The 1998 version of the ICC Rules of Arbitration is capable of accommodating expedited arbitration procedures through Article 32, which allows parties to shorten time limits laid down in the Rules. The note reproduced here was drawn up by Antonias Dimolitsa, member of the ICC Commission on Arbitration and leader of its Forum on the ICC Rules and the Court. It is intended to inform and assist parties who may wish to implement an accelerated procedure within the framework of the ICC Rules of Arbitration. It discusses aspects of the Rules and the conduct of proceedings to which special attention should be given when contemplating fast-tack arbitration.

Preliminary remarks

1. This note is intended for parties wishing to organize an expedited ICC arbitration procedure. Parties are reminded that expedited or fast-track arbitration proceedings have always been possible under the Rules of Arbitration of the International Chamber of Commerce (hereafter 'the Rules' 1). Following the last revision of the Rules, Article 32 now clearly affords parties the possibility of shortening time limits set out in the Rules by mutual agreement. However, this possibility is subject to three restrictions: first, parties may only shorten time limits set out in the Rules and not impose time limits upon the ICC International Court of Arbitration (hereafter 'the Court') and its Secretariat; second, once the arbitral tribunal has been constituted, any agreement between the parties to shorten time limits is subject to its approval; third, the Court may at any time extend a shortened time limit if it considers this to be necessary. These three restrictions upon the parties' freedom to shorten time limits are simply consistent with the specific characteristics and guarantees of the ICC arbitration system, which remain intact in expedited or fast-track proceedings.

2. In order to ensure that expedited proceedings are organized effectively, parties need to be fully conversant with the Rules and accurately predict the time required for their implementation in practice. In addition, they must assess their dispute in order to satisfy themselves that it is amenable to an expedited procedure fully compliant with due process. Parties may provide for expedited proceedings either before or after a dispute has arisen. The drafting of a pre-dispute fast-track arbitration agreement is to be recommended only if the range and specific nature of any future disputes can indeed be anticipated. A post-dispute expedited arbitration agreement can in fact be countenanced only when expedited proceedings are of real interest to both parties. In any event, the cooperation of the parties is of utmost importance for achieving an efficient procedure under increased time pressure.

3. The Court and its Secretariat will assist parties in achieving an expedited procedure. The Court is indeed in a position to take any necessary rapid decisions to ensure the arbitration is conducted in conformity with the Rules: Committees of the Court are held weekly throughout the year, while Article 1(3) of the Rules gives the Chairman of the Court the power to take 'urgent decisions' on behalf of the Court at any time. The Court's power to extend shortened time limits, which it derives from Article 32(2) of the Rules, is not a matter of routine; it is used sparingly with a view to securing the effectiveness of the procedure and the award, and only when specific circumstances so demand.[Page30:]

Drafting a fast-track arbitration clause

4. A carefully drafted arbitration agreement is important no matter what kind of arbitration is contemplated. Adoption of the standard ICC arbitration clause is recommended only for parties wishing to submit their disputes to normal ICC arbitration proceedings. If, when entering into their contract, the parties already agree that they wish to opt for a fast-track arbitration, the sole part of the standard ICC arbitration clause that stands as such is the phrase stating that disputes 'shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce'. As for the rest, it is for the parties to frame their arbitration clause as they think fit, having regard to the potential fast-track arbitration they envisage. Although it is impossible to propose a standard fast-track arbitration clause, certain recommendations may nevertheless be made regarding the contents of such a clause.

Customary stipulations acquiring specific value

5. Some stipulations which clarify a priori certain basic issues, valid in every arbitration, are commonly encountered in arbitration clauses. These stipulations, which may be desirable in a normal arbitration clause, become extremely valuable, if not indispensable, in a fast-track arbitration clause. They relate to the following issues:

Applicable rules of law. It is obvious that lack of agreement on the rules of law governing the contract will often lead to an exchange of pleadings between the parties on this issue once the dispute has arisen. The procedure therefore risks being slowed down considerably.

Place of the arbitration.2 If the place of arbitration has not been determined by the parties, it will be fixed by the Court (Article 14(1)) sitting as a Committee, in light of any relevant comments from the parties. Such a decision by the Court will not delay the commencement of the proceedings, but it may indirectly affect their progress. When fixing the place of arbitration, the Court takes into consideration, inter alia but primarily, the criterion of neutrality. Thus, although neutral, the place of arbitration fixed by the Court may not necessarily be convenient to one or even both of the parties, a situation which will clearly not facilitate an accelerated procedure.

Language(s). If the parties have not agreed on the language(s) of the arbitration, the decision will be made by the arbitral tribunal, which will result in a loss of time. The use of one language obviously increases the speed of the proceedings, unless all members of the arbitral tribunal - and the counsel involved - are fluent in the different languages contemplated by the parties.

Number of arbitrators. A sole arbitrator best befits an accelerated procedure, as the constitution of the arbitral tribunal takes less time and the organization of the proceedings is easier. However, the parties' decision as to the number of arbitrators should depend above all on their evaluation of the magnitude and importance of the disputes that are likely to arise out of their contract. In any event, the parties should set short time limits for any joint nomination of a sole arbitrator, or the nomination of a co-arbitrator by the respondent and the subsequent joint nomination of the chairman by the parties or the co-arbitrators, so that, failing nomination within the agreed deadlines, the Court may directly make the relevant appointment(s).[Page31:]

Agreed time limits

6. Parties should bear in mind that if they shorten any time limits set out in the Rules, the Court may always extend them (Article 32(2)). It is most likely that a stipulation by the parties in the arbitration clause that time limits shall be non-extendable will be of no effect, as the Court will refuse to administer such a fast-track arbitration. This residual right of the Court to extend time limits allows the arbitration to continue validly in the event that the time limits agreed by the parties cannot be respected. However, the Court will exercise this right only in rare cases, as when requested to do so by the arbitral tribunal for reasons of due process or, without such a request, in order properly to perform its own functions under the Rules.

7. The arbitration clause may set two kinds of time limits: a single deadline by which the final award must be rendered and/or separate time limits for some or all of the phases of the procedure. The deadline for rendering the award is a key feature in a fast-track arbitration. With the possible exception of the time limit specified in the Rules for the Terms of Reference, which could usefully be shortened, it is neither necessary nor advisable to set separate time limits for each of the various procedural steps. Not until the dispute has actually arisen can the parties organize in a pragmatic way, with the assistance or decisive intervention of the tribunal, the different procedural steps within the agreed deadline for rendering the award.

8. One can never rule out the possibility that circumstances may call for the application of the provisions in the ICC Rules relating to the challenge or replacement of an arbitrator. Regardless of whether such requests by a party are based on plausible grounds or constitute dilatory tactics, they will inevitably lead to delays in obtaining a final award. Consequently, it may be advisable for parties seeking a fast-track arbitration to shorten the time limits of Article 11(2) and even provide that the time limit for rendering the award will be prolonged or started anew in the event of a successful challenge or replacement in general of an arbitrator.3

9. The arbitration clause must clearly define the beginning and the end of the time limit for rendering the award. Although the parties generally see the notification of the award to them by the Secretariat as marking the end of the time limit, this needs to be clearly defined in the clause. As to the starting point, it may be variously perceived. The moment at which the case file is transmitted to the arbitral tribunal, pursuant to Article 13 of the Rules, is recommended as the most appropriate beginning of the time limit. Fixing it any earlier could result in an unpredictable loss of time before the arbitral tribunal is in a position to proceed to the examination of the merits of the dispute.

Segmentation of disputes

10. Not all disputes are amenable to fast-track arbitration. This is a fundamental precept, by which the parties should be guided when elaborating their arbitration clause. If, however, the parties reasonably believe that the contract and all disputes likely to arise out of it are of such a nature as to make such disputes amenable to settlement by a fast-track arbitration, they should reproduce in their arbitration clause the relevant part of the recommended standard ICC clause, i.e.: 'All disputes arising out of or in connection with the present contract shall be finally settled . . .'[Page32:]

11. Parties may wish to submit only a part of their contractual relationship to fast-track arbitration and opt for normal arbitration or national courts for the remaining part. In the event of such segmentation, it is of the utmost importance that the parties define very clearly the issues that are to be resolved by fast-track arbitration. Otherwise, besides the obvious risk of conflict of jurisdictions, a controversy may arise within the fast-track arbitration proceedings over whether or not an issue comes within the ambit of the fast-track clause, making it necessary for the arbitral tribunal to give a decision on this preliminary question. A significant period of time may thus be wasted, defeating the purpose of the fast-track arbitration clause.

Commencing the arbitration

The request for arbitration

12. Article 4(3) of the Rules sets out the information that must be contained in the Request for Arbitration ('Request'). This is the minimum requirement. The claimant is free to decide on the degree of completeness of its Request with respect to both the facts and the legal basis of its claims. It is also free to choose whether to submit all documentary evidence with the Request. Such flexibility is understandable in the case of normal arbitration, given that one or more exchanges of substantial written pleadings, supported by relevant documentation, are normally produced after the Terms of Reference.

13. In the case of a fast-track arbitration, the claimant should use the freedom given to it by the above provision in the sense of making its Request as complete as possible. A complete and detailed Request will most probably elicit a complete and detailed Answer. If, in their arbitration clause, the parties have not provided a shorter time limit for the Answer than the 30 days set out in Article 5(1) - which is quite likely as at the time the arbitration clause is drawn up neither party knows whether it will be claimant or respondent in the future - the 30-day time limit must be regarded as sufficient for filing a complete Answer to a complete Request in a fast-track context. The exchange of comprehensive pleadings, before the constitution of the arbitral tribunal, will significantly contribute to the rapidity of the proceedings sought by the parties.

Choice of arbitrators

14. Parties must choose their arbitrators with great care. Particular consideration should be given to both the arbitrator's ability and availability to conduct a fast-track arbitration. Persons nominated by the parties for confirmation by the Court should be independent, experienced in the subject matter of the dispute, fluent in the language(s) of the arbitration and, ideally, possessed of a talent for persuasion and control so as to minimize the untoward effects of a party's recalcitrance. Moreover, and especially, they must have not only the necessary time, but also the willingness to resolve the particular dispute through a fast-track procedure. This implies that parties should approach potential arbitrators to enquire about the existence of such availability and willingness.4[Page33:]

Arbitration proceedings

15. Notwithstanding the existence of a fast-track arbitration clause, the successful progress of accelerated arbitration proceedings will depend to a large extent on the cooperation between the parties. However, the arbitral tribunal may intervene to impose certain rules and procedural deadlines against a recalcitrant party, if the fast-track arbitration clause is unambiguous. In any event, the Terms of Reference should be drawn up within a very short period of time, for instance one week. This will obviously be facilitated if both parties produce a summary of their claims and the relief sought.

16. The procedural timetable (Article 18(4)) acquires particular importance in expedited arbitration proceedings and indeed determines how they will develop. The dates of all procedural steps - including, possibly, some fallback dates - must be specified in the procedural timetable in light of the period allowed in the arbitration clause for rendering the award. The timetable cannot, however, make use of this entire period, since a part of it must obviously be kept for drafting the award and its subsequent scrutiny by the Court. Parties are expected to adhere strictly to the timetable, which in a fast-track arbitration must in principle be considered as definitive.

17. The specific procedural steps will depend on the needs of each individual case. However, some general guidelines may be given for the achievement of an expedited procedure: (i) if the Request and the Answer are comprehensive, further written pleadings must be limited to what is strictly necessary; (ii) oral hearings may not be indispensable; if they are, their dates must be consecutive or at least closely set in time; (iii) substantial discovery proceedings must be excluded; (iv) a request for disclosure of documents can be accepted only if the documents are clearly pertinent to the resolution of the dispute; (v) the number of witnesses and the contents of their testimonies must be limited to what is strictly necessary; (vi) the appointment of a neutral expert will occur only in exceptional circumstances; (vii) parties should refrain from producing bulky files of documents and submit only documentation which is essential to the understanding and/or proof of their positions.

Concluding remark

18. The ICC Rules are imbued with the conviction that speed should remain a real advantage of international arbitration. However, every dispute is different and has its own procedural time demands. If parties wish to organize and conduct a fast-track procedure in relation to particular disputes, the Court and its Secretariat are ready to assist them. However, time efficiency depends chiefly on the common will of the parties and the reasonableness of the venture.

1
In this note terms from the ICC Rules of Arbitration are used with the meaning they have in those Rules.

2
Parties must always consider the law of the place of arbitration. It might be necessary for them to include in their arbitration clause some additional stipulations, e.g., if the place of arbitration is situated in England, a waiver by the parties of their right of recourse to the courts on points of law (see English Arbitration Act, ss. 45(1) & 69(1)); or, if the place of arbitration is situated in the USA, an express agreement that the arbitral tribunal has the power to determine its own jurisdiction, including the validity and the scope ratione personae of the arbitration agreement.

3
The provisions of Article 29 of the Rules concerning the interpretation and correction of awards relate to a phase that comes after the expedited procedure per se. However, it might be prudent for parties to shorten Article 29 time limits too.

4
Equal care is required when choosing counsel for fast-track arbitrations. They should be not only experienced but also willing to focus on the dispute and capable of working within strict time limits.