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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by Constantine Partasides and Ben Prewett*
In 1923, shortly before establishing its International Court of Arbitration, ICC urged the world of commerce to adopt arbitration agreements:
to the end that expense and delay incident to litigation may be eliminated.1
Such noble aspirations have been associated with arbitration for many centuries,2 and for good reason. Endowed with a flexibility that is one of its great virtues, time and cost in the resolution of commercial disputes can be reduced in the hands of the right arbitral tribunal. For the promise of international arbitration, because of that flexibility, is that every arbitration can be a microcosm of potential procedural reform.3
But does international arbitration, in its modern manifestation, always deliver on that promise? The honest answer to that question is that too often it does not. International disputes of all shapes and sizes are now referred to arbitration, but they are dealt with by a standardised procedure that in reality is "one size" that is offered to "fit all".
The reasons for this tendency towards standardisation are many, and not all of them are unworthy. Standardisation offers predictability, which users expect of a commercial dispute resolution mechanism. That feature is particularly important when the dispute is of significant economic or political dimension, as many international arbitrations now are. We must recognise that the arbitral process is often selected today not because it is particularly fast and cheap, but because it is the only form of international dispute resolution that offers neutrality and international enforceability in the resolution of significant international disputes.
Predictability and thoroughness are not bad features for the pre-eminent method of international commercial dispute resolution to boast. And this is particularly so if the alternative, unpredictable haste, can endanger the intended product of the arbitral process: an enforceable award.
But the road to dispute resolution hell, to borrow a phrase, is paved with good intentions. And the consequence of ensuring that, at every turn, the arbitral process is predictably exhaustive so that there can be no due process complaint, is that parties are not afforded the efficient process that they are due. And that leaves many of us who regularly advise clients on the optimal form of dispute resolution to conclude that if neutrality and [Page111:] enforceability is less of an issue, and if our clients are interested in expeditious and cost-efficient resolution, then national judicial proceedings that offer summary resolution procedures may well be the better way to go.
For unlike judges who do not owe their appointment to the parties, arbitrators are sometimes too wary of taking robust procedural decisions that deprive parties of the exhaustive procedural opportunities they demand. Instead, the well-meaning arbitrator instinctively defers to the parties’ procedural preferences, for fear of their award being set aside, or refused enforcement, for violating the losing party’s due process rights.4
This fear has recently been labelled by some as "due process paranoia"; specifically, "a reluctance by tribunals to act decisively in certain situations for fear of the arbitral award being challenged on thgold standard e basis of a party not having had the chance to present its case fully."5
The costs of due process paranoia are real. Efficient and streamlined dispute resolution is sacrificed in favour of an abundance of procedure at every turn. And such a tendency becomes a self-fulfilling prophecy, by building an inefficient norm against which future complaints of insufficient opportunity to be heard are judged.
In truth, however, there is no good reason for arbitrators to fear making robust procedural decisions. As every modern set of arbitration rules confirms, due process requires only that a party be accorded a reasonable opportunity to be heard, not every opportunity that he may desire.6 What is "reasonable" falls to be assessed in the circumstances, weighed "against the efficient resolution of the dispute" in accordance with "the other party’s rights and both parties’ initial agreement to efficiently resolve their dispute in arbitration".7
Moreover, a careful review of the decisions of national courts (either in an annulment or enforcement context) reassures that they rarely interfere with an arbitral tribunal’s procedural decisions. An analysis of relevant international case law by Professor Klaus Peter Berger and Ole Jensen concluded that courts grant "substantial deference" to decisions on arbitral procedure.8 Remy Gerbay has also conducted a systematic review of all relevant English case law, and concluded that "we have not been able to find a single decision in which the English courts set aside an award because of an overly robust case management decision".9 To the contrary, the English courts have accepted that an arbitral tribunal has the "widest discretion permitted by law to determine the procedure to be adopted".10
This paper focuses on one acute symptom of "due process paranoia": the reluctance of arbitral tribunals to adopt procedures for summary disposition in appropriate cases. For if there is anything that will allow the international arbitral process to live up to its promise, it is the availability of summary judgment where possible and appropriate.
In some cases it will be possible fairly to determine whether a claim or defence is unsustainable as a matter of law, or obviously unsupported by evidence, without the time and expense of a full evidentiary hearing. Surely the promise of international arbitration in such cases is that the arbitral procedure can cut to the chase. Due process cannot mean that a claim or counterclaim that is capable of early disposition must be afforded the opportunity to be dismissed slowly and at greater expense. And if there are [Page112:] any lessons that need to be learned in that regard, we need only look to national courts and practice for such lessons. For the journey that arbitration is undertaking on summary justice has, like so much else, been travelled before over many centuries by our judicial forefathers. We must hope that the lessons can be learnt more quickly in the arbitral context.
A. Summary Disposition in the Courts
Summary disposition is common in many jurisdictions. In this paper, we focus on the procedure and practice in one of the jurisdictions with which we are most familiar: England and Wales.11
In England and Wales, claimants and defendants are entitled to apply for summary judgment under Rule 24.2 of the Civil Procedure Rules:
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
a. it considers that –
i) that claimant has no real prospect of succeeding on the claim or issue; or
ii) that defendant has no real prospect of successfully defending the claim or issue; and
b. there is no other compelling reason why the case or issue should be disposed of at a trial.12
As explained by Lord Hope of Craighead in Three Rivers District Council v Bank of England (No 3), a judgment of the English House of Lords in 2003, summary judgment is an exception to the ordinary "method by which issues of fact are tried in our courts".13 Ordinarily, "[a]fter the normal processes of discovery and interrogatories", the parties "are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence".14 In certain cases, however, "a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible".15 That is the purpose of the summary judgment procedure.
Either party can apply for summary judgment at any time after the defendant has acknowledged service. But in practice, "summary judgment is most usually requested once pleadings have closed, which in England occurs prior to disclosure and witness evidence".16
B. Arbitral Discretion
Until recently, to make a case for the adoption of summary disposition in arbitral procedure, one had to rely on the arbitral tribunal’s general procedural discretion to adopt such procedures as it considered appropriate. Under the 2010 UNCITRAL Rules, for example, that general procedural discretion appears as Article 17(1), which provides that:
Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The [Page113:] arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.17
The need to fall back on general procedural discretion is beginning to change. An increasing number of arbitration rules now make specific provision for applications for summary disposition. Rule 29 of the SIAC Rules, which was introduced in the 2016 revisions to those rules, is perhaps the new gold standard in this regard.18 It provides that:
A party may apply to the Tribunal for the early dismissal of a claim or defence on the basis that:
Such an application must "state in detail the facts and legal basis supporting the application". "[A]fter giving the parties the opportunity to be heard," the Tribunal may, "in its discretion," decide to "grant, in whole or in part, the application for early dismissal". In doing so, the Tribunal’s reasons may be given "in summary form".20
Notwithstanding this new specificity, it is generally accepted that international arbitration has always endowed arbitral tribunals with the requisite procedural tools to fashion a summary procedure.21 Moreover, the two published ICC awards to have considered this issue confirm that, without specific provision, the ICC Rules empower arbitral tribunals to entertain applications for summary disposition.22 Rule 29 of the SIAC Rules and its ilk now merely makes this explicit. Thus, regardless of whether the applicable arbitration rules explicitly provide for summary disposition or not, the question remains what it always has been: will arbitrators take up and make use of the procedural tools undoubtedly available to them? And if they do not, the question becomes: why not?
C. Arbitral Reticence
Despite the broad procedural discretion long conferred on arbitral tribunals, it is uncommon for arbitral tribunals to make use of such discretion to entertain summary disposition. Why are arbitral tribunals so unwilling to do so? As Judith Gill has asked, "[w]hy should a party be allowed to pursue an utterly hopeless claim or defence through possibly years of proceedings, simply because they inserted an arbitration agreement into their contract rather than providing for the jurisdiction of the national courts?"23 — especially given the positive duty on arbitral tribunals to adopt procedures that avoid unnecessary delay or expense?24
Various reasons have been postulated for the reticence of arbitral tribunals to adopt summary procedures.25 Before we consider them, and in the hope that it will help us to put them in historical context, let us embark on a historical journey on how and why summary disposition became such a critical element of the due process that is expected from many national judicial systems.
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A. Origins and The Medieval Merchant Courts
The origins of summary judgment have been traced to the merchant courts of medieval Europe.26 In his classic work on the history of summary judgment in England, Professor John Bauman explains that:
For centuries merchants had little reason to resort to the common law courts for commercial litigation. Commerce was carried on at the borough fairs held pursuant to the King’s franchise, and that franchise included the right to hold a fair or piepowder court. Other towns were authorised to conduct the staple trade, and these towns were privileged to hold courts to settle disputes by the law merchant ‘as to all things touching the staple.’ A summary procedure was the noteworthy feature of these courts.27
The court of "piepowder" was the court of record for each fair or market granted by the King.28 The origins of the term appear to be the French "pieds poudrés", or "dusty feet". According to Sir Edward Coke, Elizabeth I’s Attorney General and prosecutor of Sir Walter Raleigh and the gunpowder plotters, this was "because that for contracts and injuries done concerning the fair or market, there shall be as speedy justice done for the advancement of trade and traffick, as the dust can fall from the foot".29 Later writers, including Sir William Blackstone, argued that "piepowder" originated from the fact that "the court was frequented by merchants with dusty feet, who wandered from mart to mart".30 The court of piepowder was the place where "the disputes of wayfaring merchants, the dusty-footed men, were settled".31
Whatever might be the correct etymology, the court of piepowder was described as "the lowest and at the same time the most expeditious court of justice known to the law of England".32 Alongside the courts of piepowder, the similar courts of staple were established "to give courage to merchant strangers to come with their wares and merchandise into the realm".33 They promised to ensure "that speedy and ready process shall be against him from day to day and from hour to hour," without "driv[ing] [merchants] to sue at the common law."34
Some scholars have divined a uniform, European-wide medieval "law merchant" from the workings of these "merchant courts".35 Others argue that the "law merchant" is a myth, and that there never was a separate legal system or body of doctrine applicable to merchants.36 Perhaps more importantly, most agree that it is "well known that throughout the medieval and early modern period courts throughout Europe modified their procedures to accommodate merchants":
These tribunals adapted their procedures to the perceived needs and desires of the merchants (1) by devising mechanisms whereby specific mercantile customs could be alleged before the court, (2) by speeding up the process of litigation and removing formalities, (3) by permitting proof of mercantile transactions different from the proof that they would allow for other kinds of transactions, and (4) by providing mechanisms for rapid execution of judgments.37
The principal perceived need of Europe’s medieval merchants was speed. As one author observed, they "may not often long tarry in one place for the levying of their merchandises"38 and so "could not tarry for the common law".39 Maritime merchants also demanded that their disputes be resolved [Page115:] by "summary and hasty process from tide to tide" (i.e. after arriving and before departing from port).40 In short, merchants were "men of action, and the contemplative habit of English common law judges did not fall in well with their necessities," because they "insisted upon having not only justice but speedy justice".41
The merchant courts were specially adapted to deliver this "speedy justice". Their "striking feature" was a "summary procedure," in which "[f]ormalities were avoided, few essoins [excuses for nonappearance] were allowed, and an answer to the summons was expected within a day, often indeed within an hour".42 For example, the merchant courts sought to avoid "lengthy testimony under oath"; methods of proof were relaxed; and "[n]otarial attestation was usually dispensed with". As a result, debts could freely be transferred between creditors and more easily proved, and agents did not have to be formally authorised.43 Moreover, merchant creditors could more easily attach the property of their debtors, and "the summons in such cases need not be served fifteen days before the defendant was bound to answer, as it had to be in common law actions".44
The same was true of merchant courts on the continent of Europe. It has been said, for example, that the "commercial judges" of Marseilles were encouraged to decide disputes between merchants "summarily, without regard to the subtleties of the law".45
As a result of these adaptations, the merchant courts were able to decide cases with remarkable speed. This is illustrated by a case heard at Colchester in England, in 1458 or 1459:
Piepowder court held at the moot-hall before the bailiffs, according to the custom of the town beyond memory, and by reason of the market held all day, on Friday before the feast of the Invention of the Holy Cross, at the eighth hour in the forenoon of that day.
To this court came Thomas Smith, who complained that Cristina van Bondelyng was indebted to him for £60 10s. 10d., and he found pledges to prosecute his suit; and the sergeant was ordered to summon her before the court at the ninth hour.
At the ninth hour, plaintiff being present, but defendant not appearing, precept was issued to the sergeant to attach her goods and chattels so that she should appear at the tenth hour.
At the tenth hour, defendant not appearing, the sergeant certified that he had attached twenty-three woollen cloths belonging to her. An order was made to record a first default and to summon her for the eleventh hour.
Again at the eleventh hour, no defendant appearing, a second default was recorded, and a summons issued for her appearance at the first hour after noon.
At that hour, defendant being still contumacious, a third default was recorded. Plaintiff was permitted to prove his debt, and appraisers were sworn to inspect and value the goods seized. Judgment was recorded for plaintiff for his debt and 26s. 8d. damages.
At the fourth hour after noon the appraisers returned the value of the goods at £61 4s., which were delivered to the plaintiff; and he found pledges to answer defendant in the same court, should she plead in a year and a day [in the following year].46
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As put by Sir John Baker, the merchant courts "offered an exemption from, or a short circuit through the delays of due process as embodied in the forms of action and jury system of the two benches" in the common law courts.47
Many of the large, complex disputes that are subject to international arbitration today could not, of course, have been decided in one morning at Colchester (pleasant though Colchester may be). Nevertheless, parallels between the merchant courts and the system of arbitration can readily be discerned.
First, they share DNA: the merchant courts were a forerunner of modern international arbitration. The piepowder and staple courts are described as arbitral bodies, and it is "very common" to say that "commercial arbitration had its beginning with the practices of the market and fair courts and in the merchant gilds".48
Secondly, the success of the merchant courts was achieved through the use of their flexibility to meet the needs of their users. Their procedural flexibility shone through on multiple levels; from their approach to methods of proof, to speed of process, to mechanisms for execution. As a result, the merchant courts became an attractive alternative to the common law courts, which were mired in delay.
Regrettably, this is not where the parallels end. For perhaps like international arbitration in its most modern manifestation, the courts of piepowder were stifled over time by the formalism and inefficiencies of the common law courts. And it was this negative evolution that led eventually, as an attempt to rediscover the lost promise of the merchant courts, to the emergence of summary judgment as part of the system of the common law courts.
B. The Stifling of the Merchant Courts and the Emergence of Summary Judgment
Notwithstanding their virtues, the merchant courts declined in importance over time.49 It is not clear why this happened. Some say it was the result of "increased wealth and the improvement in transport" diminishing the importance of local fairs.50 Others point to the merchant courts coming "under the control of legally trained recorders or stewards who … may have substituted some of the formality of the common law for the flexible procedures which characterised the medieval law merchant".51 And so eventually, "the old law merchant" gave way to the common law courts.52
And so merchants increasingly found themselves bogged down in judicial quagmires. Already in the 15th century, Sir John Fortescue, the Chief Justice of the King’s Bench, remarked on the "huge delays" in the English courts, which "withhold petitioners from their right" and "impose an intolerable burden of expense".53 Over time, matters did not improve. By the mid-19th century, it was said that English law had reached "the apotheosis of legal formalism".54 As one observer remarked, in a letter of "Advice to a Friend against going to Law":
The Law… I look upon, more than any one Thing, as the proper Punishment of an over-hasty and perverse Spirit… [A]fter you have expended large Sums of Money, and squandered away a deal of Time in Attendance on [Page117:] your Lawyers, and Preparations for Hearing, one Term after another, you will probably be of another Mind, and be glad Seven Years hence to leave it to that Arbitration which now you refute.55
Delays in the courts were the direct result of procedural defects. In the Court of Chancery, "the glaring defect was the time consuming procedure for taking testimony by written deposition".56 In the Court of King’s Bench, "pleading was the chief offender": requirements for written pleadings "became increasingly complex and technical".57 An insignificant error in the form of a pleading could lead to the dismissal of an entire case. And perhaps most relevantly for present purposes, debtors who lacked a genuine defence to an action for debt would simply invent one. In so doing, they could thereby force even the most straightforward of cases to trial, inflicting significant costs and delay on creditors.58
These defects in the English legal system eventually led to a procedural full circle. And so in 1855, "Keating’s Act" (the Summary Procedure on Bills of Exchange Act) was enacted.59 The purpose of Keating’s Act was set out in its preamble, as follows:
Whereas bona fide holders of dishonoured Bills of Exchange and Promissory Notes are often unjustly delayed and put to unnecessary Expense in recovering the Amount thereof by reason of frivolous or fictitious Defences to Actions thereon, and it is expedient that greater facilities than now exist should be given for the Recovery of Money due on such Bills and Notes …60
Keating’s Act thus invented a procedure by which a creditor under a bill of exchange or promissory note could "obtain a specially indorsed writ warning the defendant that judgment would be entered against him unless he obtained leave to appear within twelve days after the service of the writ". The defendant would only be granted leave to appear and defend the claim "upon… paying into court the amount demanded by the writ, or when affidavits disclosed a defense to the action or facts the judge considered sufficient to require a trial".61
And so in passing Keating’s Act, Parliament sought to restore a measure of procedural efficiency to the determination of claims before England’s courts. It was, as Professor Bauman explains, "the response to economic and social pressures that could be withstood no longer". These were pressures that had been applied by "laymen and in particular the newly ascendant mercantile group that found the delays and technicalities of common law procedure unendurable".62
Thus, as a result of the pressure applied by the predecessors to today’s commercial users of arbitration, the courts once again raised the promise of delivering "speedy justice," albeit in a narrow category of cases. Indeed, Parliament expressly recognised the ancestral connection to the summary procedures of the merchant courts in the course of their debates. The progenitor of Keating’s Act was a proposal introduced by Lord Brougham, a member of the Scottish Bar, who proposed to adopt a summary judgment procedure akin to that in Scotland.63 His proposal differed from Keating’s Act in two principal respects: first, the creditor was entitled to execution after "registering" the debtor’s default, rather than having to wait for judgment; second, the debtor could suspend execution only by providing [Page118:] security, whereas under Keating’s Act the debtor had other means of resisting enforcement at his disposal.64 During the Parliamentary debates of his proposal, Lord Brougham explained that:
The process, six centuries ago, under statutes merchant and statutes staple, was exactly the summary diligence now desired, by which the debtor’s person, land, and goods were answerable, without any action; and this, in all cases of debt acknowledged. Had bills of exchange, therefore, existed in Edward the First’s time, to them this summary execution would of course have been applied.65
While Lord Brougham’s proposal eventually gave way to the procedure proposed by Sir Henry Keating, the principle remained the same: while enforcement might require more than one day’s effort in Colchester, a creditor with a straightforward case should no longer be subject to the rigmarole of a full trial by an unscrupulous debtor.
Keating’s Act was initially restricted to actions under bills of exchange and promissory notes. However, it was significantly extended over time. And so the Judicature Acts of 187366 and 187567 extended the summary judgment procedure to cover debts and liquidated sums of money. Later amendments expanded the procedure yet further to cover the full gamut of actions in the Queen’s Bench division, subject to enumerated exceptions for defamation, malicious prosecution, false imprisonment, seduction, breach of promise of marriage, and actions in which fraud was alleged by the plaintiff.68 These exceptions have since been whittled down even further. Today, the court may give summary judgment (i) "against a claimant in any type of proceedings", or (ii) "against a defendant in any type of proceedings" except "proceedings for possession of residential premises against… a mortgagor [or] a tenant… [and] proceedings for an admiralty claim in rem".69
In a word, the procedure in Keating’s Act enjoyed "spectacular" growth.70 It also became the template for summary judgment procedures adopted in a number of Commonwealth jurisdictions,71 and in the United States.
As in England, the United States had been plagued by the practice of false pleading by defendant debtors.72 While some states conducted early experiments with summary judgment procedures,73 pressure grew in the early part of the twentieth century to adopt an unlimited, federal summary judgment procedure, based on Keating’s Act.74
The reformists "emphasised the needs of the commercial community and the ineptitude of the ordinary procedure to satisfy them".75 The most influential of these was Professor, and later judge of the Second Circuit Court of Appeals, Charles Clark. He urged the adoption of an unlimited federal summary procedure to "secur[e] speedy justice for creditors" and because "it is available for the prompt disposition of bona fide issues of law as well as of sham defences," as a result of which "the whole judicial process is … made to function more quickly more quickly and with less complexity than in the ordinary long drawn out suit".76 His overriding concern was that "[t]o the extent that our courts are permitting avoidable delay, to that extent are they denying justice".77
The United States eventually adopted Rule 56 in 1938, under which both plaintiffs and defendants can apply for summary judgment in any type of proceeding,78 thereby "usher[ing] in a new and expansive approach to [Page119:] summary judgment".79 English law therefore suffered through a half-millennium-long interregnum before summary judgment was resurrected by Parliament in Keating’s Act. In the United States, progress had been quicker.
C. The Judicial Development of Summary Judgment
In the more than 150 years since Keating’s Act was passed, the scope of the summary judgment procedure has broadened to cover cases of virtually every type. Yet throughout this process of expansion, courts have kept a close eye on ensuring that the requirements of due process have not been compromised.
1. Judicial Safeguarding of Due Process
English courts have shown an enduring preoccupation with reconciling the use of summary judgment with the demands of due process.80 Two judgments of the House of Lords, one old and one relatively new, illustrate the point.
The case of Wallingford v Mutual Society was decided by the House of Lords in 1880—soon after the expansion of the summary judgment procedure by the Judicature Acts of 1873 and 1875.81 The Mutual Society, the plaintiff, paid out advances to its members, which were to be repaid together with interest over time. Members also paid monthly subscriptions. Mr Wallingford, the defendant, obtained advances from the Society, which he failed to repay. The Mutual Society sued for unpaid advances, interest, and subscription fees, and sought summary judgment on the basis that Mr Wallingford had "no defence".
The Lord Chancellor described the summary judgment mechanism, which he regarded as of "great public importance", as follows:82
It is a very valuable and important part of the new procedure introduced under the Judicature Act, that the means should exist of coming by a short road to a final judgment, when there is no real bona fide defence to an action. But it is of at least equal importance, that parties should not in any such way, by a summary proceeding in Chambers, be shut out from their defence, when they ought to be admitted to defend.
Mr Wallingford had filed an affidavit contesting the debt on various grounds, including that he was entitled to have credit for "particular sums or items," relating to "certain securities, some of which were alleged to have been partly realised".83 The Lord Chancellor held that "nothing but an account could sh[o]w what the mortgagees ought to give credit for, and what they ought not to give credit for" and therefore "so far as the account was concerned, it would have been right and proper to let in the Appellant to defend".84
But Mr Wallingford also made a bare allegation that he had been induced to enter the Society by fraud.85 In decades past, such an allegation alone would have necessitated trial. Under England’s new summary judgment procedure, however, this allegation was given short shrift. The Lord Chancellor held that:
With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is [Page120:] condescended upon, in a manner which would enable any Court to understand what it was that was alleged to be fraudulent. These allegations, I think, must be entirely disregarded; and the conclusion is, that it is only for the purpose of taking the account that any defence ought to be admitted in this case.86
And so, while the Court was concerned to ensure that Mr. Wallingford not be "shut out from [his] defence," his right to a defence was not engaged by wholly unsubstantiated allegations.
More recently, the leading decision on summary disposition in England is the judgment of the House of Lords in Three Rivers.87 Lord Hope took as his starting point the need to "ensure that there is a fair trial":
The overriding objective of the [Civil Procedure Rules] is to enable the court to deal with cases justly: rule 1.1. To adopt the language of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms with which this aim is consistent, the court must ensure that there is a fair trial.88
Lord Hope went on to endorse a passage from Swain v Hillman, a judgment of Lord Woolf in the Court of Appeal, in which Lord Woolf observed that summary judgment "saves expense" and "achieves expedition", but urged that "[u]seful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial."89 According to Lord Hope, "the question" is therefore "whether the claim has no real prospect of succeeding at trial," and it "has to be answered having regard to the overriding objective of dealing with the case justly".90
Lord Hope considered there to be two "well-recognised" situations in which a court can safely conclude that a claim or defence has "no real prospect" of success. First:
[I]t may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible.91
Secondly, "[i]n other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance". While litigants are ordinarily entitled to have factual issues resolved at trial, in certain cases "[i]t may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based." This depends, in turn, on the complexity of the case: "[t]he simpler the case the easier it is likely to be to take that view".
More complex cases are instead "unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence".92 Lord Hope warned against conducting such a mini-trial in the context of an application for summary judgment. For example, in Wenlock v Moloney, a claim had been disposed of by way of summary judgment after just such a "mini-trial" — after "a four day hearing on affidavits".93 That decision was overturned on appeal, on the basis that:
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… this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power.94
As Lord Hope concluded, summary judgment is instead "designed to deal with cases that are not fit for trial at all."95
In equal measure, however, the House of Lords also emphasised, in both Wallingford and Three Rivers, that due process did not require giving a plaintiff or defendant an exhaustive opportunity to advance hopeless claims or defences. Indeed, as explained above, the very mischief that Keating’s Act was designed to address included "false pleadings" by debtors, in order to frustrate their creditors.
In Wallingford, Lord Hatherley explained that in such cases it was better for both parties that the case be resolved "as speedily as possible":
Simply allowing legal proceedings to take place, in order that delay may be applied to the administration of justice as much as possible, is not an end for which we can conceive the Legislature to have framed the provisions which now exist under the several Judicature Acts. If a man really has no defence, it is better for him as well as his creditors, and for all the parties concerned, that the matter should be brought to an issue as speedily as possible.96
Similarly, in Three Rivers, Lord Millett emphasised that due process was not a one-way street. It was "not just" for a party to be subjected to a "lengthy and expensive trial" in the face of an unfounded claim or defence:
I agree with my noble and learned friend Lord Hope of Craighead that, while cases should in principle be disposed of as expeditiously and cheaply as the circumstances permit, the most important principle of all is that justice should be done. But this does not mean justice to the plaintiff alone. It is not just to a plaintiff to strike out his claim without a trial unless it has no real prospect of success. It is not just to defendants to subject them to a lengthy and expensive trial to defend their integrity when there is no foundation in the evidence for the attack upon it.97
2. Judicial Confirmation of the Compatibility of Summary Judgment with Due Process
As we have seen, summary judgment in the English courts is considered to be entirely consistent with a party’s right to due process. Indeed, this has been confirmed explicitly by the English Court of Appeal, which has accepted that summary procedure does not violate the right to a fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The question arose in Kent v Griffiths, which concerned a claim for damages for personal injury against two doctors and an ambulance service.98 The claimant had suffered an asthma attack at home. Her doctor telephoned the ambulance service to have the claimant transported to hospital immediately. The ambulance was delayed, and shortly before arriving at hospital the claimant suffered a respiratory arrest causing brain damage. The ambulance crew subsequently falsified their records to show an earlier arrival time.99
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The defendants unsuccessfully applied to have the claims against them summarily dismissed. Following a trial, the claims against the doctors were dismissed; the claim against the ambulance service was upheld.100
On appeal, Lord Woolf MR considered whether European jurisprudence on the right to a fair and public hearing under Article 6(1) of the European Convention "may be influencing the House of Lords to adopt a more restrictive approach to the exclusion of liability to categories of cases without first ascertaining their precise facts".101 Lord Woolf accepted "the dangers of a blanket approach" in such cases.102 However, he rejected unreservedly the proposition that "even when the legal position is clear and an investigation of the facts would provide no assistance, the courts should be reluctant to dismiss cases which have no real prospect of success". In terms that arbitrators would do well to consider, Lord Woolf held that:
Courts are now encouraged, where an issue or issues can be identified which will resolve or help to resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense. There is no question of any contravention of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms… in so doing. Defendants as well as claimants are entitled to a fair trial and it is an important part of the case management function to bring proceedings to an end as expeditiously as possible.103
3. Judicial Confirmation of the Compatibility of Summary Judgment with National Arbitration Laws and the New York Convention
Questions of due process have also arisen in the context of challenges to arbitral awards rendered on the basis of a summary procedure. Precisely such a challenge was recently dismissed by the English High Court in Travis Coal Restructured Holdings LLC v Essar Global Fund Limited.104 In so doing, the Court accepted that summary disposition is, as a matter of principle, consistent with due process and permissible under the Arbitration Act 1996.
Essar Global had argued that an arbitral award in Travis Coal’s favour should be set aside, because the arbitral tribunal had summarily approved of Travis Coal’s claim. This argument was rejected by the Court, which held:
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.105
In the wake of Travis Coal, it is therefore safe to conclude that if the parties have "a reasonable opportunity to present their case, and there are no contested issues of fact relevant to the summary judgment application, the adoption of summary judgment procedures will not offend the requirements of due process under the English Arbitration Act."106
Similarly, such challenges in the United States courts are almost certain to fail. The United States courts have "repeatedly ruled that summary disposition of cases by arbitrators is valid and enforceable … under the Federal Arbitration Act".107 For example, in Sherrock Brothers, Inc. v DaimlerChrysler Motors Co, the Third Circuit Court of Appeals held that:
Granting summary judgment surely falls within this standard [of broad discretion to the arbitrator] and fundamental fairness is not implicated by an arbitration panel’s decision to forego an evidentiary hearing because of [Page123:] its conclusion that there were no genuine issues of material fact in dispute. An evidentiary hearing will not be required just to find out whether real issues surface in a case.108
As one commentator has noted, this result is hardly surprising, "since resolution of court cases via dismissal on the pleadings and summary judgment have long been recognised as appropriate" by the United States courts, such that "disallowing such results in arbitration would be anomalous."109
More can be said on the important subject of enforcement. But as that is the focus of another contributor to this dossier, we move on finally to applying these lessons of history in international arbitration.
As already mentioned, different commentators have postulated various reasons to explain why arbitral tribunals are reticent to adopt summary procedures.110 By far the most important and enduring is this: the fear that, by adopting a summary procedure, an arbitral tribunal will create a due process risk to the enforcement of the award.111 But as the lessons from judicial history teach us, such fears are unfounded.
As we have seen, the existing legal framework of international arbitration is undoubtedly sufficient to endow arbitral tribunals with the discretion to adopt summary procedures in appropriate cases. As we have also seen, summary procedures can be fully compatible with all parties’ rights to due process, including those parties facing a doomed claim, counterclaim or defence thereto. It is our hope that the following lessons of judicial history and practice will dispel any doubts that may linger in this regard.
Lesson No. 1: there is nothing recklessly innovative about summary judgment; it is a time-honoured procedural solution for the rapid disposition of straightforward cases. Over 500 years ago, the medieval merchant courts thrived on a summary procedure that ensured that people of commerce received the "speedy" justice they required. In the 19th century, Keating’s Act in England created a summary procedure for the holders of bills of exchange, to ensure that they could enforce a simple debt claim without the cost and delay of a full trial. Summary judgment has since emerged — literally over the course of centuries — to become an established means of avoiding the unnecessary costs and delay of unmeritorious claims or defences in all types of cases. There is no good reason why summary procedures should not fulfil the same role in international arbitration to break the siege of "one size fits all" standardised procedures. Shorn of labels, selecting the procedure that best suits the particular requirements of the dispute — whether that be a summary procedure in a straightforward dispute, or a more exhaustive procedure in a complex dispute — is part and parcel of the arbitral discretion to tailor the appropriate procedure to each individual dispute.
Lesson No. 2: the emergence of summary judgment with Keating’s Act was a reaction to deep-felt dissatisfaction with the efficiency of the English judicial system. Against the backdrop of a quagmire of expense and delay, summary judgment was a legislative response to litigants’ cry for help. An echo of the same ancient cry can now be heard emanating from the lips of [Page124:] too many users of the modern international arbitral process. Consequently, much ink has been spilt on the increasing complexity and rigidity of modern international arbitration practice. While these are not necessarily flaws in the system, they do become systemic flaws when they become inescapable features of most arbitrations. In truth, that is increasingly the reality of international arbitration today: parties to an arbitration must invariably complete all of the standard pre-hearing pleading and evidence-gathering steps, and then attend a full hearing on the merits at which all of the evidence relevant to all of the issues is ventilated, regardless of whether the underlying claims and defences have any prospect of success. Faced with this disappointing reality, modern-day merchants will increasingly be asking themselves whether the benefits of neutrality and enforceability in international arbitration are outweighed by the benefits of expeditious and cost-efficient summary judgment procedures in national judicial proceedings.
Fortunately for those of us who believe in international arbitration, we do not need to wait centuries for the solution of an arbitral equivalent to Keating’s Act. For endowed with the general (and under some rules, the specific) procedural discretion to choose the procedure most suited to the efficient resolution of an individual dispute, arbitrators need not look to the legislators at all. It took hundreds of years for summary judgment to be resurrected by legislation in the English courts; in contrast, and as we noted at the outset, each and every arbitration can be a microcosm of potential procedural reform. Arbitral tribunals must wield this procedural discretion with renewed vigour, both to ensure that the instant arbitration is resolved appropriately and efficiently, and to preserve international arbitration’s competitive advantage.
Lesson No. 3: the judgments of courts around the world over many years dispose of any serious concern that summary judgment is inconsistent with the parties’ fair right to be heard. The English courts have a 150-year head start on international arbitration in deciding applications for summary judgment. Long before the international arbitration community began to grapple with the demands of due process and summary procedures, such issues were addressed and resolved — positively — again and again. The rich national jurisprudence on the subject can and should be a source of both comfort and guidance to arbitral tribunals.
The judgments of the courts should be a source of comfort in that, as shown above, they have resoundingly confirmed that summary judgment is, in principle, consistent with due process.112 Just as summary judgment is considered to be consistent with due process in judicial fora, so it must be in the arbitral forum, in which parties expressly give the power to the arbitral tribunal to adopt the procedures they consider most appropriate.
The judgments of the courts should also be a source of guidance in that they demonstrate, across countless fact scenarios, how to accommodate the parties’ due process rights in the context of an application for summary judgment. As Lord Hope emphasised in Three Rivers, in considering an application for summary judgment a decision-maker’s "overriding objective" is "to deal with cases justly" and to "ensure that there is a fair trial".113 Summary judgment is one means of accomplishing such fairness, not undermining it, for all parties to a dispute.
* Constantine Partasides, Founding partner, Three Crowns LLP, London Ben Prewett, Associate, Three Crowns LLP, London
1 The New York Times, "Favor World Board to Facilitate Trade," 19 June 1921.
2 In 1622, the merchant and author Gerard de Malynes described the referral of disputes to "Arbitrators chosen and elected by both Parties to end their differences with Brevity and Expedition, to avoid Suits in Law, which unto Merchants are inconvenient." de Malynes, Gerard, Consuetudo, vel Lex Mercatoria or The Ancient Law-Merchant (3rd. ed, 1686), p 303.
3 Blackaby and Partasides, Redfern and Hunter on International Arbitration (6th ed, 2015), para 3.229.
4 See, eg, Berger, Klaus Peter and Jensen, Ole, Due Process Paranoia and the Procedural Judgment Rule: a safe harbour for procedural management decisions by international arbitrators, 32(3) Arb Int’l 415 (2016), pp 418-420; Gerbay, Remy, "Due Process Paranoia", Kluwer Arbitration Blog, 6 June 2016.
5 Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration (2015), p 10. Notably, due process paranoia was "repeatedly raised" in Queen Mary’s 2015 International Arbitration Survey, including by arbitrators who "identified this phenomenon as both problematic and commonplace". "[M]any" arbitrators revealed that "this concern has influenced decisions they have made when sitting as arbitrator". Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration (2015), p 10.
6 See UNCITRAL Rules 2010, Article 17(1); ICC Rules of Arbitration 2012, Article 22(4); LCIA Arbitration Rules 2014, Article 14(4)(i); Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce 2017, Article 23(2); China International Economic and Trade Arbitration Commission Rules, Article 33(1); HKIAC Administered Arbitration Rules 2013, Article 13(1). While Article 18 of the UNCITRAL Model Law states that "each party shall be given a full opportunity of presenting his case", it is clear that this is best interpreted as requiring a "reasonable" opportunity. See Blackaby and Partasides, Redfern and Hunter on International Arbitration (6th. ed, 2015), para 6.14 ("in this context, the word ‘full’ must be given a sensible meaning, and in practice it seems unlikely that a national court would set aside an award where the tribunal took a clearly reasonable and proportionate approach to limiting the scope of the evidence that a party wished to present"); Berger, Klaus Peter and Jensen, Ole, Due Process Paranoia and the Procedural Judgment Rule: a safe harbour for procedural management decisions by international arbitrators, 32(3) Arb Int’l 415 (2016), pp 421-423.
7 Berger, Klaus Peter and Jensen, Ole, Due Process Paranoia and the Procedural Judgment Rule: a safe harbour for procedural management decisions by international arbitrators, 32(3) Arb Int’l 415 (2016), pp 422-423.
8 Berger, Klaus Peter and Jensen, Ole, Due Process Paranoia and the Procedural Judgment Rule: a safe harbour for procedural management decisions by international arbitrators, 32(3) Arb Int’l 415 (2016), p 423.
9 Gerbay, Remy, "Due Process Paranoia," Kluwer Arbitration Blog, 6 June 2016.
10 Brandeis Brokers Ltd. v Black [2001] 2 Lloyd's Rep. 359.
11 Motions for summary disposition are also commonplace in the courts of the United States. The two principal mechanisms for summary disposition in the United States are (i) the motion to dismiss for failure to state a claim on which relief may be granted, under Rule 12(b)(6) of the United States Federal Rules of Civil Procedure, and (ii) the motion for summary judgment, under Rule 56. Motions to dismiss are typically made at the outset of a proceeding, whereas motions for summary judgment are typically made shortly before trial. The test for a motion to dismiss is whether, assuming the facts alleged to be true, they "plausibly give rise to an entitlement to relief". Ashcroft v Iqbal, 129 S Ct 1937 at 1950. A motion for summary judgment will instead be granted if the applicant can show that "there is no genuine dispute as to any material fact" and the applicant "is entitled to judgment as a matter of law". Federal Rules of Civil Procedure (US), Rule 56(a). See generally Raviv, Adam, No More Excuses: Toward a Workable System of Dispositive Motions in International Arbitration, 28(3) Arb Int’l 487 (2012), p 489; Born, Gary and Beale, Kenneth, Party Autonomy and Default Rules: Reframing the Debate over Summary Disposition in International Arbitration, 21 ICC Ct Bull. 19 (2010), pp 2425. Most Commonwealth jurisdictions also provide for summary judgment procedures. In New Zealand, for example, Rule 12.2 of the High Court Rules provides: "(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action. (2) The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed". In contrast, civil law systems typically do not provide for specific summary judgment procedures, in the sense of a final determination on the merits. This may, in part, be a function of civil law judges having greater control over the taking of [Page126:] evidence in every case, including the ability to truncate a hearing in the face of an unmeritorious claim or defence in any event. Certain civil law systems also provide for expedited procedures by which a party can obtain a limited range of measures in advance of the final determination of the dispute. For example, the kort geding procedure, established by the Netherlands Code of Civil Procedure; and référé procedures, in the French New Code of Civil Procedure. See generally Beale, Ned et al., Summary Arbitration Proceedings: A Comparison between the English and Dutch Regimes, 26(1) Arb Int’l 139 (2010), pp 151-152; "Provisional and Conservatory Measures in the Course of the Arbitration Proceedings" in Fouchard Gaillard Goldman on International Commercial Arbitration. These are, however, only interim measures (although, in practice, "main proceedings are not initiated in many cases", as a result of which "the interim ruling becomes, in effect, the final ruling"). Beale, Ned et al., Summary Arbitration Proceedings: A Comparison between the English and Dutch Regimes, 26(1) Arb Int’l 139 (2010), p 152.
12 Civil Procedure Rules 1998 (England and Wales), Rule 24.
13 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC at 260 (para 95).
14 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC at 260 (para 95).
15 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC at 260 (para 95).
16 Beale, Ned et al., Summary Arbitration Proceedings: A Comparison between the English and Dutch Regimes, 26(1) Arb Int’l 139 (2010), p 141.
17 UNCITRAL Rules 2010, Article 17(1) (emphasis added). See also LCIA Arbitration Rules 2014, Article 14(5) ("The Arbitral Tribunal shall have the widest discretion to discharge these general duties, subject to such mandatory law(s) or rules of law as the Arbitral Tribunal may decide to be applicable; and at all times the parties shall do everything necessary in good faith for the fair, efficient and expeditious conduct of the arbitration, including the Arbitral Tribunal’s discharge of its general duties"); and ICC Rules of Arbitration 2012, Article 22(2) ("In order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties") and Article 25(1) ("The arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means") (emphasis added). Similarly, Article 19(2) of the UNCITRAL Model Law states that "the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate" and Section 34 of the Arbitration Act 1996 provides that "[i]t shall be for the tribunal to decide all procedural and evidential matters", which encompasses "whether and to what extent there should be oral or written evidence or submissions" (emphasis added).
18 Arbitration Rules of the Singapore International Arbitration Centre, Rule 29 ("Early Dismissal of Claims and Defences"). See also ICSID Rules of Procedure for Arbitration Proceedings, Rule 41(5) ("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"); American Arbitration Association, Commercial Arbitration Rules (2013), Article 33 ("Dispositive" Motions) ("The arbitrator may allow the filing of and make rulings upon a dispositive motion only if the arbitrator determines that the moving party has shown that the motion is likely to succeed and dispose of or narrow the issues in the case"); Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce 2017, Article 39(1) ("Summary Procedure") ("A party may request that the Arbitral Tribunal 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 for the arbitration").
19 Arbitration Rules of the Singapore International Arbitration Centre (6th ed, 2016), Rule 29(1).
20 Arbitration Rules of the Singapore International Arbitration Centre (6th ed, 2016), Rule 29(2), (3), (4).
21 See, eg, Born, Gary, International Commercial Arbitration (2nd ed, 2014), p 2244 ("There should be no doubts concerning a tribunal’s general authority (absent contrary agreement and subject to permitting the parties an opportunity to be heard) to make awards based on a dispositive motion"); Gill, Judith, "Applications for the Early Disposition of Claims in Arbitration Proceedings," in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 513 (A J van den Berg ed, 2009), p 522 ("These provisions would seem to provide considerable opportunity for tribunals to be creative in their approach to the early disposition of issues or claims which are legally unsustainable"); Chong, Philip and Primrose, Blake, Summary Judgment in International Arbitrations Seated in England, 33(1) Arb Int’l 63 (2017), p 68 ("[t]he absence of express summary judgment provisions in most international arbitration rules is presumably because arbitration rules are not intended to be overly prescriptive. Instead, arbitration rules are designed to be flexible; typically allowing the tribunal to adopt the proce- [Page127:] dures that are apt to ensure an efficient and fair arbitration"); Raviv, Adam, No More Excuses: Toward a Workable System of Dispositive Motions in International Arbitration, 28(3) Arb Int’l 487 (2012), p 500 ("Given this fairly broad discretion to determine how to proceed, forward-thinking tribunals might well take these rules as permission to resolve a case sooner rather than later"); Beale, Ned et al., Summary Arbitration Proceedings: A Comparison between the English and Dutch Regimes, 26(1) Arb Int’l 139 (2010), p 145 ("Arguably, the general procedural discretion conferred upon the tribunal is wide enough to permit the summary disposition of claims").
22 First Interim Award, ICC Case No 11413, published in ICC Ct Bull 34 (2010) (holding that, while neither the ICC Rules nor the Arbitration Act 1996 specifically authorise summary procedures, in light of the general provisions of the ICC Rules "the view of the Tribunal is that it is empowered to grant a motion to dismiss if it is reasonable to do so in the circumstances of the case"); Procedural Order No 1, ICC Case No 12297, published in Decisions on ICC Arbitration Procedure: A Selection of Procedural Orders Issued by Arbitral Tribunals Acting Under the ICC Rules of Arbitration (2003-2004), ICC Ct Bull, 2010 Special Supplement (2011), pp 47, 49, 54-56.
23 Gill, Judith "Applications for the Early Disposition of Claims in Arbitration Proceedings", in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 513 (A J van den Berg ed, 2009), p 520.
24 See, eg, Arbitration Act 1996, Sections 1(a) ("the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense"), 33(1)(b) ("The tribunal shall… 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"), 40(1) ("The parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings"); ICC Rules of Arbitration 2012, Article 22(1) ("The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute"); UNCITRAL Rules 2010, Article 17(1); LCIA Arbitration Rules 2014, Articles 14(4) and (5); see also De Ly, Filip, "Paradigmatic Changes — Uniformity, Diversity, Due Process and Good Administration of Justice: The Next Thirty Years," in The Evolution and Future of International Arbitration 21 (S Brekoulakis, J Lew and L Mistelis (eds), 2016), pp 21, 27-34 (describing expeditiousness as a "new principle of arbitral procedure", which reinforces the "idea that justice delayed is justice denied", and concluding that "[t]he developments described above establish a pattern under which traditional arbitration principles such as party autonomy and due process and equality of arms are supplemented by an emerging principle of expeditiousness").
25 See Gill, Judith "Applications for the Early Disposition of Claims in Arbitration Proceedings", in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 513 (A J van den Berg ed, 2009), p 523; King, Brian and Commission, Jeffrey, Summary Judgment in International Arbitration: The "Nay" Case, ABA International Law Spring 2010 Meeting 1 (2010) (both listing reasons why arbitral tribunals may be unwilling to adopt summary procedures).
26 See Bauman, John AThe Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana. Law L J 329 (1956), pp 330-331; see also Millar, Robert Wyness, Three American Ventures in Summary Civil Procedure, 38 Yale L J 193 (1928), pp 193-195 (comparing summary judgment to the Roman law principle of summatim cognoscere).
27 Bauman, John AThe Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Ind. Law Indiana L J 329 (1956), p 330 (emphasis added). "Staple" goods were goods over which certain markets had been granted a trade monopoly, such as wool, leather and lead.
28 Wolaver, Earl, The Historical Background of Commercial Arbitration, 83 U Pa L Rev 132 (1934-1935), p 136, citing Cruise, William, Digest of the Laws of England (2nd American ed, 1823) p 180.
29 Coke, Edward, The Fourth Part of the Institutes of the Laws of England (1797), p 272.
30 Gross, Charles, The Court of Piepowder, 20(2) Q J Econ 231 (1906), p 231.
31 Gross, Charles, The Court of Piepowder, 20(2) Q J Econ 231 (1906), p 231.
32 Blackstone, William, Commentaries on the Laws of England (1765-1769) (Book III) (5th ed, 1773) fn.32.
33 The Statute at Large, 27 Edward III (1353) (Pickering ed, 1762), Chapter 2.
34 The Statute at Large, 27 Edward III (1353) (Pickering ed, 1762), Chapters 2, 20.
35 See Berman, Harold, Law and Revolution: The Formation of Western Legal Tradition (1983), pp 333-356; Milgrom, Paul, North, Douglass and Weingast, Barry, The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs, 2(1) Econ & Pol 1 (1990); Trakman, Leon, The Law Merchant: The Evolution of Commercial Law (1983); Benson, Bruce, The Spontaneous Evolution of Commercial Law, 55 S Econ J 644 (1989); Burdick, Francis, [Page128:] What is the Law Merchant?, 2 Colum L Rev 470 (1902); Scrutton, Thomas Edward, "General Survey of the History of the Law Merchant," in Select Essays in Anglo-American Legal History (Volume III 1909), pp 7, 9-12.
36 See Kadens, Emily, The Medieval Law Merchant: The Tyranny of a Construct, 7(2) Journal of Legal Analysis 251 (2015), p 252; see also Baker, J H The Law Merchant and the Common Law before 1700, 38(2) Camb L J 295 (1979), p 322; Sachs, Stephen, From St. Ives to Cyberspace: The Modern Distortion of the Medieval "Law Merchant", 21 Am U Int’l L Rev 685 (2006); Donahue, Charles, Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica, 5(1) Chicago J Int’l L 21 (2004); Kadens, Emily, Order within Law, Variety within Custom: The Character of the Medieval Merchant Law, 5(1) Chicago J Int’l L 41 (2004).
37 Donahue, Charles, Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica, 5(1) Chicago J Int’l L 21 (2004), p 35, citing Nörr, Knut Wolfgang, "Procedure in Mercantile Matters: Some Comparative Aspects," in The Courts and the Development of Commercial Law 165 (Vito V Piergiovanni, ed, 1987), p 195.
38 The Statute at Large, 27 Edward III (1353) (Pickering ed, 1762), Chapter 19.
39 Baker, J H The Law Merchant and the Common Law before 1700, 38 Camb L J 295 (1979), p 301 ("The medieval law merchant was not so much a corpus of mercantile practice or commercial law as an expeditious procedure especially adapted for the needs of men who could not tarry for the common law").
40 Mitchell, William, An Essay on the Early History of the Law Merchant (1904), p 15, citing; Twiss, Travers Monumenta Juridica: The Black Book of the Admiralty (1871).
41 Burdick, Francis, What is the Law Merchant?, 2 Colum L Rev 470 (1902), p 472.
42 Gross, Charles, The Court of Piepowder, 20(2) Q J Econ 231 (1906), p 243; see also Pollock, Fredrick and Maitland, Frederic William, The History of English Law — (Volume I, 1968), Chapter 2 ("the law merchant"… seems to have been rather a special law for mercantile transactions than a special law for merchants. It would we think have been found chiefly to consist of what would now be called rules of evidence, rules about the proof to be given of sales and other contracts, rules as to the value of the tally and the God’s penny"); Mitchell, William, An Essay on the Early History of the Law Merchant (1904), pp 12-16 ("The summary nature of its jurisdiction is a second feature that always characterised the Lex Mercatoria. Its justice was prompt, its procedure summary, and often the time within which disputes must be finally settled was narrowly limited. To prevent lengthy processes it is not rare to find appeals forbidden. Speedy justice, in fact, was necessary for merchants, and… there can be no doubt that it was mainly due to the necessity experienced by the merchants themselves of a speedy settlement of their disputes… [A] specially prompt justice was generally the rule; it was felt that the usual procedure, prompt as it was, did not meet their case"); "Lex Mercatoria", edited and translated in Basile, Mary Elizabeth et. al., Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and Its Afterlife (1998) (observing that one of three general differences between the merchant courts and the "law of the realm" was the speed of judgment: "quod celerius deliberat se ipsam"); Bracton, Henry, Bracton: On the Laws and Customs of England — (Volume1, Woodbine-Thorne ed, 1968-1977), fn. 334 ("Likewise, on account of persons who ought to have speedy justice, such as merchants, to whom speedy justice is administered in courts of pepoudrous, the time of summons is reduced"); Blackstone, William, Commentaries on the Laws of England (1765-1769) (Book III) (5th ed, 1773), p 33 ("The reason of their original institution seems to have been to do justice expeditiously among the variety of persons that resort from distant places to a fair or market; since it is probable that no inferior court might be able to serve its process, or execute its judgments, on both, or perhaps either, of the parties"); Burdick, Francis, What is the Law Merchant? 2 Colum L Rev 470 (1902), p 474 ("[i]t was summary, swift and sure").
43 Trakman, Leon, The Law Merchant: The Evolution of Commercial Law (1983), p 15.
44 Burdick, Francis, What Is the Law Merchant?, 2 Colum L Rev 470 (1902), pp 470-471.
45 Mitchell, William, An Essay on the Early History of the Law Merchant (1904), p 15.
46 Gross, Charles, The Court of Piepowder, 20(2) Q J Econ 231 (1906), p 244.
47 Baker, J H, The Law Merchant and the Common Law before 1700, 38 Camb L J 295 (1979), pp 301-302.
48 Wolaver, Earl, The Historical Background of Commercial Arbitration, 83 U Pa L Rev 132 (1934-1935), p 133.
49 See generally Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 331-334; Baker, J H, The Law Merchant and the Common Law before 1700, 38 Camb L J 295 (1979), pp 306-308.
50 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 331. [Page129:]
51 Baker, J H The Law Merchant and the Common Law before 1700, 38 Camb L J 295 (1979), p 306. This may sound familiar to those who have charted the evolution of international arbitration in recent years.
52 Baker, J H The Law Merchant and the Common Law before 1700, 38 Camb L J 295 (1979), p 307.
53 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana LJ 329 (1956), p 331, citing Fortescue, John, De Laudibus Legion Anglie (edited and translated by S B Chrimes, 1942), p 52.
54 Sunderland, Edson, The English Struggle for Procedural Reform, 39 Harv L Rev 725 (1925-26), p 729.
55 11 Gentleman’s Magazine 34 (1741) (emphasis in original), cited in Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 332.
56 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 333.
57 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 333.
58 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 333-334; see also Bogart, William A, Summary Judgment: A Comparative and Critical Analysis, 19(4) Osgoode Hall L J 552 (1981), p 555 ("Before Keating’s Act, a defendant who was sued could force a trial, even for such clear cases as the price of goods sold, by simply putting upon the record a plea, no matter how meritless").
59 Summary Procedure on Bills of Exchange Act (1855).
60 Summary Procedure on Bills of Exchange Act (1855).
61 Summary Procedure on Bills of Exchange Act (1855), Section 2.
62 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 329.
63 See Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 334-339.
64 See Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 334-339.
65 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 338 fn 71, citing 135 Parl Deb (3d series) (1854) 1364.
66 Supreme Court of Judicature Act (1873), Rule 7 of the Schedule.
67 Supreme Court of Judicature Act (1875), Order III, Rule 6, and Order XIV ("In all actions where the plaintiff seeks merely to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising upon a contract, express or implied, as, for instance, on a bill of exchange, promissory note, cheque, or other simple contract debt or on a bond or contract under seal for payment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt, or on a guaranty, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note, or on a trust, the writ of summons may be specially indorsed").
68 See Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 339-340.
69 Civil Procedure Rules 1998 (England and Wales), Rule 24.3.
70 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 329, 342.
71 See Clark, Charles and Samenow, Charles, The Summary Judgment, 38 Yale L J 423 (1929), pp 439-440, referring to the adoption of summary judgment procedures in various Commonwealth jurisdictions.
72 Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 329, 343.
73 See generally Millar, Robert W, Three American Ventures in Summary Civil Procedure, 38 Yale L J 193 (1928), p 215; Clark, Charles and Samenow, Charles, The Summary Judgment, 38 Yale L J 423 (1929); Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana Law Journal 329 (1956), pp 329, 343.[Page130:]
74 See Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), p 343.
75 See Bauman, John A, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating’s Act, 31(3) Indiana L J 329 (1956), pp 343-344.
76 Clark, Charles and Samenow, Charles, The Summary Judgment, 38 Yale L J 423 (1929), p 423.
77 Clark, Charles and Samenow, Charles, The Summary Judgment, 38 Yale L J 423 (1929), p 470.
78 Federal Rules of Civil Procedure (US), Rule 56.
79 Bogart, William A, Summary Judgment: A Comparative and Critical Analysis, 19(4) Osgoode Hall L J 552 (1981), p 557.
80 The same is true of the United States courts. See generally Bauman, John A, A Rationale of Summary Judgment, 33(4) Indiana L J 329 (1958), pp 467, 529 ("A review of the evolution and development of the summary judgment procedure reveals that enthusiasm for a speedy settlement of suits has always been restrained by the accepted principle of Anglo-American procedure that proof of issues of fact shall be by witnesses in open court subject to cross-examination. The decisions reached in the cases demonstrate the extraordinary concern of courts to safeguard the right to trial, however much this basis of the decisions may be obscured by constant repetition of vague generalisations, meaningless formulas, and talismanic words. Concern for this right first manifested itself by the restriction of summary judgment to certain limited classes of cases because it was thought that in these cases the need for a trial could be easily determined. With the advent of an unlimited summary judgment procedure, the unjust deprivation of trial is avoided by imposing a burden on the moving party of establishing the absence of any genuine issue of fact for trial.").
81 Wallingford v Mutual Society (1880) 5 App Cas 685.
82 Wallingford v Mutual Society (1880) 5 App Cas 685 at 692.
83 Wallingford v Mutual Society (1880) 5 App Cas 685 at 694.
84 Wallingford v Mutual Society (1880) 5 App Cas 685 at 694.
85 Wallingford v Mutual Society (1880) 5 App Cas 685 at 687.
86 Wallingford v Mutual Society (1880) 5 App Cas 685 at 697 (emphasis added); see also Wallingford v Mutual Society (1880) 5 App Cas 685 at 709 (Lord Watson) ("I think the terms of Order XIV. would require the parties to state a very explicit case of fraud, or rather of facts suggesting fraud, because I cannot think that a mere statement that fraud had been committed, is any compliance with the words of that rule which require the Defendant to state facts entitling him to defend. The rule must require not only a general and vague allegation but some actual fact or circumstance or circumstances which taken together imply, or at least very strongly suggest, that a fraud must have been committed, those facts being assumed to be true.").
87 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1.
88 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260 (para 92) (emphasis added); see also Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 263 (para 106) ("The most important principle of all is that which requires that each case be dealt with justly").
89 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260 (para 93).
90 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260 (para 95).
91 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260-261 (para 95).
92 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 261 (para 95) (emphasis added).
93 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 261 (para 96).
94 Wenlock v Moloney [1965] 1 WLR 1238.
95 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260-261 (para 95).
96 Wallingford v Mutual Society (1880) 5 App Cas 685 at 700 (emphasis added).
97 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 294 (para 192).
98 Kent v Griffiths (No 3) [2000] 2 WLR 1158.
99 Kent v Griffiths (No 3) [2000] 2 WLR 1158, paras 4-6.[Page131:]
100 Kent v Griffiths (No 3) [2000] 2 WLR 1158, paras 2, 9.
101 Kent v Griffiths (No 3) [2000] 2 WLR 1158, para 37.
102 Kent v Griffiths (No 3) [2000] 2 WLR 1158, para 37.
103 Kent v Griffiths (No 3) [2000] 2 WLR 1158, para 38 (emphasis added).
104 Travis Coal Restructured Holdings LLC v Essar Global Fund Limited [2014] EWHC 2510
105 Travis Coal Restructured Holdings LLC v Essar Global Fund Limited [2014] EWHC 2510, para 44.
106 Chong, Philip and Primrose, Blake, Summary Judgment in International Arbitrations Seated in England, 33(1) Arb Int’l 63 (2017), pp 78-79. The authors recommended adopting a "two-part procedure", to ensure that summary awards are enforceable: first, determining whether "[o]n the basis of the written submissions and evidence alone" the claim "may have" no real prospect of success, and; second, if so, holding a "short oral hearing" for the parties "to deliver detailed oral submissions and to present any evidence relevant to the application".
107 Raviv, Adam, No More Excuses: Toward a Workable System of Dispositive Motions in International Arbitration, 28(3) Arb Int’l 487 (2012), p 501; see also cases cited in fn 62; Amirfar, Catherine and Salas, Claudio, United States: How Summary Adjudication Can Promote Fairness and Efficiency in International Arbitration, IBA Arbitration Newsletter, September 2010, p 78 ("when it comes to enforcement, arbitrators and parties should be emboldened in their use of summary adjudication, because there is no empirical evidence that its use negatively affects enforcement. A search of both federal and state cases in the United States, for instance, reveals few instances of a court faced with a challenge to enforcement of an arbitral award because the tribunal had summarily disposed of claims"); Sussman, Edna and Ebere, Solomon, Reflections on the use of dispositive motions in arbitration, 4(1) NY Dis Res Law 28 (2011), p 28 ("courts have found that arbitrators have the authority to grant such motions even when the arbitral rules governing the arbitration, such as the American Arbitration Association’s … Commercial Arbitration Rules, do not expressly grant such authority); Carter, James, "Dispositive Motions in International Arbitration and the Role of US Courts", in International Arbitration: Contemporary Issues and Innovations, p 39 (John N Moore ed, 2013); Collins, Michael, "Summary Disposition in International Arbitration", in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 532 (A J van den Berg ed, 2009), p 533 ("American courts have, for the most part, focussed on the combination of the absence of a prohibition on summary disposition and the wide discretion given to an arbitrator as to how to conduct the proceedings to find that arbitrators under these various systems do have the power to grant motions for summary disposition").
108 Sherrock Brothers, Inc v DaimlerChrysler Motors Co, LLC, 260 Fed Appx 497, (3rd Cir, 7 January 2008) at 502; see also Global Int’l Reinsurance Co Ltd v TIG Insurance Co, 640 F Supp 2d 519 (SDNY, 2009), at 523 (rejecting an application to vacate an award because the arbitrator had resolved factual disputes without discovery or an evidentiary hearing, on the basis that "[a]rbitrators… have great latitude to determine the procedures governing their proceedings and to restrict or control evidentiary proceedings" and "need not compromise the speed and efficiency goals of arbitration by allowing the parties to present every piece of relevant evidence").
109 Raviv, Adam, No More Excuses: Toward a Workable System of Dispositive Motions in International Arbitration, 28(3) Arb Int’l 487 (2012), p 501.
110 See Gill, Judith, "Applications for the Early Disposition of Claims in Arbitration Proceedings," in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 513 (A J van den Berg ed, 2009), p 523; King, Brian and Commission, Jeffrey, Summary Judgment in International Arbitration: The "Nay" Case, ABA International Law Spring 2010 Meeting 1 (2010); see also Raviv, Adam, No More Excuses: Toward a Workable System of Dispositive Motions in International Arbitration, 28(3) Arb Int’l 487 (2012) (comprehensively rebutting the most common objections to adopting summary judgment procedures in international arbitration).
111 See Blackaby and Partasides, Redfern and Hunter on International Arbitration (6th ed, 2015), para 6.40; Gill, Judith, "Applications for the Early Disposition of Claims in Arbitration Proceedings", in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 513 (A J van den Berg ed, 2009), p 523 ("The tribunal may have concerns about the likelihood of a challenge to any award in national courts or its enforcement (based on arguments of a failure of due process/natural justice)"; Born, Gary and Beale, Kenneth, Party Autonomy and Default Rules: Reframing the Debate over Summary Disposition in International Arbitration, ICC Ct Bull 19 (2010), p 22 ("arbitrators are often concerned that dismissing a party’s claims summarily during the initial stages of arbitral proceedings raises due process issues that could undermine the resulting award"); King, Brian and Commission, Jeffrey, Summary Judgment in International Arbitration: The "Nay" Case, ABA International Law Spring 2010 Meeting 1 (2010), p 4 ("the introduction of a summary disposition mechanism raises concerns about challenges to the resulting award or its enforcement in the courts. Such a challenge could be predicated on the right of parties to have a full opportunity to present their cases, and/or [Page132:] the presumptive right to an oral evidentiary hearing"); Beerbower, John, International Arbitration: Can We Realise the Potential?, 27(1) Arb Int’l 75 (2011), p 84 ("The possibility of summary dispositions has generated some controversy. There are two objections that arise. First, there is clear resistance from experienced arbitrators who believe that a full opportunity to be heard is a fundamental premise of the arbitration concept. The second and related objection is that such short-cuts may give rise to judicial challenges to the enforceability of awards under the standards of the New York Convention, jeopardising one of the real advantages of arbitration over litigation in the international context. Because of the desire to appear fair and give full due process, arbitration panels are generally reluctant to limit the length and, even, the number of submissions without a contemporaneous consensus of the parties"); Collins, Michael, "Summary Disposition in International Arbitration", in 50 Years of the New York Convention, 14 ICCA International Arbitration Conference: ICCA Congress Series 532 (A J van den Berg ed, 2009), p 532 ("It may therefore appear somewhat odd that the familiar litigation procedures of seeking to strike out a claim at an early stage… should provoke such hesitancy among the arbitration community. The reasons for this are well known and most of them revolve around some version of due process… Arbitrators, like courts, remain slow to take this step because of a natural unwillingness to resolve a case without being seen to give both sides a full opportunity to argue their point"); Born, Gary, International Commercial Arbitration (2nd ed, 2014), p 2245 ("Nonetheless, some tribunals are unwilling to risk denying a party the opportunity to present its evidence, which will arguably occur in cases of summary dispositions").
112 Kent v Griffiths (No.3) [2000] 2 WLR 1158.
113 Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260 (para 92).