Page 0022

22

The most recent ICSID award granting an application

for summary dismissal, issued in March 2017, was

the first time since 2010 that an ICSID tribunal

had disposed of a case in full on this basis.

This low success rate may reflect, at least in part,

a common concern that such decisions are

vulnerable to challenge for a lack of due process.

It remains to be seen whether the recent ICSID

dismissal is a harbinger of tribunals overcoming

that fear. As more institutions expressly support

summary dismissal, we expect tribunals will

become more willing to dismiss claims or defences

early when justified in doing so.

We also expect that this growing trend among

arbitral institutions to promote the dismissal of

unmeritorious claims at an early stage will make

arbitration a more appealing alternative in sectors

where litigation traditionally has been favoured.

This is particularly true in the financial services

industry, where institutions have been hesitant

to use arbitration.

According to a November 2016 report by the ICC

Commission on which we have previously reported,

one of the key drawbacks of arbitration that

financial institutions identified was the perceived

inability to obtain summary dismissal of

unmeritorious claims or defences (as compared to,

for example, the availability of motions to dismiss

or to strike out in the courts of New York or London).

We have already seen evidence of increased use

of arbitration by financial institutions in recent

years: approximately 20 per cent of the cases filed

with the ICC in 2016 related to the finance and

insurance sector, up from 9.1 per cent in 2010.

In 2017, we represented a number of clients in the

financial services industry in both commercial

and investor-state arbitration proceedings under

various procedural rules, pointing to a trend for

2018 of increasing use of arbitration in this sector.

The expanding availability of summary dismissal

proceedings will only enhance that trend.

Summary dismissal gains ground: a welcome

development for financial institutions

9

We have already seen

evidence of increased use

of arbitration by financial

institutions in recent years.

Cases filed with the

ICC relating to the finance

and insurance sector

9% 20%

2010 2016

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