Author: Joséphine Hage Chahine[efn_note] Registered lawyer at the Paris and the Beirut Bars, specialised in international arbitration; Doctor of laws.[/efn_note]
In recent years, users and practitioners of international arbitration have raised criticism as regards the length of the arbitration proceedings. Insofar as businesses strive for efficiency[efn_note] Klaus Peter Berger, ‘The Need for Speed in International Arbitration’, Journal of International Arbitration, Kluwer Law International 2008, Volume25, Issue 5, pp. 595-612.[/efn_note], several national arbitration acts and institutional arbitration rules have provided for fast track arbitration (also known as expedited arbitration).
The Geneva chamber of commerce and industry was the first arbitral institution to introduce rules for expedited procedures in its arbitration rules of 1992[efn_note] Matthias Scherer, ‘Acceleration of Arbitration Proceedings – The Swiss Way: The Expedited Procedure under the Swiss Rules of International Arbitration’, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ | German Arbitration Journal, Kluwer Law International; Verlag C.H.Beck oHG 2005, Volume 3 Issue 5, pp. 229-238.[/efn_note], and in 2017, the international chamber of commerce introduced an expedited procedure in its arbitration rules[efn_note] Michael Bühler and Pierre Heitzmann, ‘The 2017 ICC Expedited Rules: From Softball to Hardball?’, Journal of International Arbitration, Kluwer Law International 2017, Volume 34, Issue 2, pp. 121-148.[/efn_note].
Fast track arbitration can be defined as a full arbitration process compressed into a shorter period for a quicker resolution of the dispute [efn_note] Yas Banifatemi, ‘Chapter 1: Expedited Proceedings in International Arbitration’, in Laurent Lévy and Michael Polkinghorne (eds), Expedited Procedures in International Arbitration, Dossiers of the ICC Institute of World Business Law, Volume 16, Kluwer Law International; International Chamber of Commerce, 2017, p.10.[/efn_note].
The conditions for the application of a fast-track arbitration vary in each jurisdiction and arbitral institution but have notably in common to apply when the amount in dispute does not exceed a certain threshold[efn_note] USD 2,000,000 according to Annex VI of the ICC Rules; CHF 1,000,000 according to Article 42.2 of the Swiss Rules; SGD 6,000,000 according to Article 5.1 of the SIAC Rules; HKD 25,000,000 according to Article 41.1 of the HKIAC Rules. [/efn_note].
Parties can also “opt-in”[efn_note] Parties can choose a fast track procedure even though the requirements of such procedure are not met.[/efn_note] or “opt-out”[efn_note] Parties can expressly exclude the application of a fast track procedure even though the requirements of such procedures are met.[/efn_note] of this procedure and a fallback provision[efn_note] Under such provision, it is possible to revert to standard arbitration, after having initiated a fast track arbitration in case there is an increase of the complexity of the case or the amount in dispute, if the parties so wish, or if any other circumstances so justify.[/efn_note] is often provided for in most national arbitration acts and arbitration rules.
Fast track arbitration should be distinguished from emergency arbitration[efn_note] Article 39 of the SCC Rules; Article 29 of the SIAC Rules, Appendix V of the ICC Rules.[/efn_note], which is also a compressed procedure allowing a party to apply for urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal. Such measures, and contrary to an award issued under a fast track arbitration, does not have a res judicata effect[efn_note] According to this principle, the same parties cannot pursue the same dispute on the same grounds before another authority, insofar as the award rendered by the arbitral tribunal has settled the dispute definitively.[/efn_note].
The key characteristics of a fast track arbitration are as follows:
- A mandatory appointment of a sole arbitrator when the arbitration institution considers it more fit, that overrides the parties’ will to appoint a panel of three (or more) arbitrators;
- Optional drafting of terms of reference by the arbitrator;
- Shortened procedural calendar (to file submissions and to render a final award);
- Possibility not to allow requests for document production and to limit the number, length, and scope of written submissions and written witness evidence (both fact witnesses and experts);
- Possibility to dispense with the hearing (i.e. without examination of witnesses or experts) and to settle the case, solely based on written materials and submissions;
- Possibility, when a hearing is to be held, to conduct it by videoconference, telephone or similar means of communication;
- Rendering a summary award.
Fast track arbitration could be appropriate to settle construction disputes in which the need to resume the project requires a quick resolution of disputes. It could also be appropriate to settle disputes arising out of transactions involving simple legal questions and no issues of fact that require complex expert reports, such as sale and purchase agreements.
If a fast track procedure undoubtedly helps increase the time and cost-efficiency of arbitration, and as such renders it more attractive, it may be argued, at first sight, that such procedure might threaten the award through annulment proceedings or hinder its efficiency through a refusal to recognize and enforce it by the competent jurisdictions[efn_note] Mohamad Salahudine Abdel Wahab, ‘Chapter 6: Expedited Institutional Arbitral Proceedings Between Autonomy and Regulation’, in Laurent Lévy and Michael Polkinghorne (eds), Expedited Procedures in International Arbitration, Dossiers of the ICC Institute of World Business Law, Volume 16, Kluwer Law, International, International Chamber of Commerce, 2017, pp. 133-157.[/efn_note].
More precisely, the fact that the appointment of a sole arbitrator overrides the parties’ will to appoint a panel of three (or more) arbitrators could be seen as a violation of the general principle of party autonomy, and therefore give rise to a challenge of the award on the basis that the tribunal has not been constituted according to the parties’ will[efn_note] An annulment ground provided for under many arbitration acts, such as article 1520 of the French code of civil procedure; Article 190 of the Swiss LDIP.[/efn_note].
In addition, the manner in which arbitrators conduct the arbitral proceedings with regards to shortened time limits, the possibility to refuse document production requests and to decide only on a document-basis, may compel the parties to present their case within certain constraints which may then provide grounds for a losing party to seek to set aside the award based on a lack of due process.
In the same vein, these same grounds (i.e. breach of party autonomy and lack of due process) can also lead to denying the recognition and enforcement of the award on the grounds of Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
However, it can be argued that (i) when the fast track procedure is provided for in national arbitration acts, parties cannot escape the binding force of the law and cannot, hence, prevail from a breach of their will or of their right to due process and (ii) when the fast track procedure is provided for in arbitration rules, parties would have agreed to be bound by such rules (and notably by the provisions restraining party autonomy and framing the right to due process with some constraints) by voluntarily selecting specific institutional rules to govern the arbitration process[efn_note] Sylvain Bollée, La volonté contractuelle dans les nouvelles dispositions du règlement d’arbitrage CCI sur la procédure accélérée, Revue des Contrats, n° 2, p. 296.Revue des contrats – n°02 – page 296[/efn_note].
To sum up, fast track arbitration is a time and cost-efficient procedure that could flourish notably in the construction and trade industries without, in principle, hindering the viability and/or the enforceability of the award.