The very notion of expedited procedure may be frightening to some, and with good reason. In fact, Professor Philippe Fouchard, one of the pioneers of modern international arbitration, expressed some doubt as to the merit of fast and cheap procedures. In his famous 1965 book, he reminded the reader of the well-known fable by Jean de Lafontaine, The Cat, the Weasel and the Little Rabbit. In this fable, the weasel and the little rabbit decide to submit a dispute to the cat, which Lafontaine describes as an "arbitrator expert in all matters".1 The cat asks the parties to present their case and the arbitrator settles the dispute by eating them both. This was a cheap and fast arbitration, pointed out Fouchard!2

What a pleasant way to stress the inevitable tension between concerns regarding speed and due process. But the duration of some arbitration procedures has nothing to do with due process. It is not to give the parties a reasonable opportunity to present their case that these procedures last several years. It is the result of the increasing standardisation of the arbitration procedure, without taking into consideration the characteristics of each case and of the specific issues to be solved. There are ways and means to conduct proceedings in a reasonable time without jeopardising due process.

This Dossier XVI of the ICC Institute of World Business law explores some of these ways and means. It will be the basis for the discussions to be held during the 37th Annual Meeting of the ICC Institute on 1 December 2017. The program was prepared by Laurent Levy and Michael Polkinghorne, two very active and experienced members of the Institute’s Council who have been involved in many arbitration procedures. They have chosen contributors with huge expertise in their respective fields.

Adapting the arbitration procedure to the specificity of the case may be done by applying special rules or by having recourse to tailor made procedural devices within the framework of general rules.

Among the special rules to be applied in order to reduce the duration and, as a consequence, the costs of arbitration proceedings, the Amended ICC Rules of Arbitration entered into force on 1 March 2017 deserve particular attention as they include an ICC expedited procedure automatically applicable to cases with an amount in dispute below US$2 million, unless expressly excluded by the parties. The parties may also agree to the application of the expedited procedure when the amount in dispute exceeds US$2 million. Under this expedited procedure, final awards must be issued within six months from the first case management conference which must take place 15 days after the case has been transmitted to the arbitral tribunal, unless granting an extension is found to be necessary by the ICC [Page6:] Court of International Arbitration. Since relatively small cases may be as complicated as cases involving a huge financial interest, to conduct an expedited procedure requires from the arbitrator – mostly a sole arbitrator – authority, focus and imagination in order to conciliate speed and due process. This Dossier will considerably help them. For the arbitrators, applying expedited rules is the opposite of the procedural standardisation, with its detrimental impact on time and costs. It it will be beneficial to arbitration at large, since the arbitrators who have been sitting in expedited procedures will develop the skills necessary to conduct without delaying ordinary procedure. It is what the parties expect.

Special rules for particular types of disputes also aim at fast decisions. For obvious reasons, that is the case with sport arbitration and also of the resolution of disputes relating to domain names. This dossier explores these sectorial set of rules.

However, the parties and the arbitrators already have at their disposal many procedural tools which may be used in ordinary procedures in order to avoid unnecessary delay. The Report of the ICC Task Force on "Techniques for Controlling Time and Costs in Arbitration" referred to in the Appendix IV to the ICC rules of Arbitration is a source of useful information in this respect. Yet, other solutions are more problematic for they are seen as raising enforcement issues. It is the case of summary decisions requested to dismiss claims supposed to be unmeritorious.

The advantage of such decisions is obvious as, if a claim does not appear to have a serious prospect of succeeding, it seems to be reasonable to dispose of it in an expeditious way, without disclosure of documents and a full hearing with several witnesses and experts. In practice, experience tells us that most arbitrators are very reluctant to dismiss a claim by a summary decision. Among the reasons invoked to explain such shyness is the fact that beyond the common law countries, this type of procedure is not well known. Thus, arbitrators are afraid that a civil law court may not recognise them as valid. Such fear is unjustified. The laws of arbitration throughout the world grant a large freedom to arbitrators in the organisation of the proceedings. Provided the parties have a reasonable opportunity to present their case in the summary procedure, there should be no particular obstacle in the decision being enforceable in civil-law countries, where long hearings are not customary. Another reason is more understandable: Arbitration is a one-shot procedure. There is no appeal on the merits as is the case with the State courts. This explains the reluctance of arbitrators to dismiss a claim on a summary basis. The claimant will have no second chance. However, this is not sufficient to exclude summary decisions from the realm of arbitration in view of their considerable advantages in terms of time and money. It just calls for great caution when deciding.

This Dossier brings very useful information on all these issues, among many others. It will help arbitrators, counsel and parties to properly address the challenge of reducing the duration and cost of arbitration proceedings.

*
Founding Partner, Derains & Gharavi, France; Former Secretary General, ICC International Court of Arbitration; Chairman, ICC Institute of World Business Law

1
« Arbitre expert dans tous les cas ».

2
Ph. Fouchard, « l’Arbitrage commercial international », p.1, footnote1