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.
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Summary dismissal gains ground: a welcome
development for financial institutions