In January 2023, the International Chamber of Commerce (ICC), the Institute for Transnational Arbitration (ITA), and the Institute for Energy Law (IEL) held a joint conference titled 11th ITA-IEL-ICC Joint Conference on International Energy Arbitration-Houston.  One panel—“Back to the Future or the New Normal (No, this is not a Panel on Virtual Hearings)”—focused on the new trends in case management.  The conversation was moderated by Caroline Richard (Partner at Freshfields Bruckhaus Deringer in Washington D.C.), and the panelists were J. Brian Casey (arbitrator at Bay Street Chambers in Toronto), Pedro Jose Izquierdo (counsel at Sullivan & Cromwell LLP in New York), and Ema Vidak Gijković (independent arbitrator in New York).  The panel discussed various new trends, including sua sponte bifurcation, deviations from template procedural orders, and summary dispositions, as examples of recent changes that tribunals have increasingly adopted since the beginning of the COVID-19 pandemic.

This article will focus on one particular trend: summary dispositions.  First, the article covers the background of summary dispositions.  Second, the article identifies the existent arbitration rules on summary dispositions.  Third, the article further considers potential due process concerns arising from summary dispositions.  Fourth, the author explores practices that parties may implement to help tribunals innovate in case management.  Finally, the author concludes and offers suggestions.

Summary dispositions in international arbitration are procedures that allow parties to request arbitral tribunals to dispose of a claim or defense without a full hearing on the merits.1David Ryan and Kanaga Dharmanda, Summary Disposal in Arbitration: Still Fair or Agreed to be Fair, 35 J. Int’l Arb. 31, 32 (2018).X1  A summary disposition can take various forms, such as a motion to dismiss, summary judgment, or partial award.2Id.X2  After a party applies for a summary disposition, the tribunal may dismiss the claim if it finds it to be clearly meritless.3See e.g., ICSID Rules of Procedure For Arbitration Proceedings, Rule 41.5 (2022) [hereinafter “ICSID Arbitration Rules”].X3  However, in so doing, tribunals generally will apply a high standard, thus making it difficult for movants to succeed on their application.4See e.g., Mainstream Renewable Power and Others v. Germany,  ICSID Case No. ARB/21/26, Decision on Respondent’s Application under ICSID Arbitration Rule 41(5) (January 18, 2022), ¶ 121.X4  

As the panel discussed, there are many benefits and some drawbacks to summary dispositions.  The article will briefly list some.  On one hand, summary dispositions increase efficiency.  These procedures can save costs and time, allowing tribunals to dispose of claims or defenses that are manifestly without merit or that can be resolved based on undisputed facts or legal issues.5Martin F. Gusy, Saving Time and Cost – International Arbitration without Hearing on the Merits, 41 Zdar 36, 38 (2018).X5  In so doing, a tribunal can resolve a dispute that otherwise could have taken years to resolve in just a few months.  Additionally, the availability of summary disposition procedures  increases flexibility, which is already one of the advantages of international arbitration.6See Gary Born, Int’l Commercial Arb. § 15.01(A) (3d. 2020).X6  As the panel explained, summary disposition—just like other new case management tools—allows tribunals to adapt each procedure to the specific needs of the case.

On the other hand, summary dispositions have drawbacks.  As further discussed below, the use of summary dispositions can raise concerns about due process, particularly if they are used to dispose of claims or defenses without providing the parties with a reasonable opportunity to be heard or to present their evidence.7See Gusy, supra note 5, at 38.X7  The lack of due process can be significant given that the award could be set aside based on these concerns.8See New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, art. V(1)(b),  330 U.N.T.S. 38, 7 I.L.M. 1046 [hereinafter “New York Convention”] (“The party against whom the award is invoked … was otherwise unable to present his case.”).X8  Additionally, summary dispositions could increase costs in the long run if the tribunal does not grant the application.  Given these due process concerns, summary dispositions impose a high evidentiary threshold on the movant,9See e.g. Mainstream Renewable Power and Others, at ¶ 121 (“The standard is thus set high.”).X9 making it hard to get the application granted.  If not granted, the preparation and filing of a motion for summary disposition could incur costs additional to those that would be otherwise necessary to resolve the dispute, resulting in an increased cost of arbitration.10See Caline Moauwad and Elizabeth Silbert, A Case for Dispositive Motions in International Arbitration, 2 BCDR Int’l Arb. Rev. 77, 90 (2015) (“[T]he decision to hold hearings in these proceedings has raised the complaint that an unsuccessful Rule 41(5) procedure does nothing more than delay the case and create additional costs.”).X10 

Increasingly, international arbitration centers have explicitly included in their rules the tribunal’s power to grant dispositive motions.  However, the specific nature of the summary disposition procedures under these rules vary:

International Centre for Settlement of Investment Disputes (ICSID):  Under the Article 41(5) of the 2021 ICSID Rules, parties may file, “no later than 30 days after the constitution of the tribunal,” an application to dismiss a claim that is manifestly without merit.1ICSID Arbitration Rules, Rule 41(5).X1  “If the Tribunal decides that the dispute is not within the jurisdiction of the Centre or not within its own competence, or that all claims are manifestly without legal merit, it shall render an award to that effect.”2Id., Rule 41(6).X2  

London Court of International Arbitration (LCIA):  Article 22.1 (viii) of the LCIA Arbitration Rules gives the  tribunal the power “to determine that any claim, defence, counterclaim, cross-claim, defence to counterclaim or defence to cross-claim is manifestly outside the jurisdiction of the Arbitral Tribunal, or is inadmissible or manifestly without merit; and where appropriate to issue an order or award to that effect.”3LCIA Arbitration Rules (2020), Art. 22.1 (viii).X3  The rules refer to this as “Early Determination.”4Id.X4 

Singapore International Arbitration Centre (SIAC):   Under Rule 29 of the Arbitration of SIAC, “a party may apply to the Tribunal for the early dismissal of a claim or defence on the basis that:  (a) a claim or defence is manifestly without legal merit; or (b) a claim or defence is manifestly outside the jurisdiction of the Tribunal.”5SIAC Arbitration Rules (2016), Rule 29.1.X5  The tribunal can, “after giving the parties the opportunity to be heard, decide whether to grant, in whole or in part, the application for early dismissal under Rule 29.1.”6Id. at Rule 29.3.X6 

Hong Kong International Arbitration Centre (HKIAC):  Article 43.1 of the HKIAC 3028 Administered Arbitration Rules reads:

the arbitral tribunal shall have the power, at the request of any party and after consulting with all other parties, to decide one or more points of law or fact by way of early determination procedure, on the basis that:  

(a) such points of law or fact are manifestly without merit; or

(b) such points of law or fact are manifestly outside the arbitral tribunal’s jurisdiction; or

(c) even if such points of law or fact are submitted by another party and are assumed to be correct, no award could be rendered in favour of that party.7HKIAC Administered Arbitration Rules (2018), art. 43.1.X7 

Stockholm Chamber of Commerce (SCC):  Article 39 of the SCC Arbitration Rules states “[a] party may request that the Arbitral Tribunal decide one or more issues of fact or law by way of summary procedure, without necessarily taking every procedural step that might otherwise be adopted for the arbitration.” 8SCC Arbitration Rules (2023), art. 39.1.X8 

Summary disposition procedures in international arbitration may cause due process concerns for arbitrators because they involve disposing of a case or issue without a full hearing or trial on the merits.1Born, supra note 6, § 15.03.X1  Meaning, one or more parties may not have the opportunity to fully present their case or defend themselves.  This can raise concerns about the fairness of the proceedings and whether each party has been given a full and fair opportunity to presents their case—in other words, due process.2See James P. Duffy, Dispositive Motions and the Summary Dispositions of Claims in International Arbitration, in International Arbitration in the United States 275, 275–276 (2017).X2

This is a significant concern given that the lack of due process is one of five grounds for setting aside or vacating an award under the New York Convention.3See id. (“For many years, it has been a commonly held view that dispositive motions and interim awards that summarily dispose of claims are inappropriate in international arbitration because such motions or awards prevent the opposing party from presenting its case in violation of Article V.1 (b) of the New York Convention.”). See also New York Convention, supra note 8, at art. V(1)(b).X3  The potential for set aside or vacatur for lack of due process harms the value of the potential award.4See Gusy, supra note 5, at 38.X4  If a court in the seat of the arbitration sets the award aside on this ground, the enforcing party would be unable to take the award to any New York Convention jurisdiction.5See id.X5  Just as Casey noted during the panel, this is a very present concern to arbitrators, which they would want to avoid at all costs.

However, other panelists were less concerned.  Although a valid concern, due process should not be an issue.  As Izquierdo discussed, summary disposition procedures are not unique to international arbitration.  Other legal systems, such as those of the United States (US) and United Kingdom (UK), have similar mechanisms for disposing of cases or issues without a full hearing or trial on the merits.  In the United States, for example, Rule 12(b)(6) and  Rule 56 of the Federal Rules of Civil Procedures provide for, respectively, motions to dismiss and motions for summary judgment.6See Fed. R. Civ. Pro. 12(b)(6); see also Fed. R. Civ. Pro. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”).X6  Similarly, in the United Kingdom, Part 24 of the Civil Procedure Rules allows a party to apply for summary judgment.7See Eng. Civ. Pro. R. 24 (“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if (a) it considers that (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”).X7 

In the United State, procedures for dispositive relief have been widely accepted as useful tools that do not offend due process.8See Duffy, supra note 20, at 277 (“The U.S. judicial system has a long history of permitting dispositive motions.”).X8  In particular, courts in the United States routinely receive and consider summary disposition motions.9Joe S. Cecil et al., Trends in Summary Judgment Practice: 1975–2000, Federal Judicial Center at 20 (2007) available  at https://www.uscourts.gov/sites/default/files/summary_judgment_1975-2000.pdf (finding that in six federal district courts, movants filed summary judgment motions in 21% of the cases).X9  And even further, courts have a long line of precedent allowing domestic arbitral tribunals to decide cases on summary disposition motions.10See e.g. Ozormoor v. T-Mobile USA, Inc., 2010 WL 3272620, at *4 (E.D. Mich. Aug. 19, 2010) (affirming an arbitration decision issued on summary disposition); Glob. Int’l Reins. Co. Ltd. v. TIG Ins. Co., 2009 WL 161086, at *5 (S.D.N.Y. Jan. 21, 2009) (“[T]he Arbitrator acted well within his discretion when choosing to entertain TIG’s motion for summary judgment.”).X10  Only in rare instances have US courts not upheld an award decided in a summary proceeding.11Int’l Union, United Mine Workers of Am. v. Marrowbone Dev. Co., 232 F.3d 383, 388–40 (4th Cir. 2000) (holding that in an arbitration where there is a factual dispute, the arbitrator had exceeded its authority by denying a full and fair hearing).X11  These exceptions usually involved unfair proceedings, like the tribunal ignoring the existence of a material factual dispute.12See, e.g, id.X12     

Despite due process concerns, it is important to consider that other legal systems, in particular common-law systems, have had similar summary dispositions mechanisms for years.  These mechanisms, like in domestic courts, can be useful tools for disposing of cases or issues efficiently without violating due process rights, subject to appropriate safeguards and procedural rules.

Overall, the panelists noted that there is still a lot of uncertainty around summary disposition procedures in international arbitration.  Although there seems to be an increasing trend towards allowing more summary proceedings, there is still some reluctance from arbitrators to accept these motions.  Again, due process concerns, and perhaps arbitrator’s individual background, may be playing a role in this slow change.  But parties may adopt practices that may help to encourage this change.  Although this article does not purport to offer a solution to this complex question, it does provide some suggestions that may help to increase a party’s probability that procedures, such as summary disposition, will be adopted in their arbitrations.  In particular, there are three things that could help the tribunal be more innovative:  1) arbitration rules, 2) seat of arbitration, and 3) arbitrators selection.  The article will now explore each in that order.

A. Arbitration Rules

One way parties seeking innovation may empower their arbitrators to use summary dispositions is by adopting rules that explicitly allow tribunals to do so.  Although this seems like an obvious avenue, it is actually not that obvious.  Tribunals generally have extensive procedural powers to lead the case as they see fit,1See Born, supra note 19, § 15.08.X1 and it could be argued that this power includes allowing for summary dispositions.2Id.X2  But some arbitrators are not willing to take that risk.3Id.X3  Most arbitrators do not want to grant themselves powers that are not clearly provided by the applicable rules or laws.

To ameliorate this concern, parties wishing arbitrators to take a more innovative standpoint could adopt rules that explicitly allow for summary dispositions.  As earlier stated, many arbitration centers already allow in their rules for dispositive relief, including those of ICSID, HKIAC, SIAC, LCIA, and SCC. 4See e.g., ICSID Arbitration Rules, supra note 3, at Rule 41.5;  LCIA Arbitration Rules (2022), supra note 13, at  art. 22.1 (viii).X4  By adopting one of these centers’ rules, parties are in effect consenting to the tribunal’s power to dispose of claims in summary proceedings.  This, in turn, could make tribunals more comfortable with the idea of addressing claims in this manner.5Born, supra note 19, §15.09.X5  They would be explicitly empowered to do so and would be behaving within the boundaries of their power.

B. Seat of the Arbitration

By selecting a seat of arbitration that recognizes the availability of summary disposition in domestic civil procedures, parties can encourage arbitrators to adopt similar procedures.  The availability of summary disposition procedures in domestic courts could help to alleviate or manage arbitrator due process concerns.

As described above, summary disposition procedures are neither unique nor new; rather, these are practices routinely used in the United States and in the United Kingdom.  In fact, as already discussed, courts in these two jurisdictions have already upheld these practices in other contexts.6See e.g. Ozormoor, 2010 WL 3272620, at*4; see also Travis Coal Restructuring Holding LLC v. Essar Glob. Fund Ltd. [2014] EWHC (Comm) 2510, [42]–[54] (Eng.).X6  So, although there is still a lot of uncertainty surrounding summary dispositions, choosing a seat of arbitration that already allows this type of procedures may reduce uncertainty in the arbitration context.  For example, it is at least clearer that a US court is likely to uphold an award decided in a summary disposition.  Given existing precedents from domestic arbitrations and the general acceptance of summary proceedings by US courts, a US court is unlikely to assume that a tribunal inherently denied a party due process because it decided the case via summary disposition procedure.

Arbitrators sitting in jurisdictions like the United States or the United Kingdom could be receptive to summary proceedings because the  awards are more likely to be upheld.  This would eliminate—or at least reduce—concerns about an award’s vulnerability and could help arbitrators be more flexible about their stance towards summary proceedings.  If parties wish to be able to access case management tools such as summary dispositions, adopting a seat that already adopts summary disposition in its domestic practice would probably increase their chances of it happening.

C. Arbitrator Selection

Lastly, parties may shape their arbitration by choosing the right arbitrators.  Ultimately, parties choose arbitration because it brings flexibility, autonomy, and predictability (to an extent), and choosing the right arbitrator is a way for a party to exert all of these benefits to lead the case as the parties wish.

If parties wish to have a more innovative arbitrator on these issues, then parties must consider the arbitrator’s legal background and past dispositions.  First, parties can look at the arbitrators’ legal background.  Although not always true, arbitrators that come from jurisdictions that allow summary dispositions may be more open and comfortable with deciding cases in that manner because they learned in a systems that allows for it.  Second, parties should consider an arbitrator’s past written decisions and publications—if available.  This could be the biggest indicator of the arbitrator’s stance on summary dispositions.  If the arbitrator has heard and granted summary dispositions in the past, the arbitrator is likely open to the opportunity to do so again.  From there, parties can tailor—depending on their needs—who they would appoint.

As discussed during the panel, new case management practices may help international arbitration be more cost and time efficient.  But arbitrators alone cannot implement this change.  Parties must cooperate as well.  A good way to do that is by adopting practices that may aid arbitrators to smoothly lead the movement towards innovation.  Parties could:

1. choose arbitration rules that provide the tribunal with explicit powers to decide on summary dispositions,
2. designate the seat of the arbitration in places where courts allow for these new practices, and
3. choose arbitrators that are more likely to side with the party’s desired stance.

By combining these three, parties can push arbitrators to be more innovative.  Although these practices will likely not launch arbitration into a complete change, they could give tribunals more leeway in managing cases.