."). See also 2013 HKIAC Arbitration Rules, Article 41.2(a) ("the case shall be referred to a sole arbitrator, unless the arbitration agreement provides for three arbitrators"); here too, where the agreement provides for more than one arbitrator, HKIAC is to invite the parties to agree to refer the case to a sole arbitrator; if the parties do not agree, the case is referred to three arbitrators (Article 41.2.(b) of the HKIAC Arbitration Rules: "if the arbitration agreement provides for three arbitrators, HKIAC shall invite the parties to agree to refer the case to a sole arbitrator. If the parties do not agree, the case shall be referred to three arbitrators.").

60
See, e.g., 2015 CIETAC Arbitration Rules, Article 58 ("Unless otherwise agreed by the parties, a sole-arbitrator tribunal shall be formed in accordance with Article 28 of these Rules to hear a case under the Summary Procedure."); 2013 KLRCA Arbitration Rules, Article 4.1 ("Unless the parties have agreed otherwise, any arbitration conducted under these Rules shall be conducted by a sole arbitrator whose appointment shall be agreed in writing by the parties within 7 days of the commencement of arbitration."); 2008 DIS Supplementary Rules for Expedited Proceedings, Section 3.1 ("In deviation from Sec. 3 DIS Arbitration Rules, the dispute shall be decided by a sole arbitrator, unless the parties have agreed prior to the filing of the statement of claim that the dispute shall be decided by three arbitrators.").

61
2016 SIAC Arbitration Rules, Rule 5.2(b): "the case shall be referred to a sole arbitrator, unless the President determines otherwise."

62
2017 SCC Rules for Expedited Arbitrations, Articles 24.2 and 29.

63
2017 ICC Arbitration Rules, Appendix VI, Articles 3.3: "The case management conference convened pursuant to Article 24 of the Rules shall take place no later than 15 days after the date on which the file was transmitted to the arbitral tribunal. 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." For a similar rule, see Article 34 of the WIPO Expedited Arbitration Rules: "The Tribunal shall, in general within 15 days after its establishment, conduct a preparatory conference with the parties in any suitable format for the purpose of organising and scheduling the subsequent proceedings in a time and cost efficient manner."

64
2017 ICC Arbitration Rules, Appendix VI, Article 3.4: "The arbitral tribunal shall have discretion to adopt such procedural measures as it considers appropriate. In particular, the arbitral tribunal may, after consultation with the parties, 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)."
[Page27:]

65
2014 ICDR International Expedited Procedures, Article E-7: "[…] Within 14 days of appointment, the arbitrator shall issue a procedural order." (although the content of the order is not determined).

66
2016 ACICA Expedited Arbitration Rules, Article 13.2: "Subject to these Rules, the Arbitrator shall adopt suitable procedures for the conduct of the arbitration in order to avoid unnecessary delay and expense. As soon as practicable after being appointed the Arbitrator shall hold a preliminary meeting with the parties in person or by telephone or other means and shall make a procedural timetable for the arbitration." (Emphasis added). Article 13.1 also provides: "Subject to these Rules, including the overriding objective in Article 3 ["to provide arbitration that is quick, cost effective and fair"], the Arbitrator may conduct the arbitration in such manner as he or she considers appropriate, provided that the parties are treated equally and that each party is given a reasonable opportunity of presenting its case."

67
2008 DIS Supplementary Rules for Expedited Proceedings, Section 5.1: "At the outset of the proceedings, the arbitral tribunal shall in agreement with the parties establish a time schedule to ensure that the arbitral proceedings can be concluded within the time frame specified in Sec. 1 sub. 2. [i.e. 6 to 9 months depending on whether a sole arbitrator or a three-member tribunal is called upon to decide the case]." (Emphasis added).

68
2017 SCC Rules for Expedited Arbitrations, Article 6. See also Article 9, which likewise provides that the Answer "also constitutes the Statement of Defence". For a different wording, see, e.g., 2014 ICDR International Expedited Procedures, Article E-2 ("Parties are to present detailed submissions on the facts, claims, counterclaims, setoffs and defenses, together with all of the evidence then available on which such party intends to rely, in the Notice of Arbitration and the Answer.").

69
2016 ACICA Expedited Arbitration Rules, Article 17.1 ("The Statement of Claim shall be contained in the Notice of arbitration. […]") and Article 18.1 ("Within 28 days of service of the Notice of Arbitration under Article 5.4, the Respondent shall communicate its Statement of Defence in writing to the Claimant, the Arbitrator and ACICA.").

70
2013 KLRCA Fast Track Arbitration Rules, Article 3.2 ("The Notice of Arbitration shall include: […] (g) A comprehensive Statement of Case in accordance with Article 7 signed by or on behalf of the Claimant."), Article 7 ("Statement of Case") and Article 8 ("Statement of Defence (and counterclaim, if any)").

71
2014 WIPO Expedited Arbitration Rules, Article 10 ("The Request for Arbitration shall be accompanied by the Statement of Claim in conformity with Article 35(a) and (b)."); Article 11 ("Within 20 days from the date on which the Respondent receives the Request for Arbitration and Statement of Claim from the Claimant, the Respondent shall address to the Center and to the Claimant an Answer to the Request which shall contain comments on any of the items in the Request for Arbitration.") and Article 12 ("The Answer to the Request shall be accompanied by the Statement of Defense in conformity with Article 36(a) and (b).").

72
2016 SIAC Arbitration Rules, Rule 3.2: "The Notice of Arbitration may also include the Statement of Claim referred to in Rule 20.2" See also Rule 4.1 for the Response/Statement of Defence.

73
2013 HKIAC Administered Arbitration Rules, Articles 4.6 and 5.3.

74
2012 Swiss Rules of International Arbitration, Article 3.4 and 3.8.

75
2017 SCC Rules for Expedited Arbitrations, Article 33(1) ("A hearing shall be held only at the request of a party and if the Arbitrator considers the reasons for the request to be compelling"); 2017 ICC Arbitration Rules, Appendix VI, Article 3.5 ("The arbitral tribunal may, after consulting the parties, decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts. When a hearing is to be held, the arbitral tribunal may conduct it by videoconference, telephone or similar means or communication."); 2016 ACICA Expedited Arbitration Rules, Article 13.3 ("There shall be no hearing unless: (a) exceptional circumstances exist, as determined by the Arbitrator; and (b) either the Arbitrator or the parties require a hearing to take place"); 2016 SIAC Arbitration Rules, Rule 5.2(c), which departs from the 2013 and 2010 version of the Rules ("the Tribunal may, in consultation with the parties, decide if the dispute is to be decided on the basis of documentary evidence only, or if a hearing is required for the examination of any witness and expert witness as well as for any oral argument"); 2015 CIETAC Arbitration Rules, Article 60 ("The arbitral tribunal may examine the case in the manner in considers appropriate. The arbitral tribunal may decide whether to examine the case solely on the basis of the written materials and evidence submitted by the parties or to hold an oral hearing after hearing from the parties of their opinions"); 2013 HKIAC Administered Arbitration Rules, Article 41.2 (e) ("the arbitral tribunal shall decide the dispute on the basis of documentary evidence only, unless it decides that it is appropriate to hold one or more hearings").

76
See, e.g., 2016 ACICA Expedited Arbitration Rules, Article 13.3; 2012 Swiss Rules of International Arbitration, Article 42.1(c) ("Unless the parties agree that the dispute shall be decided on the basis of documentary evidence only, the arbitral tribunal shall hold a single hearing for [Page28:] the examination of the witnesses and expert witnesses, as well as for oral argument" (emphasis added); 2014 WIPO Expedited Arbitration Rules, Article 49(a) ("If either party so requests, the Tribunal shall hold a hearing for the presentation of the evidence by witnesses, including expert witnesses, or for oral argument or for both. In the absence of a request, the Tribunal shall decide whether to hold such a hearing or hearings. If not hearings are held, the proceedings shall be conducted on the basis of documents and other materials alone.").

77
2014 ICDR International Arbitration Rules, Article 1.4 ("[…] Where no party’s claim or counterclaim exceeds US$100,000 exclusive of interest, attorneys’ fees, and other arbitration costs, the dispute shall be resolved by written submissions only unless the arbitrator determines that an oral hearing is necessary"); under Article E-9 of the 2014 ICDR International Expedited Procedures, where an oral hearing is to be held, it "shall take place within 60 days of the date of the procedural order unless the arbitrator deems it necessary to extend that period […]". See also 2013 KLRCA Arbitration Rules, Article 9 (threshold of US$75,000 for international arbitration proceedings for the arbitration to "proceed as a documents-only arbitration, unless the arbitrator deems it necessary to proceed by way of substantive oral hearing upon consultation with the parties") and Article 11 (hearing to be held "not more than 20 days after the conclusion of all the procedures and processes preceding the substantive oral hearings and that the substantive oral hearings be completed no later than 125 days from the commencement of the arbitration").

78
2015 JCAA Arbitration Rules, Rule 80 ("A hearing shall not, in principle, last for more than one day. The arbitrator may schedule additional hearing days, if necessary"); 2008 DIS Supplementary Rules for Expedited Proceedings, Section 4.3 ("The oral hearing shall be held at the latest four weeks after receipt of the final written submission").

79
2017 ICC Arbitration Rules, Appendix VI, Article 4.1 (Six months from the case management conference, unless the deadline is extended by the Court); 2017 SCC Rules for Expedited Arbitrations, Article 43 (Three months from the referral of the case); 2016 SIAC Arbitration Rules, Rule 5.2 (d) (Six months from the date on which the tribunal was constituted); 2016 ACICA Expedited Arbitration Rules, Article 4.1 (Four months of the appointment of the arbitrator if there is no counterclaim or setoff); 2015 CIETAC Arbitration Rules, Article 62 (Three months from the date on which the tribunal was formed); 2014 ICDR International Expedited Procedures, Article E-10 (Thirty calendar days from the final hearing or receipt of the final written submissions, unless the parties agree otherwise); 2014 WIPO Expedited Arbitration Rules, Article 58 (1 month from the date on which the proceedings are declared closed, which should occur on the earliest of three months following delivery of the Statement of Claim or the establishment of the Tribunal); 2013 HKIAC Administered Arbitration Rules, Article 41.2(f) (Six months from the date on which the file was transmitted to the arbitral tribunal, except in exceptional circumstances) ; 2012 Swiss Rules of International Arbitration, Article 42(d) (Six months from the date on which the file was transmitted to the tribunal, except in exceptional circumstances); 2008 DIS Supplementary Rules for Expedited Proceedings, Section 4.3 (Four weeks from the final written submission).

80
See, e.g., the case brought before the Swiss Federal Tribunal, X. Ltd v Z. Ltd, Federal 1st Civil Law Chamber, Case No. 4A_188/2016, 11 January 2017, ASA Bulletin, 2017, Vol. 35, Issue 1, pp. 162-168; see also the summary of the case by Matthias Scherer, "Introduction to the Case Law Section", ibid., pp. 108-114: the expedited proceedings under the 2012 Swiss Rules were applicable. The losing party sought to challenge the award before the Federal Tribunal on the ground that the award had been rendered with a one-day delay. Indeed, the award was issued on 25 February 2016, and the plaintiff argued that the arbitrator was functus officio at that time, the arbitration agreement no longer being valid ratione temporis as of 24 February 2016. The Federal Tribunal found that the arbitrator’s reference to the date of 24 August 2015 as the date of receipt of the file was a clerical error and that the file had in fact been received on 25 August 2015. As a result, the issuance of the award on 25 February 2016 was timely. The Federal Tribunal noted that this would have been the case even if the file had been received on 24 August 2015, thus distinguishing this case from an earlier case having resulted in a setting aside, where the arbitrator had caused excessive delays and eventually failed to meet a last agreed time limit for the issuance of the award: see X. AG v Z., BGE/ATF 140 III 75, 4A 490/2013, 28 January 2014 (cited and discussed in Case No. 4A_188/2016).

81
ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration, adopted on 1 March 2017 (hereafter "ICC Note to Parties and Tribunals"), paragraph 93 ("Whenever the arbitral tribunal has conducted the arbitration expeditiously, the Court may increase the arbitrators’ fees above the amount that it would otherwise consider fixing.") and paragraph 94 ("Where the draft award is submitted after the time referred to in paragraph 90 above, the Court may lower the fees as set out below, unless it is satisfied that the delay is attributable to factors beyond the arbitrators’ control or to exceptional circumstances, and without prejudice to any other measures that it may take, such as replacing one or more of the arbitrators […]").
[Page29:]

82
2015 CIETAC Arbitration Rules, Article 49.3 ("The arbitral tribunal shall state in the award the claims, the facts of the dispute, the reasons on which the award is based, the result of the award, the allocation of the arbitration costs, and the date on which and the place at which the award is made. The facts of the dispute and the reasons on which the award is based may not be stated in the award if the parties have so agreed, or if the award is made in accordance with the terms of a settlement agreement between the parties. […]"); 2014 ICDR International Arbitration Rules, Article 30 ("[…] The tribunal shall state the reasons upon which an award is based, unless the parties have agreed that no reasons need be given."); 2014 WIPO Expedited Arbitration Rules, Article 57(c) ("The award shall state the reasons on which it is based, unless the parties have agreed that no reasons should be stated and the law applicable to the arbitration does not require the statement of such reasons."); 1998 DIS Arbitration Rules, Section 34.3 ("The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under section 32 sub. 2.").

83
2016 ACICA Expedited Arbitration Rules, Article 28.3 ("Subject to Article 30.1, the Arbitrator shall state the reasons upon which an award is based in summary form, unless the parties have agreed that no reasons are to be given."); 2016 SIAC Arbitration Rules, Rule 5.2(e) ("the Tribunal may state the reasons upon which the final Award is based in summary form, unless the parties have agreed that no reasons are to be given."); 2013 HKIAC Administered Arbitration Rules, Article 41.2(g) ("the arbitral tribunal shall state the reasons upon which the award is based in summary form, unless the parties have agreed that no reasons are to be given."); 2012 Swiss Rules of International Arbitration, Article 42.1(e) ("The arbitral tribunal shall state the reasons upon which the award is based in summary form, unless the parties have agreed that no reasons are to be given.").

84
2017 SCC Rules for Expedited Arbitrations, Article 42(1): "The Arbitrator shall make the award in writing and sign the award. A party may request a reasoned award no later than at the closing statement." (Emphasis added).

85
See 2017 ICC Arbitration Rules, Appendix II, Article 4(6): "For the purpose of expedited procedures and in accordance with the provisions of Article 1(4) of the Rules and Article 5 of Appendix I, the Court may exceptionally establish a Committee consisting of one member […]." See also Note to Parties and Tribunals, supra note 81, paragraph 100: "If the Expedited Provisions apply, any draft award submitted to the Court will be scrutinised as soon as possible, and in any event no later than two to three weeks of receipt by the Secretariat. The Court may decide, in exceptional circumstances, that any award made under the Expedited Procedure Provisions will be scrutinised by a Committee consisting of one member of the Court (Article 4(6) of Appendix II)."; see, more generally, paragraph 96 of the Note: "The scrutiny process carried out by the Court with the assistance of its Secretariat is a unique and thorough procedure designed to ensure that all awards are of the best possible quality and are more likely to be enforced by state courts. All draft awards undergo a three-step review process, starting with the Counsel of the team in charge of the arbitration that has followed the proceedings since the inception of the arbitration, followed by review by the Secretary General, the Deputy Secretary General or the Managing Counsel, before being submitted for the Court’s scrutiny. For certain arbitrations, generally those involving state parties or dissenting opinions, a court member will draft a report with recommendations on the draft award." See also José Feris, "The 2017 ICC Rules of Arbitration and the New ICC Expedited Procedure Provisions: A View from Inside the Institution", supra note 19, under "Scrutiny of awards": "One of the ICC Court’s chief hallmarks is the scrutiny of awards. It is a crucial quality control check performed by the ICC Court and the Secretariat. The ICC Court is therefore better placed than perhaps any other institution to administer cases on an expedited basis as users will have the assurance of this important safety net. The tribunal’s reasoning and due process are matters typically addressed during the scrutiny process."

86
ICC Note to Parties and Tribunals, supra note 81, paragraph 83: "Any award under the Expedited Procedure Provisions shall be reasoned. Arbitral tribunals may limit the factual and/or procedural sections of the award to what they consider to be necessary to the understanding of the award, and state the reasons of the award in as concise a fashion as possible."

87
See "ICC Court now accountable for any delays relating to scrutiny", accessible on the ICC website at: https://www.iccwbo.be/arbitration-icc-augments-transparency-in-scrutiny-process/: "The latest amendments to the note, adopted by the Bureau of the Court on 28 June 2016 in Hong Kong — the Court’s first ever session outside Paris — also include measures to reduce administrative fees in the case of unjustified delays in the scrutiny process. While ICC had a process in place to impose financial sanctions on arbitrators in case of delay in submitting draft awards to the Court, no measures were in place in case the Court itself was the cause of the delayed scrutiny." (Emphasis added)

88
Black’s Law Dictionary, Tenth Edition (2009), under "summary judgment".

89
It should be noted that the English version of certain rules may refer to "summary" procedures: this is the case, for example, of the CIETAC expedited proceedings rules under Articles 56 to 64 [Page30:] of the CIETAC Arbitration Rules, under Chapter IV, which are entitled "Summary Procedure"; regardless of the use of the word "summary", this chapter more appropriately concerns expedited proceedings.

90
For a description of the terms of the debate, see, e.g., Gary Born and Kenneth Beale, "Party Autonomy and Default Rules: Reframing the Debate over Summary Disposition in International Arbitration", ICC International Court of Arbitration Bulletin, 2010, Vol. 21, No. 2, p. 1. See also Grigori Lazarev, "Summary procedures in international arbitration: a case for flexibility", 15 July 2016, Practical Law Arbitration Blog, Thomson Reuters, accessible at http://arbitrationblog.practicallaw.com/summary-procedures-in-international-arbitration-a-case-for-flexibility/.

91
See, e.g., First Interim Award in ICC Case No. 11413, ICC International Court of Arbitration Bulletin, 2010, Vol. 21, No. 2, p. 34. In this arbitration, which was governed by New York law with a seat in London, the respondent moved to dismiss the claimant’s economic duress claim, contending that "because the claim of duress that is the foundation of the second supplement is utterly without any legal basis […] this claim should be dismissed by the Tribunal as a matter of law […]". The Tribunal noted that "[n]either the ICC Rules, nor the English 1996 Act provide specific provision with respect to motions to dismiss". The Tribunal then referred to Article 15 of the 1998 ICC Rules, as well as Section 33 of the 1996 English Arbitration Act, which allow a tribunal to "adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined". The Tribunal concluded, in light of those provisions, that "it is empowered to grant a motion to dismiss if it is reasonable to do so in the circumstances of a case". The Tribunal noted, however, that "[t]he fact that [the tribunal’s] decision on the merits cannot be appealed is of serious concern and makes its position fundamentally different from that of a New York court". Accordingly, it held that "a motion to dismiss, which is grounded on assumptions of facts and prevents the parties from submitting elaborated memorials and submitting evidence should not be granted unless the arbitrators are confident that it is crystal clear that the claim may have no legal basis". In that case, the tribunal concluded that the standard was not met and that the claimant’s duress claim could not, therefore, be summarily dismissed: see paragraph 48, pp. 12-13.
See also ICC Case No. 12297, Procedural Order of 22 August 2003, in Special Supplement 2010: Decisions on ICC Arbitration Procedure: A Selection of Procedural Orders issued by Arbitral Tribunals acting under the ICC Rules of Arbitration, 2003-2004: in that case, the parties had accepted that, in the absence of procedural rules expressly authorising summary disposition procedures, the Tribunal had the inherent authority to grant the respondent’s application to dismiss. In its decision, the Tribunal noted that "the ICC Rules are silent in respect to the specific question of a procedure for the summary disposition of pleadings, issues or claims" and that, under Article 15 of the ICC Rules, "[t]he proceedings before the Arbitral Tribunal shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration". Accordingly, the Tribunal concluded that it "falls to the Arbitral Tribunal to determine the pertinent procedure in accordance with Article 15 of the ICC Rules […]". In the circumstances of the case, however, the Tribunal applied a high threshold to the summary disposition of the claim. While it concluded that the right to be heard is not absolute and "circumstances may exist in which an arbitral tribunal might decide to strike out a case from its very outset, and properly do so without overstepping the bounds of the right to be heard", it held that "the standards for summary judgment […] (i.e. ‘no merit’ and ‘no genuine issue’), are simply unsuitable for the disposition of a case at the very outset of proceedings, before any investigation of the facts. The substance of the right to be heard would simply not be respected if summary judgment could be given straight off ‘the crack of the bat’". It therefore rejected the motion in light of the complex and unresolved issues of fact at play, holding that, under applicable Canadian law, "a case must be hopeless to be struck out and extreme caution must be used on such a motion" (pages 3, 4 and 7).

92
2017 SCC Rules for Expedited Arbitrations, Article 40(1).

93
Id., Article 40(6).

94
2016 SIAC Arbitration Rules, Rule 29.1.

95
Id.

96
Id., Rule 29.4.

97
See, e.g., Inna Uchkunova and Oleg Temnikov, "Rule 41(5) of the ICSID Arbitration Rules: The Sleeping Beauty of the ICSID System", Kluwer Arbitration Blog, 27 June 2014, accessible at: http://kluwerarbitrationblog.com/2014/06/27/rule-415-of-the-icsid-arbitration-rules-the-sleeping-beauty-of-the-icsid-system/.

98
See ICSID, "Possible Improvements of the Framework for ICSID Arbitration", ICSID Secretariat Discussion Paper, 22 October 2004; ICSID, "Suggested Changes to the ICSID Rules and [Page31:] Regulations", Working Paper of the ICSID Secretariat, 12 May 2005, p. 7; Antonio Parra, ICSID from 2000 to 2010, History of the ICSID Convention, Oxford University Press, 2012, pp. 224-225, p. 235.

99
Rule 41(5) of the ICSID Arbitration Rules reads in full: "Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks legal merit."

100
From 2006 to 2016, ICSID registered an overall 398 cases (see ICSID, "The ICSID Caseload — Statistics", Issue 2017-1). The number of 23 cases, however, also takes into account the latest decisions rendered at the time of publication of this contribution, namely Ansung Housing Co., Ltd. v People’s Republic of China (ICSID Case No. ARB/14/25), Award, 9 March 2017 (resulting in a dismissal of claims based on Rule 41(5)), and Eskosol S.p.A. in liquidazione v Italian Republic (ICSID Case No. ARB/15/50), Decision on Respondent’s Application Under Rule 41(5), 20 March 2017 (rejecting Italy’s objections under Rule 41(5)). For a statistical analysis, see also Kate Parlett, "Rule 41(5) Applications for Summary Dismissal", 15 November 2016, British Institute of International and Comparative Law, available at https://www.biicl.org/documents/1389_kparlett_20essexst_rule415.pdf?showdocument=1.

101
These are: Trans-Global Petroleum, Inc. v Hashemite Kingdom of Jordan (ICSID Case No. ARB/07/25), Decision on the Respondent’s Objection Under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008; Global Trading Resource Corp. and Globex International, Inc. v Ukraine (ICSID Case No. ARB/09/11), Award, 1 December 2010; RSM Production Corporation and others v Grenada (ICSID Case No. ARB/10/6), Award, 10 December 2010; Emmis International Holding, B.V., Emmis Radio Operating, B.V., and MEM Magyar Electronic Media Kereskedelmi és Szolgáltató Kft. v Hungary (ICSID Case No. ARB/12/2), Decision on Respondent’s Objection Under ICSID Arbitration Rule 41(5), 11 March 2014; Accession Mezzanine Capital L.P. and Danubius Kereskedöház Vagyonkezelö Zrt. v Hungary (ICSID Case No. ARB/12/3), Decision on Respondent’s Objection Under ICSID Arbitration Rule 41(5, 16 January 2013; Ansung Housing Co., Ltd. v People’s Republic of China (ICSID Case No. ARB/14/25)], Award, 9 March 2017.

102
Trans-Global Petroleum Inc. v Jordan, ICSID Case No. ARB/7/25, Decision on the Respondent’s Objection Under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008, paragraphs 88-90: "the ordinary meaning of the word ["manifestly"] requires the respondent to establish its objection clearly and obviously, with relative ease and dispatch. The standard is thus set high. Given the nature of investment disputes generally, the Tribunal nonetheless recognises that this exercise may not always be simple, requiring (as in this case) successive rounds of written and oral submissions by the parties, together with questions addressed by the tribunal to those parties. The exercise may thus be complicated; but it should never be difficult. The special procedure imposed by Article 41(5) upon the parties and the tribunal confirms this meaning. First, the prescribed time-limits [under Article 41(5)] are severely truncated, indicating a summary procedure not susceptible to elaborate, lengthy memorials requiring detailed preparation, presentation and deliberations. The time-limit of 30 days for the objection is short, as is the requirement that the objection be addressed to the tribunal at or before the first session, the latter ordinarily to take place within 60 days of the tribunal’s constitution under Rule 13(1) of the ICSID Arbitration Rules. Moreover, the requirement that the tribunal decide the objection quickly, particularly (if appropriate) by a written, reasoned award ‘at the first session or promptly thereafter’, confirms that the rule is directed only at clear and obvious cases".

103
For a discussion of the notion of "investment" within the meaning of Article 25 of the ICSID Convention, see, e.g., Emmanuel Gaillard and Yas Banifatemi, "The Long March towards a Jurisprudence Constante on the Notion of Investment, Salini v Morocco, ICSID Case No ARB/00/4," Building International Investment Law — The First 50 Years of ICSID, (M. Kinnear et al. eds.), Kluwer, 2015, p. 97.

104
Global Trading Resource Corp. and Globex International, Inc. v Ukraine (ICSID Case No. ARB/09/11), Award, 1 December 2010, paragraph 57.

105
PNG Sustainable Development Program Ltd. v Independent State of Papua New Guinea (ICSID Case No. ARB/13/33), Decision on the Respondent’s Objections under Rule 41(5) of the ICSID Arbitration Rules, 28 October 2014, paragraph 89.

106
MOL Hungarian Oil and Gas Company Plc v Republic of Croatia (ICSID Case No. ARB/13/32), Decision on Respondent’s Application Under ICSID Arbitration Rule 41(5), 2 December 2014, paragraph 44. On issues of costs, and the suggestion that, with the increasing experience in Rule 41(5), "in principle, a successful 41(5) objection should trigger a cost-follow-the-event [Page32:] approach", see Michele Potestà, "Preliminary Objections to Dismiss Claims that are Manifestly Without Legal Merit under Rule 41(5) of the ICSID Arbitration Rules", ICSID Convention after 50 Years: Unsettled Issues (Crina Baltag ed), Kluwer Law International, 2016, pp. 249-272, p. 264.

107
Kate Parlett, "Rule 41(5) Applications for Summary Dismissal", supra note 100, p. 5.

108
For a study, based on 221 decisions issued before 31 December 2012, showing that the average duration of investment treaty arbitrations is 3 years and 8 months, see Matthew Hodgson, "Investment Treaty Arbitration: How Much Does it Cost? How Long Does it Take?", 18 February 2004. Compare with Lars Market, "Summary Dismissal of ICSID Proceedings", ICSID Review, Vol. 31, No. 3 (2016), pp. 690-711, p. 697: the author suggests that, given the 30-day time limit to file preliminary objections under Arbitration Rule 41(5), "promptly" would be better understood in terms of days or weeks, rather than months, and queries whether the requirement for promptness on the part of the tribunal was met in instances such as Globex v Ukraine, where the decision was rendered within a five-month period.

109
See, e.g., Adam Raviv, "Achieving a faster ICSID", Transnational Dispute Management, 2014, Vol. 11, Issue 1, pp. 16-18.

110
Although, at the time of writing this contribution, ICC statistics were not available, it is anticipated that users’ recourse to the ICC expedited procedure rules will be met with success, given that more than one third of the ICC Court’s caseload relates to claims below the US$2 million threshold: see José Feris, "The 2017 ICC Rules of Arbitration and the New ICC Expedited Procedure Provisions: A View from Inside the Institution", supra notes 19 and 37.

111
SCC website, http://www.sccinstitute.com/statistics.

112
SCAI website, https://www.swissarbitration.org/files/515/Statistics/SCAI%20Statistics%202015%20and%202004_2015_20160731.pdf.

113
SIAC website, http://siac.org.sg/2014-11-03-13-33-43/facts-figures/statistics.

114
HKIAC website http://www.hkiac.org/about-us/statistics.

115
See 2017 SCC Rules for Expedited Arbitrations, Article 2: "(1) Throughout the proceedings, the SCC, the Arbitrator and the parties shall act in an efficient and expeditious manner. (2) In all matters not expressly provided for in these Rules, the SCC, the Arbitrator and the parties shall act in the spirit of these Rules and shall make every reasonable effort to ensure that any award is legally enforceable." For a slightly different wording, in reference to situations where the expedited procedure rules are silent, see 2017 ICC Arbitration Rules, Appendix VI, Article 5 ("In all matters concerning the expedited procedure not expressly provided for in this Appendix, the Court and the arbitral tribunal shall act in the spirit of the Rules and this Appendix").

116
This is in particular the case with the rules adopted in Article 2.1 of Appendix VI of the 2017 ICC Arbitration Rules: see supra note 56.

117
Supreme Court of Singapore, High Court, AQZ v ARA [2015] SGHC 49, Originating Summons No. 530 of 2014 and Summons No. 3168 of 2014, 13 February 2015.

118
Ibid., paragraph 131. See also the Final Award rendered in SCC Expedited Arbitration O53/2005, in Carita C. H. Wallgren-Lindholm, Helle Lindegaard, Per Franke and Eric M. Runesson, "Final Award rendered in SCC Expedited Arbitration O53/2005", Stockholm International Arbitration Review, 2007, No. 1; in that case, the arbitration agreement provided for a three-member panel while at the same time referring to the 1999 SCC Rules for Expedited Arbitration, Article 12 of which provided for a sole arbitrator; the tribunal found that it was permissible under Article 12 of the Rules to deviate from the Rules’ requirement of a sole arbitrator (see Paragraph 3 of the Award: "the Parties have concluded that the Arbitral Tribunal shall consist of three arbitrators. Thus, the Parties have agreed a deviation from the general rule set forth in Art. 12 of the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce ("Rules") according to which the arbitral tribunal shall consist of a sole arbitrator. Pursuant to the wording of Art. 12 of the Rules such deviation is permissible.").

119
For similar provisions under the 2017 ICC Arbitration Rules, see Article 30.1 ("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.").

120
See, e.g., Klaus Peter Berger and J. Ole Jensen, "Due process paranoia and the procedural judgment rule: a safe harbor for procedural management decisions by international arbitrators", Arbitration International, Volume 32, Issue 3, 1 September 2016, pp. 415–435; Remy Gerbay, "Due Process Paranoia", 6 June 2016, Kluwer Arbitration Blog, accessible at http://kluwerarbitrationblog.com/2016/06/06/due-process-paranoia/.

121
2015 International Arbitration Survey, "Improvements and Innovations in International Arbitration", supra note 1, p. 10.

122
See also the case law cited supra, notes 9, 11, 47, 81, 92 and 119, as well as the case law relating to ICSID Rule 41(5), supra notes 101 through 106.
[Page33:]

123
X. v Y., 4A_294/2008, ASA Bulletin, 2009, p. 144; Swiss International Arbitration Reports, 2008, p. 495.

124
Concerning the alleged manifest oversight and duty to deal with pertinent problems, the Federal Tribunal held: "The right to be heard is violated when some manifest oversight leads the arbitral tribunal to fail to take into consideration some elements which one of the parties submitted to the tribunal. Indeed, that party is thus harmed in its right to ensure that its arguments will be examined by the arbitrators. It is placed in the same situation as though it would not have had the opportunity to present its arguments. In substantiating its appeal against the award, the party allegedly harmed must demonstrate in what way the manifest oversight prevented it from being heard on an important point. In this case, there is no such demonstration in the appeal brief. Indeed, the Appellant merely states that as a consequence of manifest oversight as to the existence or lack thereof of an answer by the Appellant to a formal notice by the Respondent to repair the damages caused, the Arbitrator found that the attachments obtained against the Appellant’s assets were necessary. In saying so, the Appellant states that the alleged manifest oversight led the Arbitrator to an unsustainable finding of the necessity to carry out the litigious attachments. However, it does not establish, neither does it even claim, that the alleged oversight would have prevented it from stating its point of view as to the justification of the disputed attachments. Therefore, the grievance cannot succeed" (Decision, paragraph 3.2.3.2).

125
On the question of the failure of the arbitrator to provide reasons for his procedural decision, the Federal Tribunal stated: "The grievance is groundless. Indeed, the Arbitrator, to the extent that he would have been obliged to reason his procedural decision at all, did so at paragraph 6 of his Procedural order of March 2008, by briefly stating why he thought he should grant the Respondent’s submission" (Decision, paragraph 3.2.1.3). On this question, see also supra, Section on "Reasoned vs Non-Reasoned Awards".

126
Judgment Svea Court of Appeal, Case No. T 6238-10, 24 February 2012, Swedish Arbitration Portal, accessible at https://www.arbitration.sccinstitute.com/Swedish-Arbitration-Portal

127
Ibid., p. 9.

128
English High Court, Travis Coal Restructured Holdings v Essar Global Fund [2014] EWHC 2510 (Comm) (24 July 2014).

129
Ibid., paragraphs 44-45: "In so far as EGFL submits that (at least in the absence of an express power) a summary judgment process by arbitrators necessarily amounts to a denial of due process, I do not accept such a submission. Further, this is not a question that can be addressed in general terms without regard to the particular case. The question before the court in the present instance is whether the procedure adopted by the Tribunal was within the scope of its powers, and was otherwise fair. This is a question of substance, rather than how it was labelled. It depends on the terms of the arbitration agreement and the procedure in fact adopted by the Tribunal. The availability or otherwise of summary judgment procedures in international arbitration generally is an important debate, but not one that the court needs to enter into. The arbitration agreement in clause 7.7 of the Guarantee provided at sub-clause (e) that, "The arbitrators shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any party to be dispositive of any claim or counterclaim, in whole or part, in accordance with such procedure as the arbitrators may deem appropriate, and the arbitrators may render an award on such issue." This clearly gives the Tribunal a wide power in respect of the procedure adopted to determine dispositive issues on the basis it considers appropriate."

130
Ibid., paragraph 50 : "It is in my view apparent from the award and the other material before the court that the Tribunal made every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the nature of the dispute it had to decide. In doing so, it gave each party a fair opportunity to present its case. So far as it was summary, the procedure fell within clause 7.7 of the Guarantee, and particularly sub-clause (e). Against that background, I conclude that EGFL does not have a realistic prospect of showing that the Tribunal exceeded its powers in the procedure which it adopted."

131
See data and existing statistics, supra notes 110 to 114.