ICC Dossiers

I. PROLOGUE

Issues of time and costs have always topped the concerns of international arbitration users. It is indeed paradoxical in two ways. First, arbitration, at its inception, was presented as an expedited, cost effective, flexible and constructive out-of-court dispute settlement mechanism, yet, in time, arbitration became costly, procedurally laborious and temporally protracted. Secondly, once institutions intervene to address users’ concerns by regulating expedited proceedings to promote efficiency and reduce time and costs, users flag the self-proclaimed autonomous nature of the proceedings and invoke the parties’ unfettered right to vary this packaged regulation. This contravenes the desired objective of utmost efficiency, on the premise that law, justice and due process can only be served if autonomy remains absolutely unreserved.

In essence, the forces of regulation and autonomy continue causing friction that brings about myriad challenges and prospects for procedural efficiency.

Amid this friction and rising criticism of the arbitration system, it was high time for institutions to intervene to balance the odds and meet users’ expectations, so that arbitration can continue to maintain its prominence and appeal as the leading dispute resolution scheme for international business and cross-border disputes.

It is in this context that the International Chamber of Commerce ("ICC") thoughtfully revised and amended its Rules of Arbitration of 2012 and issued its updated Rules of Arbitration ("ICC Rules") and published its new Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ("ICC Note") in 2017, which came into force on 1 March 2017.¹

The revised ICC Rules and the new ICC Note are manifestations of ICC’s commended efforts and sincere desire to increase efficiency, promote transparency, reduce delays and lower costs in arbitral proceedings. The new winds of change instigated by ICC resulted in a revised, expedited, less [Page134:] convoluted and more cost-effective procedure under Article 30 of the ICC Rules and its Appendix VI (the "Expedited Procedure Provisions" or the "EPP").²

However, it should be noted that accelerated or fast-track arbitral proceedings are not unknown to the ICC Rules, since Article 38.5 of the ICC Rules encourages the parties to conduct the arbitration in an expeditious manner for mutually agreed fast-track arbitrations.³

In full transparency, it is also noteworthy that the EPP are not an exclusive innovation by ICC, since other leading institutions have acknowledged users’ concerns and attempted to address issues of time and expenses through similar schemes. For example, the Geneva Chamber of Commerce and Industry first introduced its rules for expedited procedures in its Arbitration Rules of 1992.⁴

Other leading arbitral institutions introduced specific provisions to accelerate arbitral proceedings for small claims, either as separate sets of rules or as special provisions enshrined under the existing arbitration rules, such as the Singapore International Arbitration Centre,⁵ the Stockholm Chamber of Commerce,⁶ the Japan Commercial Arbitration Association,⁷ the Swiss Chambers of Commerce,⁸ the Hong Kong International Arbitration Centre,⁹ and the American Arbitration Association’s International Centre for Dispute Resolution.¹⁰

The concept of a ‘small claim’ varies drastically depending on the institution and the jurisdiction, ranging from US$75,000¹¹ in the case of the American Arbitration Association to approximately US$4.2 million¹² in the case of Singapore International Arbitration Centre.¹³ The new ICC EPP applies to cases involving up to US$2 million in dispute,¹⁴ which represents around one third of the claims filed with ICC each year.¹⁵ Pursuant to the revised ICC Rules and its Note, the Expedited Procedure Provisions shall apply if:¹⁶

The Expedited Procedure Provisions shall also apply, irrespective of the date of conclusion of the arbitration agreement or the amount in dispute, if the parties have agreed to opt in.¹⁷

Pursuant to Article 30.3 of the ICC Arbitration Rules, the EPP shall not apply if:

That said, the EPP will apply to all cases with an amount in dispute of up to US$2 million commenced on or after 1 March 2017, except where: (i) the arbitration agreement was concluded before the said date; (ii) the parties [Page135:] expressly opted out of the EPP; and/or (iii) the ICC Court, at the request of a party before the constitution of the tribunal or on its own motion, determines that the EPP is not appropriate in the circumstances. Moreover, the EPP can apply to disputes, the value of which is higher, if the parties expressly opt in by agreeing to the application of the EPP.

The EPP (and similar institutional initiatives or rules) use a variety of tools to improve efficiency and accelerate arbitral proceedings. This, inter alia, includes: possible appointment of sole arbitrators instead of three-arbitrator panels;¹⁹ considering limitations on written submissions and document disclosure requests;²⁰ reduction in the number of hearing days or the possibility of dispensing with in-person hearings altogether.²¹ This will consequently result in cost savings and time reduction.²²

However, the regulation of expedited proceedings for more efficiency sometimes leads to restraints on party autonomy. It is in this specific respect that the present article attempts to identify the challenges and risks that the regulation of expedited proceedings brings about. This involves addressing and analysing potential issues that may arise out of the enforcement of awards rendered in expedited arbitration proceedings, with due and exclusive emphasis on the ICC Expedited Procedure Provisions.

On such account, the author shall first provide an overview of the enforceability of arbitral awards and then scrutinise the friction between regulating expedited proceedings and respecting party autonomy. This involves exploring a number of pertinent issues, namely: the mandatory appointment of a sole arbitrator, due process and the limitations on submissions, document disclosure requests and documents only proceedings, and the risks associated with temporal restrictions on rendering awards in expedited proceedings.

The author shall then provide some concluding remarks.

II. ENFORCEABILITY OF ARBITRAL AWARDS

Arbitration as the most prominent method of out-of-court dispute resolution is a form of private justice that is founded on the principle of party autonomy. As a consensual process, international arbitration has established itself as the global business community’s best solution to transnational business disputes that require a high degree of certainty and predictability.²³ The autonomous nature of arbitration distinguishes it from normal court litigation, and enables the parties to agree on the specific rules that are applicable to the merits of the dispute and the procedural framework of the arbitral process.

Traditionalists and autonomists perceive the arbitration agreement as the prime instrument that bestows upon the arbitrators their decision-making powers. While it is undeniable that arbitration derives its very existence from freedom of choice and autonomy, it is equally incontrovertible that: (i) tribunals do not exist or exercise their powers in a vacuum and (ii) tribunals do have reasonable inherent, implied and/or discretionary powers to safeguard the integrity and the efficient conduct of the proceedings.²⁴

Accordingly, the principle of party autonomy, though respected, is not absolute and awards rendered by tribunals require the assistance of a State’s machinery for enforcement and recognition in the absence of [Page136:] voluntary compliance.²⁵ Accordingly, a reasonable degree of prudent regulation is needed to achieve efficiency and justice, without sacrificing due process and productive autonomy.

It is the very purpose of arbitration to arrive at a binding decision on the dispute that is, to the extent possible, enforceable. Once this decision has been made in the form of an award, it is an intrinsic element of every arbitration agreement that the parties will carry it out.²⁶ There are broadly three possibilities. The first, and most common outcome, is that the losing party voluntarily complies with the terms of the award. The second is that the parties enter into a settlement based on the award. The third is that the unsuccessful party refuses, or simply fails, to comply with the award. In this last category, it will be necessary for the successful party to seek to enforce the award, without which the award would be mere ink on paper and will represent little more than a pyrrhic victory,²⁷ and the losing party will attempt to resist recognition or enforcement of the award.²⁸

If the proceedings are expedited or fast track and certain restraints on party autonomy applied as per the applicable institutional or procedural rules, courts, in some jurisdictions, may be inclined to take a closer second look to ascertain that the fundamental procedural rights of the parties were not prejudiced or violated. In doing so, courts will primarily resort to the applicable regime governing enforcement and/or recognition, hence the need to briefly shed light, herein below, on the pertinent provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the "NYC"). Being the global leading instrument on recognition and enforcement, with almost 75% of the countries are among its signatories, States generally align their national laws with the principles of the NYC.

At the outset, the NYC and most arbitration-friendly national laws provide a robust, "pro-enforcement" regime for recognising and enforcing arbitral awards,²⁹ and its principles apply irrespective of the arbitration rules under which the proceedings were conducted.³⁰

On the specific issue of enforceability, Article 5 of the NYC is of paramount importance.³¹ According to said provision, the arbitral award may be refused enforcement or denied recognition, if it is proven that: (i) the parties suffered from some incapacity to conclude an arbitration agreement; (ii) the arbitration agreement is invalid, expired or unenforceable; (iii) the tribunal has exceeded its mandate and/or ruled ultra petita; (iv) the composition of tribunal or the proceedings were not in accordance with arbitration agreement or relevant law; (v) the award was not final or was suspended/set-aside at the seat of arbitration; and (vi) the dispute was inarbitrable; and/or (vii) the award was contrary to public policy.

Ideally, the conditions and provisions of the NYC would be interpreted in the same way by courts of all member States, but reality defies this idealistic view, which makes it all the more complicated for awards rendered in expedited proceedings. Courts in different jurisdictions will need to establish their edifice of precedents or decisions to test and assess the enforceability of awards rendered in expedited awards. However, it is submitted that awards rendered in expedited proceedings ought not be treated differently or with greater caution than other awards. This is so for three main reasons: (i) the NYC itself and most, if not all, national laws do not distinguish awards [Page137:] rendered in expedited proceedings by subjecting them to greater scrutiny; (ii) awards rendered in expedited proceedings pertain to proceedings that were founded on a valid arbitration agreement mandating, directly or indirectly, the application of expedited procedure; and (iii) arbitral tribunals are expected to uphold and safeguard the fundamental principles of due process in any proceedings, whether expedited or not, since the expedited nature of the proceedings, objectively assessed, is not opposed to requirements of due process.

In light of the above, the remainder of this article will be dedicated to shedding light on some of the potential issues that may be flagged as challenges to enforcement of awards rendered in expedited proceedings. For the avoidance of doubt, due of consideration of the issues below does not imply that the enforceability of awards in expedited proceedings will be rejected. This is simply an attempt to identify issues that may likely give rise to challenges and concerns regarding enforceability, irrespective of whether those concerns or challenges are merited or not, since States and jurisdictions vary when assessing issues of enforceability.

III. EXPEDITED ARBITRAL PROCEEDINGS AND RESTRAINT OF PARTY AUTONOMY

As mentioned above, there seems to be an inherent (yet overrated) tension between absolute party autonomy and regulated expedited proceedings. On one hand, party autonomy is the guiding principle in determining the procedure to be followed in an international arbitration and it is a principle that has been endorsed not only in national laws, but also by international institutions worldwide, as well as by international instruments such as the New York Convention and the Model Law. By stating which procedural rules are applicable to a dispute within an arbitration clause in a contract, parties express their mutual will and intent as to how the arbitration will be conducted. The principle of party autonomy requires that this common, expressed intent not be disregarded except in exceptional cases.³² Party autonomy entails respect for the procedural provisions and principles expressly agreed by the parties. The NYC³³ and the UNCITRAL Model Law³⁴ expressly require respecting the parties’ choice of procedural provisions. In the case of the NYC, where this choice is not respected, an arbitral award can be denied enforcement in the courts.³⁵

On the other hand, it is the very same party autonomy and users’ desires that prompted institutions to regulate expedited proceedings and minimally restrain, in part, party autonomy. In effect, by agreeing to the application of certain institutional rules, such as the EPP, the parties have effectively chosen, by their own will, a self-contained system, whose principles and provisions may not be varied, unless so permitted by the rules themselves. This is the guarantee to safeguarding the efficiency and proper functioning of the system when the parties’ competing interests are at play in a post-dispute situation.

In light of this tension, it may be argued that the parties’ express choice of certain procedural principles ought to prevail and take precedence over the generally chosen procedural rules. The concern and fear arises from the potential ramifications that the marginaling the parties’ express choice of arbitration rules could be characterised as a violation of the general [Page138:] principle of party autonomy, which threatens the enforceability of an award.³⁶ This is all the more problematic in light of the tribunal’s primary duty to determine the parties’ common intent and give effect to that very same intent.³⁷

That is why the ICC Rules have expressly provided, in Article 19, that:

This provision is of paramount importance as it provides, in full transparency, that the rules take precedence in regulating the proceedings and the parties’ agreement is optional regarding issues on which the rules are silent. Thus, the parties’ agreement to adopt institutional rules such as that of ICC implies the choice of a self-contained procedural ecumene that repels party instigated variations to the extent that they are inconsistent with that ecumene.

Nevertheless, courts in some jurisdictions have ruled that bespoke and specific variations to the agreed procedural rules ought to prevail over the generally agreed rules of procedure. To that effect, the Cairo Court of Appeal has ruled that:

This was reiterated and affirmed in another decision by the Court, which held that:

In the above decisions, the Court of Appeal concluded that the Parties’ agreement to have their arbitration governed by certain institutional rules, incorporates such rules into their agreement, but if the parties have specifically varied or changed such rules, their variations ought to be respected.

These decisions, which are not anomalous in the MENA region and indeed beyond, are questionable, especially when the agreed institutional rules themselves (such as ICC) provide that they may not be contravened or varied by the parties, on several counts.

First, it is unequivocal that arbitral institutions offer their rules to users to adopt or refer to same in their agreements and that the parties’ adoption of [Page139:] same constitutes an acceptance of same. Thus, cases are filed and proceedings are commenced on the basis of such offer and acceptance. Accordingly, the parties or users, at the time of adopting the procedural rules or filing their cases are not at liberty to unilaterally vary such rules by accepting on terms not provided for in the offer. At best, this amounts to a counter-offer that can only be given effect if endorsed by the arbitral institution. Absent such endorsement, the parties and the institution remain bound by the offered (unvaried) rules and the parties are at liberty to proceed with their cases on such basis or to terminate same in light of the institution’s rejection to endorse whatever variations that are inconsistent with their published standing offer rules.

Second, it may also be argued that by voluntarily selecting certain institutional rules to govern the arbitration, the parties have effectively consented to being bound by those rules, including any provision that restrains party autonomy and/or gives primacy to the chosen rules over any attempt to vary said rules. This, in effect, means that the parties, by their very own choice, elevated certain procedural rules to the level of contractual mandatory rules that may not be varied by the parties’ own choice. Thus, the parties are bound by the procedural rules because they elected to be bound and voluntarily relinquished the right to vary the agreed rules.

Third, to suggest that the parties can unilaterally, by their own agreement not endorsed by the pertinent institution, vary the agreed institutional rules means that institutional rules would not uniformly apply and could be distorted to the extent of losing their defining characteristics, which is obviously inconsistent with good governance, the role of arbitral institutions and the efficient administration of arbitral proceedings.

Fourth, this inability to vary the institutional rules in a manner that is inconsistent with its defining characteristics or core rules is what distinguishes institutional from ad hoc arbitration. In ad hoc arbitration, the parties are at liberty to cherry pick and develop their bespoke set of rules because no third party institution is factored into the procedural equation. However, in institutional arbitration, the contractual bond between the parties and the institution militates against unilateral variations by either party insofar as they contravene the core institutional rules, disturb the agreed procedural ecumene and distort the defining characteristics of the agreed institutional rules.

While not many national courts have had the opportunity to analyse this matter to ease the tension between party autonomy and the self-sustaining institutional rules, it remains to be seen how the expedited rules will be received and treated in national courts.

By and large, to respect and uphold the sanctity of party autonomy does mean that regulation is undesired, unnecessary and/or counter-productive. Thus, it is not suggested to accord absolute priority to the parties’ wishes; their freedom should be restrained by both legislative and contractual mandatory provisions designed to safeguard the proper conduct of the proceedings and their integrity. This would not be contrary to the collective interests of the parties.⁴⁰

Having considered the friction between regulation and party autonomy, the author shall now turn to address certain specific situations that can and will [Page140:] indeed arise in the context of expedited proceedings to ascertain whether such situations raise serious concerns that can threaten the enforceability of awards in expedited proceedings or not.

These situations pertain to the following: (a) the Mandatory Appointment of a Sole Arbitrator and its Overriding Effect over any Agreement on the Constitution of the Arbitral Tribunal; (b) Limitations on Submissions and Document Disclosure Requests and Deciding Solely on the basis of Documents and the Requirements of Due Process; and (c) Temporal Restrictions and Ephemeral Time Limits for Rendering Awards: Enforcement Issues and Concerns.

A. The Mandatory Appointment of a Sole Arbitrator and its Overriding Effect

It is uneventful that the default rule in expedited proceedings ought to be the appointment of a sole arbitrator. This would be more cost effective and would lead to expeditious decision making. However, not every case is best suited for a sole arbitrator, hence the provision in the EPP providing for the ICC Court’s discretion for example. As per the EPP, the Court may appoint three arbitrators if appropriate in the circumstances, and, in all cases, the Court will invite the parties to comment in writing before taking any decision and shall make every effort to make sure that the award is enforceable at law.

However, the EPP goes further to state that the ICC Court retains discretion to appoint a sole arbitrator, regardless of any agreement by the parties to the contrary, if the circumstances so warrant. It is this issue that may create potential difficulties and risks in certain jurisdictions.

As stated above, courts in more than a few jurisdictions would give precedence to the parties’ express agreement on specific procedural issues over their general reference to the applicable institutional rules. This could be a cause for concern in cases where the parties have adopted the EPP or in cases where the amount in dispute is less than US$2 million and yet the parties have expressly agreed to a three-member arbitral tribunal, whether in their arbitration agreement or in any subsequent document. This would be problematic because it appears that the default rule under the EPP is that "the ICC Court will normally appoint a sole arbitrator".⁴¹

It is in this specific scenario that we might encounter an inconsistency between the default rule under the EPP and the parties’ express agreement. Article 2 of the EPP, entitled "Constitution of the Arbitral Tribunal" granted the court broad discretion in constituting the arbitral tribunal. It expressly states:

Pursuant to Article 2.1 of the EPP, a sole arbitrator may be appointed by the ICC Court, even if the arbitration agreement refers generally to the ICC [Page141:] Rules and specifically provides for a three-member tribunal, in order to ensure that the arbitration is conducted in an expeditious and cost-effective manner.⁴²

In light of the above provision, the essential question that arises is: Should the ICC Court give precedence to the specific and express agreement on a three-member arbitral tribunal to avert any risks associated with enforcement, or should the Court ignore such express and specific agreement? In other words, does Article 2 of the EPP override the parties’ express agreement regarding the number of arbitrators or not?

The ICC Note explains that "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."⁴³ The ICC Note further explains that "the Court may nevertheless appoint three arbitrators if appropriate in the circumstances."⁴⁴

More generally, Article 30.1 of the ICC Rules reads, in pertinent part, that:

In essence, ICC has prudently ring-fenced the enforceability of its Rules (and ultimately the awards rendered under its EPP) in two ways:

a. including an express provision (i.e. Article 30.1) stating that by submitting and agreeing to the ICC Rules, the parties understand and agree that the Rules will prevail and override any contrary terms in the arbitration agreement. While this is clear enough, it exclusively refers to the arbitration agreement, and so it would have been all encompassing had the reference been made to "any contrary terms agreed by the parties" without restricting the reference to the arbitration agreement.

b. Granting the ICC Court the discretion to consider and assess all circumstances prior to ignoring or upholding the parties’ express agreement. The ICC Court is also expected and indeed bound to factor in its assessment the enforceability of the award to be rendered. This means that the ICC Court should be mindful of the specificities and anomalies of each jurisdiction prior to rendering its decision. The more likely that a jurisdiction would decline to enforce awards rendered in expedited proceedings insofar as the parties’ express choice for a three-member arbitral tribunal was ignored, the less likely the ICC Court would be minded to disregard the parties’ express choice.

As stated above, some jurisdictions would give precedence to the parties’ express choices on account of the principle ‘the specific prevails over the general’ (generalia specialibus non derogant). However, other jurisdictions and courts would take a closer look into the applicable rules and the dynamics of their operation to offer a purposive and commercially sensible decision consistent with the specificities of the applicable expedited arbitration rules. On this specific issue and the risks associates with obviating the parties’ express and specific choices, the Singapore High [Page142:] Court held that overriding the parties’ agreement to arbitrate before three arbitrators was consistent with party autonomy given that the parties had previously agreed on the SIAC Rules.⁴⁵

In AQZ v ARA, the Respondent sought the relief to set aside the arbitration award on the basis that, inter alia, the composition of a sole arbitrator panel was not in accordance with the parties’ agreement since they had expressly agreed to arbitration before three arbitrators, based on Article 34(2)(a)(iv) of the UNCITRAL Model Law.⁴⁶ The Court held that the SIAC Rules referred to by the parties contained expedited procedure provisions, and so it was consistent with party autonomy for the expedited procedure involving a sole arbitrator to override the parties’ agreement on three arbitrators.⁴⁷

The Singaporean Court prudently adopted a purposive and commercially sensible construction of the arbitration agreement which required recognition of the President of the SIAC Court’s discretion under the chosen rules to appoint a sole arbitrator. The Court stated that:

The Court further reasoned that:

That said, the Singapore High Court innovatively and prudently ruled that the incorporated reference to expedited procedures override the parties’ agreement if the discretion has been properly exercised.⁵¹ This ruling is highly relevant to the interpretation of Article 2.1 of the EPP due to its similarity with the SIAC Expedited Procedures Rules.⁵²

Conversely, the Shanghai Municipal No. 1 Intermediate People’s Court (the "Shanghai Court"), in a very recent decision rendered on 11 August 2017, dismissed a Singaporean company’s application to enforce an award of the SIAC against a Chinese Shanghai company on the ground that the SIAC’s sole arbitrator expedited procedure disregarded the parties’ express choice of three arbitrators as set out in the arbitration clause.⁵³ The contract between the parties incorporated by reference a SIAC arbitration clause which provided that the parties had expressly agreed to have three arbitrators. The sole arbitrator conducted the arbitration and eventually rendered an award. The winning party subsequently took out an application for leave to enforce the award in China before the Shanghai Court. The issue before the court was whether the composition of the arbitral tribunal was in accordance with the agreement of the parties.

In its judgment, the Shanghai Court held that:

The Chinese Court’s refusal of recognition and enforcement was premised on Article V(1)(d) of the NYC – the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties,⁵⁶ but quite prudently the Chinese Court reasoned that the 2013 SIAC Rules neither excluded the adoption of an alternative composition of the tribunal in proceedings conducted under the expedited procedure, nor did it specify that the President of SIAC can have the right to invoke Article 5.2(b) regarding the appointment of a sole arbitrator when the parties have not agreed on the composition of the tribunal.⁵⁷

Accordingly, while the court accepted the SIAC president has a discretion over whether to order and expedited procedure, it should not be interpreted that the President of SIAC having absolute discretion on the composition of the tribunal; on the contrary, when exercising its discretion, the President must give full consideration to the parties’ agreement with respect to the composition of the tribunal in order to preserve party autonomy.⁵⁸

In this case, the Shanghai Court considered the appointment of a sole arbitrator in accordance with Article 5.2 of the SIAC Rules was a breach of the arbitration agreement of the parties. Accordingly, Article V(1)(d) of the NYC was triggered and the award was denied recognition and enforcement.⁵⁹

While this recent Shanghai Court judgment may come across as challenging for expedited proceedings, it must be reviewed with care and appreciation, as it appears to have relied on the absence of an express provision in the SIAC 2013 Rules giving primacy and precedence to said Rules over the parties’ agreement. This is a fundamental and key issue, as the SIAC’s 2016 Rules, which replaced the 2013 Rules,⁶⁰ as well as the EPP of ICC now include express provisions giving precedence to the rules over the parties’ agreement to the contrary.⁶¹ However, it should not be overlooked that the Supreme People’s Court in China has indicated a strong intent to safeguard party autonomy in such cases.⁶²

The reference to Article V(1)(d) of the NYC in the ruling of the Shanghai Court also raises a serious concern that one would expect courts in other States to flag, that is:

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While it can be argued that the agreement of the parties is observed since the institution would, in any case, apply its rules chosen by the parties and so Article V(1)(d) is not contravened. However, others would take a closer look into the parties’ agreement by construing it narrowly to refer to the express and specific agreement on the constitution of the arbitral tribunal and not the institutional rules at large.

Owing to such enforcement risks associated with the expedited proceedings and constitution of the arbitral tribunal thereunder, certain other arbitral institutions opted for an approach aligned with party autonomy. The Hong Kong International Arbitration Centre⁶⁴ and the Swiss Chambers of Commerce⁶⁵ provide that the cases under the expedited procedural rules shall be referred to a sole arbitrator unless the arbitration agreement provides for more than one arbitrator. The Japan Commercial Arbitration Association (the "JCAA") also upholds full autonomy of the parties, but, unlike the above institutions, the expedited procedural rules would not apply if the parties agree on more than one arbitrator pursuant to Rule 75 of the JCAA Rules:

Accordingly, it is advisable that parties who believe that a three-member arbitral tribunal is a must do opt out expressly from any expedited procedural rules that provide for a sole arbitrator in expedited proceedings.

B. Limitations on Submissions and Document Disclosure Requests and Deciding Solely on the basis of Documents and the Requirements of Due Process

As mentioned herein above, the NYC entitles courts to deny recognition and enforcement of awards where the party against whom the award was rendered was unable to present its case or the arbitration proceedings were conducted in contravention of the parties’ agreement.

In practice, it is not uncommon for one or more parties to invoke due process whenever: (1) submissions of pleadings and evidence are being made and time limits are at play, (2) requests for production of documents are made, and/or (3) in-person hearings are requested and are being considered.

This practice is supported by the fact that most national laws and arbitration rules fall into one of three categories: (1) rules/laws that refer to affording the parties’ ‘reasonable/adequate/fair opportunity’ to present their claims, defences and arguments;⁶⁷ (2) rules/laws that refer to affording the parties’ ‘full opportunity’ to present their claims, defences and arguments;⁶⁸ and (3) rules/laws that refer to affording the parties’ ‘opportunity’ to present their claims, defences and arguments.⁶⁹

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These variances between ‘fair/reasonable/adequate,’ ‘full’ and sheer ‘opportunity’ can become recipes for disputes over issues of due process and so courts will have to consider this at the time of setting aside and/or enforcement under the pretext of procedural prejudice or public policy.

Taking into consideration the absence of well-defined criteria to determine encroachments and violations of due process, and noting the necessity for expediency and efficiency in expedited proceedings, almost all expedited procedural rules bestow upon tribunals the power take the needed measures to save time and costs. On such account, the EPP granted arbitral tribunal’s the power not to admit new claims and limit submissions, document production requests and in-person hearings.

Article 3.2 of the EPP reads:

Article 3.4 of the EPP further stipulates:

Article 3.5 of the EPP states:

In compliance with Article 22.4 of the ICC Rules, the arbitral tribunal must ensure that each party has had a reasonable opportunity to present its case, however, a party’s entitlement to a reasonable opportunity to present its case does not necessarily oblige the arbitral tribunal to hold a hearing or admit the procedural requests of such party.

While these powers bestowed upon the arbitral tribunal are necessary for the expedited nature of the proceedings, and so do not pose enforceability risks in and of themselves, the risks associated with enforcement materialise when the parties include express references to document production, ability to file new claims at any time prior to the closure of the proceedings and/or in-person hearings in their arbitration agreement or any other agreement.

If such situation arises and so an apparent inconsistency arises between the EPP express provisions and the expressly agreed procedure(s), then the same analysis provided under (a) above, when addressing the number of arbitrators, will equally apply in this respect and so the author refers to such analysis and incorporates same here for aversion of redundancy.

In light of the above, it appears that procedural economy and the strict powers bestowed upon the arbitral tribunal in expedited proceedings may trigger arguments for breach of due process, and courts will have to [Page146:] consider such arguments and allegations of breach of due process either at the stage of setting aside the award or at the stage of enforcement and recognition. By way of illustration, some writers appear to suggest that the imposition of page limits by the arbitral tribunal may be viewed as arbitrary and unfair.⁷⁰ However, it is submitted that imposing page limits is intended to: (i) ensure that the parties focus on the pertinent and relevant issues; and (ii) maintain the efficiency of the proceedings when no lengthy submissions are merited or required.

Furthermore, as stated herein above, Article V of the NYC could yet again be invoked if the procedure(s) denied by the arbitral tribunal in the expedited proceedings represent a clear and objective violation of due process.

However, challenges due to the procedural limitations enshrined in expedited proceedings rules vary from one jurisdiction to another depending on the prevailing procedural culture and applicable norms. By way of illustration, during arbitral proceedings conducted under the SCC Rules on Expedited Arbitrations, the sole arbitrator rejected a party’s request to hold a hearing to hear the witnesses’ testimony. The denial of a hearing, according to the denied party, prevented it from adducing evidence in support of its claims as that party only had oral evidence available and so it sought the setting aside of the arbitration award.

The Svea Court of Appeal explained that Article 27.1 of the SCC Rules for Expedited Arbitrations provide that a hearing shall be held if requested by party and if deemed necessary by the arbitrator. In that case, the arbitrator considered, upon reviewing the submissions of the parties and in particular the witness statements, that it was not necessary to hold a hearing to summon the witnesses to resolve the dispute.⁷¹ The Court considered that when deciding not to hold a hearing, the arbitrator applied the rules and the applicable law the parties agreed upon; the Court further found that the decision not to hold a hearing did not contradict the applicable SCC arbitration rules and so the award was maintained and upheld.

Conversely, pursuant to the Austrian Supreme Court an arbitral award was set aside as it breached a party’s right to be heard, when the party argued that the way the arbitration proceedings were conducted was contrary to its right to be heard, the principle of fair trial and public policy, because its request for an oral hearing had been rejected by the arbitrator.⁷²

In order to avoid or mitigate the risk of annulment of the award and/or denial of recognition and enforcement, arbitrators will no doubt have to cautiously apply the applicable expedited proceedings taking into consideration the complexity of the case, the circumstances and specificities of the transaction.⁷³

C. Temporal Restrictions and Ephemeral Time Limits for Rendering Awards: Enforcement Issues and Concerns

At the outset, it is uneventful that expedited proceedings provide for very short time limits to conclude the proceedings, which entails temporal limitations on rendering the final award. The very essence of expedited proceedings is to accelerate the decision-making process and provide for timely and efficient resolution of disputes.

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A review of the diverse rules on expedited procedures adopted by leading arbitral institutions reveals that awards are typically expected to be rendered within a window of 3 – 6 months period depending on the applicable rules. For example, the HKIAC Arbitration Rules (2013) expressly state in Article 41.2(f) that:

Similarly, the CIETAC Arbitration Rules (2015) expressly provide in Article 62 that:

Article 62 Time Period for Rendering Award

The SIAC Arbitration Rules (2016) expressly state in Article 5.2 that:

The SCC Expedited Arbitrations Rules (2017) expressly provide in Article 43 that:

And, finally, the ICC EPP (2017) expressly provide in Article 4.1 that:

In light of the above, the following comments can be made:

a. all institutions providing for expedited proceedings are effectively offering summary proceedings on the merits of the dispute which may trigger some [Page148:] concerns as to the legitimacy and due process requirements of the arbitral proceedings. However, for the avoidance of doubt, courts in leading jurisdictions have validly confirmed that summary arbitration proceedings cannot, in and of themselves, be seen as involving denial of justice.⁷⁴

b. The time limits for rendering the final award vary between three to six months and may commence as of the date of full constitution of the arbitral tribunal (as is the case of the CIETAC and the SIAC), the date of referral of the case to the arbitrator or transmission of the case file to the arbitral tribunal (as is the case of the SCC and the HKIAC), or the date of the case management conference (as is the case of the ICC EPP).

c. Given the ephemeral nature of this time limit and the risk of unenforceability of awards if the ratione temporis jurisdiction of the arbitral tribunal is lost, all arbitration institutions provide for a caveat where time limits may be exceptionally extended if the circumstances so warrant and a reasoned application is made, but all will be assessed in due regard to the expedited nature of the proceedings.

d. Expedited proceedings do not mean ruling ex aequo et bono (absent an express authorisation and agreement by the parties) and so legal and factual reasoning is important, unless reasoning is expressly excluded by the parties. However, reasoning may be made in a concise/summary fashion, but must be sufficiently adequate to sustain trust and confidence in the process at large. In doing so, arbitral tribunals may limit the factual and/or procedural sections of the award to what is deemed necessary in light of the specificities of each case.

e. Time is of the utmost essence in expedited proceedings, and so, by way of example, the ICC Court expects an arbitral tribunal acting under the EPP to submit its draft award for scrutiny within five months from the case management conference.⁷⁵

f. Practically, compliance with the three-to-six-month period in rendering awards in expedited proceedings requires utmost good faith cooperation between all stakeholders: the parties, counsel, arbitrators and institution. Thus, if certain procedural complexities and difficulties arise as a result of side disputes over language, jurisdiction, challenges of arbitrators, document production, evidentiary matters, witnesses, experts and/or time extensions, it would be difficult to meet the three-to-six-month time limit. In fact, a three-month time limit, as set by some institutions, appears quite impractical in light of the intricacies and specificities of domestic or international arbitration.

g. There is no causation or correlation between the low value of the disputed claim(s) in expedited proceedings and the likelihood of deciding the case in a shorter period of time. In many instances, low value claims are highly litigious and may even consume same or more time when compared to high value claims.

h. The expertise and sophistication of the parties, counsel and arbitrator(s) play a key role in the proper and efficient management of expedited proceedings, if the intended time to render the award is to be religiously observed.

[Page149:]

i. Keeping track of time and setting out the procedural calendar in full transparency and forcefully at the commencement of the proceedings are indispensable to the success of any expedited proceedings.

In any event, to avert enforceability risks, institutions and arbitral tribunals involved in managing and deciding cases expeditiously must ensure that the ratione temporis jurisdiction of arbitral tribunals is not overlooked. If the time limit for rendering the final award expires without being legally and validly extended, very high risks of setting aside or refusal of recognition and enforcement of the final award would materialise. Under the NYC, Articles V(1)(a) and (d) offer grounds that may be relied upon in this regard to refuse recognition and enforcement, since an award rendered beyond the ratione temporis jurisdiction of the arbitral tribunal may either mean that: (1) the arbitration agreement in relation to this specific dispute has expired or is inexistent; or (2) the proceedings have not been conducted in accordance with the parties’ agreement (including their agreement on the applicable institutional rules).

IV. CONCLUDING REMARKS

Nowadays, expedited arbitral proceedings are among the hotly debated topics in arbitration. In an era of competitive institutional competition, arbitral institutions are competing to cater for the needs of the users, and time and cost are constantly flagged as continuing concerns. The author in this article has attempted to focus on certain aspects and analyse certain issues pertaining to the enforceability of awards rendered in expedited proceedings as detailed herein above. That said, the author sets out below some concluding remarks.

First, it is indeed ironical that arbitration, which was initially showcased and offered as a cure to delays in court proceedings, is now exhibiting the same symptoms of the delay illness it was destined to cure.

Second, it is no secret that the system of international arbitration, as is the case with successful systems, is subject to multi-layered criticisms. However, the continued success of international arbitration as the preferred out-of-court dispute resolution process hinges upon considering and addressing those criticisms properly and adequately. In this spirit, we are witnessing a reconfiguration of the arbitration system through introducing innovative and novel techniques aimed at fulfilling the potential and destiny of arbitration as the prominent dispute resolution scheme. Such reconfiguration occurs on multi-layered and multi-dimensional fronts, and expedited procedure is but one tool that intends to tackle concerns over time and costs in arbitral proceedings. It is in this respect that the expedited procedure introduced by the new ICC Rules is a welcomed innovation, allowing lower value disputes to be dealt with more speedily and cheaply, with due regard to arbitral tribunal discretion in to adopt the appropriate procedure for each individual case within the framework of the EPP.⁷⁶

Third, while expedited proceedings, hitherto, appear to be globally confined to claims of relatively low monetary value, it is submitted that there exists no causation or even correlation between low value claims and the suitability of the dispute to be decided expeditiously. For the avoidance of doubt, it is submitted that efficiency, effectiveness and expediency are [Page150:] relative and their continuum varies depending on nature of the dispute, intricacies of every case and the needs and reasonable expectations of the parties.

Fourth, promoting efficiency through expedited proceedings does create certain constraints on party autonomy, which in turn creates some friction and tension between the necessary regulation and sanctity of party autonomy. However, an in-depth analysis reveals that regulation of expedited proceedings and party autonomy are not polarised concepts; they co-exist harmoniously. It is not suggested or required to accord absolute priority to the parties’ wishes; their freedom should be observed, yet restrained by both legislative and contractual mandatory provisions designed to safeguard the proper conduct of the proceedings and their integrity.

Fifth, where expedited procedural rules apply as part of the generally chosen procedural rules, the parties are deemed to have submitted, by their very own choice and consent, to the self-contained ecumene of these expedited rules, including any provisions restraining deviations or changes by the parties. In effect, by so electing to be governed by the expedited rules, either by direct choice or indirect choice through the selection of institutional rules directing the application of the expedited rules, the parties have accepted and agreed to be bound by their restraining provisions and have effectively elevated such restraining provisions to the level of contractual mandatory provisions that the parties may not derogate from. In AQZ v ARA, the Singaporean Court held that the SIAC Rules referred to by the parties contained expedited procedure provisions, and so it was consistent with party autonomy for the expedited procedure involving a sole arbitrator to override the parties’ agreement on three arbitrators.⁷⁷

Sixth, given the novelty of expedited procedure regulation, courts in some jurisdictions are still shaping their edifice of principles and precedents governing the recognition and enforcement of awards rendered in expedited or summary proceedings.

Seventh, while nothing in the NYC or national arbitration laws support a distinction between expedited and non-expedited proceedings when enforcing arbitral awards, in a manner leading to variances in treating awards rendered in summary or expedited proceedings less favourably, some judicial trends appear to give precedence to unequivocal party autonomy and choices on specific issues such as the number of arbitrators, the necessity for an in-person hearing, etc. over the standard provisions enshrined in the applicable expedited rules. Some court decisions have clearly stated that specifically agreed upon procedures prevail over the generally applicable institutional rules, which are intended to supplement the parties’ express agreement.⁷⁸ In the Shanghai Court’s very recent decision rendered on 11 August 2017 the application to enforce an award in China was dismissed on the premise that the SIAC’s sole arbitrator expedited procedure disregarded the parties’ express choice of three arbitrators as set out in the arbitration clause.⁷⁹ However, this decision must be read in context and with caution, since it appears to have relied on the absence of an express provision in the SIAC 2013 Rules giving primacy and precedence to said Rules over the parties’ agreement. Accordingly, institutions and arbitral tribunals should be mindful of the specificities and anomalies of each jurisdiction. The more likely that a jurisdiction would give precedence to express and specific choices by [Page151:] the parties, the less inclined institutions and arbitral tribunals should be to disregard the parties’ express choices, so as to safeguard the enforceability of the award in such jurisdiction(s).

Eighth, it is indeed important and beneficial to include an express provision (such as Article 30.1 of the ICC Arbitration Rules 2017) stating that by submitting and agreeing to the application of the institutional arbitration rules, the parties are deemed to have agreed that the rules will prevail and override any contrary terms agreed by the parties.

Ninth, references to ‘fair/reasonable/adequate’ opportunity, ‘full’ opportunity and/or simply an ‘opportunity’ can become recipes for disputes over issues of due process, especially in the absence of well-defined criteria to determine encroachments and violations of due process. However, almost all expedited procedural rules bestow upon arbitral tribunals broad procedural powers to save time and costs. Nevertheless, to avoid or mitigate the risk of annulment of the award and/or denial of recognition and enforcement, arbitrators will no doubt have to cautiously apply the applicable expedited proceedings taking into consideration the complexity of the case, the circumstances and specificities of the transaction.

Tenth, time is of the utmost essence in expedited proceedings. However, expedited proceedings do not mean ruling ex aequo et bono (absent an express authorisation and agreement by the parties) and so reasoning is indispensable, unless expressly excluded by the parties.

Eleven, practically, compliance with the three-to-six month period in rendering awards in expedited proceedings requires utmost good faith cooperation between all stakeholders: the parties, counsel, arbitrators and institution. In any event, to avert enforceability risks, institutions and arbitral tribunals must ensure that the ratione temporis jurisdiction of arbitral tribunals is observed and not contravened. On this specific issue of time limits, it seems in order to refer to a decision by the UAE Federal Supreme Court in Challenge No.891 of the Judicial Year 27 (Hearing Session of 17 June 2006), where the Supreme Court declined to set aside an arbitral award on the disproved allegation of expiry of the time limit for rendering the award. The Court expressly reasoned that:⁸⁰

This judgment, which is not rendered in relation to expedited proceedings (but remains pertinent to the issues discussed) shows that the Court started its analysis from the lex loci arbitri, which supports the choice of institutional rules. The Court then considered the applicable institutional rules (i.e. the ADCCAC Rules) and verified whether the said Rules entitle the parties to agree on specific time limits and so upheld the parties’ agreement to set six months from the date of the first hearing session to render the final award. Subsequently, the Court calculated the time and ascertained that the arbitral tribunal did not exceed the agreed time line and so the challenge was meritless.

By and large, it is submitted that the success of expedited proceedings will mark a glistening future path for arbitration. With the advent of technology and its integration in dispute resolution processes, it is expected that expedited proceedings will in the not-too-distant future find their way to govern high value claims and enforceability of the awards rendered would not be problematic, especially that arbitral tribunals are expected to uphold and safeguard the fundamental principles of due process in any proceedings, whether expedited or not. Due process does not, in any way, necessitate delay.

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*
Mohamed S. Abdel Wahab, Chair, Private International Law Department and Professor of Dispute Resolution at Cairo University; Founding Partner and Head of International Arbitration, Zulficar & Partners Law Firm (Egypt). The views expressed by the author herein are his own and do not rep-resent the views of any institution with which the author is affiliated. Such views may also change depending on the circumstances and specificities of each case.

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1
‘Rules of Arbitration of the International Chamber of Commerce’, available at https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/. See also, ‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration, 1 March 2017’, available at https://iccwbo.org/publication/note-parties-arbitral-tribunals-conduct-arbitration/.

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2
Article 30 of the ICC Arbitration Rules stipulates that: "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."

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3
Article 38.5 of the ICC Rules stipulates that "5. In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. […]"

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4
Michael Buhler; Pierre Heitzmann, ‘The 2017 ICC Expedited Rules: From Softball to Hardball?’, Journal of International Arbitration, Volume 34, Issue 2, pp. 121-148, available at http://www.kluwerlawonline.com/abstract.php?id=JOIA2017009.

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5
Rule 5, entitled Expedited Procedure, enshrined under the General Ruled of the ‘SIAC Rules 2016’, available at http://www.siac.org.sg/images/stories/articles/rules/2016/SIAC%20Rules%202016%20English_28%20Feb%202017.pdf.

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6
‘Rules for Expedited Arbitrations 2017’, available at http://www.sccinstitute.com/media/178161/expedited_arbitration_rules_17_eng__web.pdf.

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7
Chapter VI, entitled Expedited Procedures, enshrined under the General Rules of the ‘JCAA Commercial Arbitration Rules 2015’, available at http://www.jcaa.or.jp/e/arbitration/docs/Arbitration_Rules_2015e.pdf.
[Page153:]

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8
Article 42, entitled Expedited Procedure, enshrined under the General Rules of the ‘Swiss Rules of International Arbitration of 2012’, available at https://www.swissarbitration.org/files/33/Swiss-Rules/SRIA_english_2012.pdf.

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9
Article 41, entitled Expedited Procedure, enshrined under the general rules of the ‘HKIAC Administered Arbitration Rules 2013’, available at http://www.hkiac.org/sites/default/files/ck_filebrowser/PDF/arbitration/2013_hkiac_rules.pdf.

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10
Articles E-1:E-10, entitled Expedited Procedure, enshrined under the General Rules of the ‘American Arbitration Association 2013’, available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf.

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11
Article E-2: Changes of Claim or Counterclaim, Expedited Procedures of the ‘American Arbitration Association 2013’, available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf.

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12
Sub-Rule 5.1, of the Expedited Procedure of the ‘SIAC Rules 2016’, available at http://www.siac.org.sg/images/stories/articles/rules/2016/SIAC%20Rules%202016%20English_28%20Feb%202017.pdf.

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13
Michael Buhler; Pierre Heitzmann, ‘The 2017 ICC Expedited Rules: From Softball to Hardball?’, Journal of International Arbitration, Volume 34, Issue 2, pp. 121-148, available at http://www.kluwerlawonline.com/abstract.php?id=JOIA2017009.

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14
Sub-Article 1.2 of Appendix VI of the ICC Expedited Procedure Rules, stipulates that: "2. The amount referred to in Article 30(2), subparagraph a), of the Rules is US$ 2,000,000."

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15
Athina Fouchard Papaefstratiou, ‘The New ICC Expedited Procedural Rules: Towards More Efficient Justice’, Article available at http://internationalarbitrationlaw.com/blog/the-new-icc-expedited-procedural-rules-towards-more-efficient-justice/, published on 1 February 2017.

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16
Under Sub-Article 30.2 of the ICC Arbitration Rules, 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; or b) the parties so agree."

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17
‘Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration, 1 March 2017’, p. 10, para. 61, available at https://iccwbo.org/publication/note-parties-arbitral-tribunals-conduct-arbitration/.

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18
Thus, the ICC Note stipulates that "The Court may at any time, upon request of a party or on its own motion after consulting the arbitral tribunal and the parties, decide that the Expedited Procedure Provisions shall no longer apply (Article 1(4) of Appendix VI). The Court may in particular use such power in case new circumstances arise that make the application of the Expedited Procedure Provisions no longer appropriate."

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19
Article 2, entitled Constitution of the Arbitral Tribunal, the ICC Expedited Procedure Rules, Appendix VI of the ICC Arbitration Rules, available at https://iccwbo.org/publication/arbitration-rules-and-mediation-rules/.

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20
Sub-Article 3.4, the ICC Expedited Procedure Rules, Appendix VI of the ICC Arbitration Rules, available at https://iccwbo.org/publication/arbitration-rules-and-mediation-rules/.

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21
Sub-Article 3.5, the ICC Expedited Procedure Rules, Appendix VI of the ICC Arbitration Rules, available at https://iccwbo.org/publication/arbitration-rules-and-mediation-rules/.

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22
Claire Stockford, Jane Wessel, ‘New ICC Expedited Procedure: balancing efficiency with party autonomy’, Article available at http://www.lexology.com/library/detail.aspx?g=8892e6e4-5f65-4544-9d27-c88c0c070d29, published on 2 January 2017.

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23
Thrope, J., ‘A Question of Intent: Choice of Law and the International Arbitration Agreement’ (1999), 54(4) Dispute Resolution Journal p.17.

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24
International Law Association (ILA), ILA Report on Inherent and Implied Powers of International Arbitral Tribunals (2014) and the ILA Resolution No.4/2016 on the Inherent and Implied Powers of International Arbitral Tribunals (2016).

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25
Yu, H. and Molife, P., ‘The Impact of National Law Elements on International Commercial Arbitration’ (2001), 4(1) Int.A.L.R. p.17.

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26
Nigel Blackaby and Constantine Partasides QC with Alan Redfern and Martin Hunter, ‘Redfern & Hunter on International Arbitration’, (6th ed 2015), p. 605.

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27
Craig Tevendale and Andrew Cannon, ‘Chapter 26: Enforcement of Awards’, in Julian D. M. Lew, Harris Bor, p. 563

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28
Supra note 28.

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29
Gary B. Born, International Arbitration: Law and Practice, (2nd edition), p. 375.

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30
Supra 28, p.616.

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31
Article V of the NYC states:
[Page154:]
"1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country."

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32
Nigel Blackaby and Constantine Partasides QC with Alan Redfern and Martin Hunter, ‘Redfern & Hunter on International Arbitration’, (6th ed 2015), p. 605.

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33
See U.N. Conference on Int’l Commercial Arbitration, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art. V(1)(d)(1958), available at http://www.uncitral.org/english/texts/arbitration/NY-conv/XXII_1_E.pdf.

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34
U.N. Commission on Int’l Trade Law, UNCITRAL Model Law on International Commercial Arbitration, Art. 19(1), available at http://www.uncitral.org/english/texts/arbitration/ml.arb-e.pdf.

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35
Supra note 29.

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36
See Gary B. Born, International Commercial Arbitration: Commentary And Materials, (2d ed 2001), p. 414

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37
Julian D.M. Lew Et Al., Comparative International Commercial Arbitration, (2003), p. 412.

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38
Cairo Court of Appeal, 7th Commercial Circuit, Case No. 70/123 JY, hearing date 9 March 2011.

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39
Cairo Court of Appeal, 7th Commercial Circuit, Case No. 393/132 JY, hearing date 7 December 2015.

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40
United Nations Commission on International Trade Law (UNCITRAL), Report of the Secretary-General: Possible Features of a Model Law on International Commercial Arbitration, UN Doc. A/CN.9/2017 (UN, 1981).

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41
Claire Stockford, Jane Wessel, ‘New ICC Expedited Procedure: balancing efficiency with party autonomy’, Article available at http://www.lexology.com/library/detail.aspx?g=8892e6e4-5f65-4544-9d27-c88c0c070d29, published on 2 January 2017.

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42
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, page 12, para. 77, available on https://cms.iccwbo.org/content/uploads/sites/3/2017/03/ICC-Note-to-Parties-and-Arbitral-Tribunals-on-the-Conduct-of-Arbitration.pdf

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43
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, page 12, para. 76, available on https://cms.iccwbo.org/content/uploads/sites/3/2017/03/ICC-Note-to-Parties-and-Arbitral-Tribunals-on-the-Conduct-of-Arbitration.pdf.

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44
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, page 12, para. 78, available on https://cms.iccwbo.org/content/uploads/sites/3/2017/03/ICC-Note-to-Parties-and-Arbitral-Tribunals-on-the-Conduct-of-Arbitration.pdf.
[Page155:]

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45
Fabian Bonke, ‘Overriding an Explicit Agreement on the Number of Arbitrators – One Step Too Far Under the New ICC Expedited Procedure Rules?’, Kluwer Arbitration Blog, May 22 2017, http://kluwerarbitrationblog.com/2017/05/22/overriding-an-explicit-agreement-on-the-number-of-arbitrators-one-step-too-far-under-the-new-icc-expedited-procedure-rules/

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46
Article 34(2)(a)(iv) states that:
"(2) An arbitral award may be set aside by the court specified in article 6 only if: (a) the party making the application furnishes proof that: [..] (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; […]", available at http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf.

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47
See Singapore High Court, AQZ v ARA [2015] SGHC 49, Suit No. 530 of 2014 and No. 3168 of 2014, Decision Date 13 February 2015, available at http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/15914-aqz-v-ara-2015-sghc-49.

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48
Ibid.

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49
‘W Company v Dutch Company and Dutch Holding Company [2012] 1 SAA 97’, referred to in the Singapore Singapore High Court, AQZ v ARA [2015] SGHC 49, Suit No. 530 of 2014 and No. 3168 of 2014, Decision Date 13 February 2015, available at http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/15914-aqz-v-ara-2015-sghc-49.

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50
See Singapore High Court, AQZ v ARA [2015] SGHC 49, Suit No. 530 of 2014 and No. 3168 of 2014, Decision Date 13 February 2015, available at http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/15914-aqz-v-ara-2015-sghc-49.

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51
Gary B. Born, Jonathan W. Lim, ‘AQZ v ARA: Singapore High Court Upholds Award Made under SIAC Expedited Procedure’, Article available at http://kluwerarbitrationblog.com/2015/03/09/aqz-v-ara-singapore-high-court-upholds-award-made-under-siac-expedited-procedure/, published on 9 March 2015.

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52
Rule 5.3 of the SIAC Rules states:
"5.3 By agreeing to arbitration under these Rules, the parties agree that, where arbitral proceedings are conducted in accordance with the Expedited Procedure under this Rule 5, the rules and procedures set forth in Rule 5.2 shall apply even in cases where the arbitration agreement contains contrary terms." This is highly comparable and similar to Article 30.1 of the ICC Arbitration Rules.

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53
Douglas Thomson, ‘Shanghai court refuses to enforce SIAC sole arbitrator’s award’, available at http://globalarbitrationreview.com/article/1146936/shanghai-court-refuses-to-enforce-siac-sole-arbitrators-award, published on 30 August 2017.

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54
‘SIAC Rules 2013’, available at http://www.siac.org.sg/our-rules/rules/siac-rules-2013#siac_rule5. Article 5 of the SIAC Rules stipulates:

"5.1 Prior to the full constitution of the Tribunal, a party may apply to the Registrar in writing for the arbitral proceedings to be conducted in accordance with the Expedited Procedure under this Rule where any of the following criteria is satisfied:
the amount in dispute does not exceed the equivalent amount of S$5,000,000, representing the aggregate of the claim, counterclaim and any set-off defence;
the parties so agree; orc. in cases of exceptional urgency.

5.2 When a party has applied to the Registrar under Rule 5.1, and when the President determines, after considering the views of the parties, that the arbitral proceedings shall be conducted in accordance with the Expedited Procedure, the following procedure shall apply:
The Registrar may shorten any time limits under these Rules;
The case shall be referred to a sole arbitrator, unless the President determines otherwise;
Unless the parties agree that the dispute shall be decided on the basis of documentary evidence only, the Tribunal shall hold a hearing for the examination of all witnesses and expert witnesses as well as for any argument;
The award shall be made within six months from the date when the Tribunal is constituted unless, in exceptional circumstances, the Registrar extends the time; and
The 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."

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55
Paul Teo, ‘Shanghai Court Refuses Enforcement of SIAC Award Made under 2013 SIAC Expedited Procedure’, available at http://www.bakermckenzie.com/en/insight/publications/2017/09/shanghai-refuses-siac-award/, published on 15 September 2017.
[Page156:]

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56
‘PRC Court refuses to enforce SIAC arbitral award made by one arbitrator under expedited arbitration procedures when arbitration agreement provided for three arbitrators’, available at https://www.hoganlovells.com/en/publications/prc-court-refuses-to-enforce-siac-arbitral-award-arising-out-of-the-expedited-procedure-where-arbitration-agreement-provided-for-three-arbitrators, published on August 2017.

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57
Ibid. Pursuant to Article 5.2(b) of the SIAC Rules: "the case shall be referred to a sole arbitrator, unless the President determines otherwise"

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58
Ibid.

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59
Ibid.

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60
‘SIAC 2016 Rules’, available at http://www.siac.org.sg/our-rules/rules/siac-rules-2016.

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61
See Articles 5.3 of the SIAC 2016 Rules and 30.1 of the ICC Rules as amended in March 2017.

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62
‘PRC Court Refuses to Enforce An SIAC Award Made Under Expedited Procedure’, available at http://hsfnotes.com/arbitration/2017/08/22/prc-court-refuses-to-enforce-an-siac-award-made-under-expedited-procedure/.

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63
Article V(1)(d) of the NYC.

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64
Article 41.1 of the HKIAC Arbitration Rules, available at http://www.hkiac.org/sites/default/files/ck_filebrowser/PDF/arbitration/2013_hkiac_rules.pdf. Article 41.1 states
"when HKIAC, after considering the views of the parties, grants an application made pursuant to Article 41.1 [the Expedited Procedure], the arbitral proceedings shall be conducted in accordance with an Expedited Procedure based upon the foregoing provisions of these Rules, subject to the following changes:
1. the case shall be referred to a sole arbitrator, unless the arbitration agreement provides for three arbitrators;
2. 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 […]"

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65
Article 42.2 of the Swiss Arbitration Rules, available at https://www.swissarbitration.org/files/33/Swiss-Rules/SRIA_english_2012.pdf.

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66
JCAA Arbitration Rules, available at http://www.jcaa.or.jp/e/arbitration/docs/Arbitration_Rules_2015e.pdf.

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67
See for example, Articles 22.4 of the ICC Rules (2017), 14.4-i of the LCIA Rules (2014), 17.1 UNCITRAL Rules (2010 – 2013), 32.a AAA (2013), 13.1 of the HKIAC Rules (2015), 35.1 of the CIETAC Rules (2015), 23.2 of the SCC Rules (2017), 27.m and 32.6 and Schedule 1-7 of the SIAC Rules (2016), 29 of the SCAI (2012) and 33.1 of the English Arbitration Act (1996).

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68
See for example, Articles 17.1 of the CRCICA Rules (2011); the 17.2 of the DIAC Rules (2007); 25 of the Jordanian Arbitration Law (2001); and 26 of the Egyptian Arbitration Law (1994).

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69
See for example, Articles 1485 of the French Arbitration Law (2011); and 5.4, 7.10, 8.9, 20.9, 26.3, 29.3 of the SIAC Rules (2016).

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70
Michael Buhler; Pierre Heitzmann, ‘The 2017 ICC Expedited Rules: From Softball to Hardball?’, Journal of International Arbitration, Volume 34, Issue 2, pp. 121-148, available at http://www.kluwerlawonline.com/abstract.php?id=JOIA2017009.

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71
Svea Court of Appeal, Case No. T 6238-10, Decision Date 24 February 2012, available at https://www.arbitration.sccinstitute.com/Views/Pages/GetFile.ashx?portalId=89&cat=95791&docId=1767474&propId=1578.

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72
Austrian Supreme Court (Oberster Gerichtshof), Case No. 1442, dated 30 June 2010, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/V15/007/89/PDF/V1500789.pdf?OpenElement.

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73
Michael Buhler; Pierre Heitzmann, ‘The 2017 ICC Expedited Rules: From Softball to Hardball?’, Journal of International Arbitration, Volume 34, Issue 2, pp. 121-148, available at http://www.kluwerlawonline.com/abstract.php?id=JOIA2017009.

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74
Travis Coal Restructured Holdings LLC v Essar Global Fund Limited [2014] EWHC 2510, para 44, where the Court stated: "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." [Emphasis added]

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75
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, page 14, paras. 91 and 92, available on https://cms.iccwbo.org/content/uploads/sites/3/2017/03/ICC-Note-to-Parties-and-Arbitral-Tribunals-on-the-Conduct-of-Arbitration.pdf.
[Page157:]

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76
Claire Stockford, Jane Wessel, ‘New ICC Expedited Procedure: balancing efficiency with party autonomy’, Article available at http://www.lexology.com/library/detail.aspx?g=8892e6e4-5f65-4544-9d27-c88c0c070d29, published on 2 January 2017.

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77
See Singapore High Court, AQZ v ARA [2015] SGHC 49, Suit No. 530 of 2014 and No. 3168 of 2014, Decision Date 13 February 2015, available at http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/15914-aqz-v-ara-2015-sghc-49.

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78
Cairo Court of Appeal, 7th Commercial Circuit, Case No. 70/123 JY, hearing date 9 March 2011; Cairo Court of Appeal, 7th Commercial Circuit, Case No. 393/132 JY, hearing date 7 December 2015.

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79
Douglas Thomson, ‘Shanghai court refuses to enforce SIAC sole arbitrator’s award’, available at http://globalarbitrationreview.com/article/1146936/shanghai-court-refuses-to-enforce-siac-sole-arbitrators-award, published on 30 August 2017.

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80
UAE Federal High Court Judgment in Challenge No.891 of the Judicial Year 27, Hearing Session of 17 June 2006.

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