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The ability to defeat meritless claims at an early stage of arbitral proceedings may

attract more financial institutions to international arbitration.

Following the adoption of summary dismissal

procedures by the Singapore International

Arbitration Centre (SIAC) and the Stockholm

Chamber of Commerce (SCC), other institutions

have clarified the availability of summary dismissal

under existing rules or begun to study the

issue. We expect this trend to continue in 2018,

as more institutions address the availability

of summary dismissal.

In October 2017, the International Chamber of

Commerce (ICC) published an update to its practice

note on the conduct of arbitration, affirming that

applications for the 'expeditious determination

of manifestly unmeritorious claims or defences'

may be dealt with under the tribunal's broad case

management powers pursuant to Article 22 of the

ICC Rules. This clarifies that the 2017 ICC Rules

of Arbitration, despite not containing any specific

summary dismissal provisions, allow for summary

dismissal. In terms closely following SIAC Rule 29,

the ICC guidance states that a party may apply for

the expeditious determination of claims or defences

on grounds that such claims or defences are

'manifestly devoid of merit or fall manifestly

outside the arbitral tribunal's jurisdiction'.

Meanwhile, the Hong Kong International Arbitration

Centre (HKIAC) is considering whether to introduce

express provisions in its rules to allow preliminary

determinations of factual or legal issues.

We expect other arbitral institutions will take

similar steps in this regard, either by amending

their rules or clarifying them as the ICC has.

It will be interesting to see how tribunals will

apply these tools to enhance the efficiency and

effectiveness of arbitration proceedings.

While no statistics are yet available on the use

of SIAC's or SCC's new rules, the International

Centre for Settlement of Investment Disputes (ICSID),

the first major international arbitration institution

to adopt a summary dismissal provision, saw that

provision invoked 26 times from 2006 to 2016.

However, such applications succeeded (in whole

or in part) in only six cases.

Nicholas Lingard

Partner

T +65 6908 0796

E nicholas.lingard@freshfields.com

Joaquin Terceño

Counsel

T +81 3 3584 8475

E joaquin.terceno@freshfields.com

Summary dismissal gains ground: a welcome

development for financial institutions

9

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