Summary Disposition Procedures in International Arbitration
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Although efficiency in dispute resolution in terms of time and cost used to be the strength of international arbitration, both time and cost involved with international arbitration have increasingly become the biggest complaints over time. In the U.S., the majority of civil cases gets resolved before they get to the trial stage due to summary disposition of matters based on dispositive pretrial motions, mainly motions to dismiss and motions for summary judgment. However, summary disposition procedures have not been widely adopted in the international arbitration community for reasons that arbitral tribunals have no authority to entertain such procedures and doing so may raise due process issues which would undermine the enforceability of the resulting arbitral awards. This article examines these reasons in detail as well as the summary disposition procedures in the U.S. civil proceedings in light of current state of summary disposition procedures in international arbitration and recommends that procedures similar to motions to dismiss under the U.S. Federal Rules of Civil Procedure, early dismissal pursuant to the SIAC Rule 29, which was recently adopted by the Singapore International Arbitration Centre, or the preliminary objection under the International Centre for Settlement of Investment Disputes Arbitration Rule 41(5) get widely adopted by arbitral institutions and extensively used in the early stages of the arbitral process in order to enhance the efficiency of international arbitration proceedings. The enforceability of summary disposition awards pursuant to such procedures would not be challenged for violation of due process as providing each party an opportunity to present its side before ruling on the summary disposition request would guarantee the parties’ rights to be heard in a fundamentally fair arbitral process.
Abstract
Although efficiency in dispute resolution in terms of time and cost used to be the strength of international arbitration, both time and cost involved with international arbitration have increasingly become the biggest complaints over time. In the U.S., the majority of civil cases gets resolved before they get to the trial stage due to summary disposition of matters based on dispositive pretrial motions, mainly motions to dismiss and motions for summary judgment. However, summary disposition procedures have not been widely adopted in the international arbitration community for reasons that arbitral tribunals have no authority to entertain such procedures and doing so may raise due process issues which would undermine the enforceability of the resulting arbitral awards. This article examines these reasons in detail as well as the summary disposition procedures in the U.S. civil proceedings in light of current state of summary disposition procedures in international arbitration and recommends that procedures similar to motions to dismiss under the U.S. Federal Rules of Civil Procedure, early dismissal pursuant to the SIAC Rule 29, which was recently adopted by the Singapore International Arbitration Centre, or the preliminary objection under the International Centre for Settlement of Investment Disputes Arbitration Rule 41(5) get widely adopted by arbitral institutions and extensively used in the early stages of the arbitral process in order to enhance the efficiency of international arbitration proceedings. The enforceability of summary disposition awards pursuant to such procedures would not be challenged for violation of due process as providing each party an opportunity to present its side before ruling on the summary disposition request would guarantee the parties’ rights to be heard in a fundamentally fair arbitral process.
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