Would A Summary Procedure Improve The Arbitral Process?

Author:Mr Peter Hirst
Profession:Clyde & Co

With high cost and inefficiency top of the list of party concerns about the arbitral process, institutions, arbitrators, practitioners and indeed legislators are keen to find ways to address those concerns. One proposed solution is the availability of a summary procedure to 'cut through' elements of the arbitration process saving both time and money. This is of particular interest where, for example, arbitration involves an element of debt recovery or where sham defences may be used tactically to prolong an unmeritorious dispute.

Summary procedures in litigation

Summary procedure, namely summary judgment, is a key part of the litigation process, and, as such has a proven track record of working as a dispute resolution tool. In the English Courts, under the Civil Procedure Rules (CPR 24), summary judgment is available where:

the court considers the claimant has no real prospect of succeeding on, or the defendant has no real prospect of successfully defending, the claim or issue; and there is no other compelling reason why the case or issue should be dealt with at trial. Summary judgment can be granted on part of a claim and will only be granted in the 'clearest case' or in a 'plain and obvious case' (S v Gloucestershire CC, Esprit v Fashion Gossip). The court's decision will usually be made on the basis of witness and other evidence provided with the application and defence to the application. While a hearing will often take place, applications for summary judgment should be so 'clear cut' that the formalities of running a full case to trial are unnecessary. There is a body of case law for parties to rely on when making or defending such an application.

So, could arbitration follow the court's lead and use a summary procedure to resolve all or part of a dispute?

SCC summary procedure

The Stockholm Chamber of Commerce's (SCC) revised arbitration rules (in force 1 January 2017) introduce a summary procedure.

Under Article 39, a party may request that the tribunal decide one or more issues of fact or law by way of summary procedure without necessarily undertaking every procedural step that might otherwise be adopted for the arbitration. The request may for example include that:

an allegation of fact or law material to the outcome of the case is manifestly unsustainable; even if the facts alleged by the other party are assumed to be true, no award could be rendered in favour of that party under the applicable law; and any issue of fact or...

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