As a result of these considerations, it is necessary in every arbitration proceeding to strike a balance between granting legitimate requests for document production in order to preserve the right to be heard, and rejecting illegitimate or disproportionate requests in order to conduct the proceedings efficiently. To achieve this goal, the following proposals are submitted. 626

First, a complete exclusion of some form of document production seems neither justified nor beneficial.**994** There may be cases where (some) document production may be necessary for a party to prove its case. Therefore, proposals to ban document production altogether in arbitration in the interest of efficiency, while well-intended, seem too extreme. 627

Second, it is proposed to follow a rather narrow understanding of what constitutes a permissible request for document production.**995** The civil law understanding, as highlighted earlier, requires a materiality of the document to the outcome, lest the request may qualify as an impermissible fishing expedition.**996** Similarly, the Swiss Federal Tribunal requires a materiality of a document to the outcome of the proceedings.**997** Although the common law understanding also requires some relevance of the document, the materiality threshold is lower.**998** Therefore, at least for proceedings seated in Switzerland,**999** raising the bar for the materiality of a document seems justified, which means that the document has to be material to the outcome of the case.**1000** 628

Critics of this proposal may argue that this approach merely repeats the wording of art. 3.3 IBA Rules on the Taking of Evidence,**1001** rules that have not helped curb the detrimental effects of document production. Yet, it is disputed whether the IBA Rules follow a stricter civil law (as advocated here) or a more 629

1001 *'A Request to Produce shall contain: […] (b) a statement as to how the Documents requested are relevant to the case and material to its outcome'.*

permissive common law approach towards document production.**1002** Furthermore, it has been said that tribunals frequently allow for an extensive discovery process.**1003** Hence, taking a restrictive approach as proposed here may indeed increase the efficiency of the proceedings.

630

Third, while the extent of the document-production process depends on the number of requests by the parties, the tribunal can proactively help reduce the number of requested documents in the first place. The tribunal can achieve this goal by identifying the issues it considers decisive early on in the process. Furthermore, the tribunal should make use of the opportunity to give the parties a preliminary and non-binding assessment of the case.**1004** This may indicate to the parties the instances where document-production requests may not be of any use.

631

Fourth, a request for document production should be viewed in the wider context of the whole proceeding. Particularly, the tribunal must determine if the parties have a sufficient possibility to make their case even without the request.**1005** This may not be the case if other restrictions on the taking of evidence exist, for example a decision not to hold an oral hearing.

#### **4. Evaluation**

1007 Queen Mary Study 2021, 13–14.

rights. In particular, an early assessment of which issues may be relevant, along with preliminary assessments of issues, may help make the parties' requests more focused. This of course does not prevent abusive requests whose purpose is to prolong the proceedings. However, as established earlier, the tribunal is under no obligation to entertain any such requests.**1008**

## **V. Documents-Only Arbitration and Hearing**

A particularly interesting feature of expedited procedures is the possibility of excluding holding hearings altogether or at least limiting their duration and significance. The result of such an exclusion of oral proceedings is that documents will have a greater weight as means of evidence. This topic therefore deserves a thorough examination. 634

#### **1. Overview**

#### **1.1 Expedited Procedures**

Most expedited rules contain provisions limiting the holding of oral hearings. As a default rule, they either provide for a documents-only arbitration or at least limit the number of oral hearings to one single hearing. 635

The details differ considerably between the rules. Under the HKIAC, ICC, and SIAC Expedited Rules, the decision whether or not to hold a hearing is within the tribunal's discretion.**1009** Similarly, the SCC Rules require a request by a party as well as a positive decision by the tribunal on the existence of compelling reasons for holding a hearing.**1010** On the other side of the spectrum are the DIS and the Swiss Rules, which require the holding of a single hearing unless agreed otherwise by the parties.**1011** A special approach can be found in the ICDR Rules and the AIAC Fast-Track Rules, which require a hearing if the amount in dispute is above a certain monetary threshold.**1012** The WIPO Expedited Rules represent a middle ground by requiring a hearing at the request of a party or if the tribunal so decides.**1013** 636

1013 Article 49(a) WIPO Rules.

#### **1.2 Comparison with Ordinary Procedures**

Under ordinary procedures, holding a hearing is the norm.**1014** Yet some rules leave it to the tribunal's discretion as to whether it wants to hold a hearing. This discretion, however, is subject to a request by a party for a hearing, in which case a hearing must (usually) be held.**1015** 637

#### **2. Right to be Heard**

1015 See for example art. 32 SCC Rules.

1016 Berger/Kellerhals, para. 1147; Girsberger/Voser, para. 925; decisions Swiss Federal Tribunal no. 4A\_404/2010 of 19 April 2011 c. 5; no. 4A\_220/2007 of 21 September 2007 c. 8.1; no. 4A\_160/2007 of 28 August 2007 c. 4.1; critical, however, BSK IPRG-Schneider/ Scherer, art. 182 para. 96.

1017 See above para. 289.

1018 Waincymer, 913, 966–967.

#### 1019 *Ibid*, 898.

1020 See in detail *ibid*, 954–957.

1014 See for example only art. 35.2 CIETAC Rules; art. 29 DIS Rules; art. 26 ICDR Rules; art. 24.1 SIAC Rules; art. 27.1 Swiss Rules; more restrictively, however, art. 25.5 ICC Rules; cf. further Feris, 72.

this kind of cross-examination is not possible, the value of such testimony may be reduced.**1021** Nevertheless, it has been questioned as to whether witness testimony is of decisive value, irrespective of whether cross-examination has taken place. While it is beyond the scope of the present discussion to answer this question, practical experience shows that documents are often of considerable evidentiary value,**1022** although practical experience has also shown that especially some arbitrators with a common law background may attach greater significance to witness testimony than to documentary evidence.

As a last point, it is important to emphasise that the right to be heard is relevant not only for the right to make submissions on the other party's evidence, but also for the right to make oral statements in general before the tribunal. However, it is well established in Swiss law that the parties' right to be heard is not violated by them not having a possibility to make oral statements before the tribunal.**1023** Therefore, in this context, documents-only arbitrations are unproblematic. 641

#### **3. Considerations for Holding a Hearing under Expedited Procedures**

**3.1 Increased Efficiency**

Holding a hearing may incur high costs because of the need to organise and rent a venue, as well as the need for numerous people to attend the event, which may last for several days.**1024** In addition, it may be difficult for the arbitrators, parties, counsel, and witnesses to find a time slot that is suitable for everyone. Thus, not holding a hearing may significantly reduce the time and costs of a proceeding.**1025** 642

#### **3.2 Beneficiaries of a Hearing**

It goes without saying that the holding of a hearing may be in the interest of the parties. Specifically, it allows them to exercise their right to be heard. Furthermore, a repeated observation in practice by arbitrators (and by judges in state court proceedings) is that a hearing allows them to better understand the case 643

in its entirety or, at the very least, provides the decisive impulses to form an opinion on positions that had been undecided up to that point.**1026** Moreover, a hearing may enable the arbitrators to get a better understanding of the value of the submitted evidence. For example, if a witness at the hearing withstands a vigorous cross-examination, the tribunal may be more inclined to assume the correctness of the facts that the witness asserted.**1027**

644

Therefore, a tribunal may decide to hold a hearing notwithstanding the parties' preference for a documents-only arbitration. Where the rules expressly allow the tribunal to do so, this decision is not problematic. Yet, even if the rules do not expressly grant this competence to the tribunal, this kind of decision would not lead to a setting aside of the award under Swiss law because the decision does not restrict the parties' due process rights.**1028**

#### **3.3 Relevant Factors and Proposed Solutions**

When discussing with the parties whether to hold a hearing or not, in the absence of a party agreement the decisive factor is whether the parties submit written witness statements or expert reports, whose credibility can (and needs) to be examined at an oral hearing. For some disputes, neither written statements by witnesses nor their subsequent oral examination seem necessary. For example, in the commodity industry, where expedited procedures are a popular option,**1029** disputes on quality in particular often do not require a detailed examination of witnesses. Instead, an examination of quality by the arbitrator or an independent expert in combination with an analysis of the underlying contracts may be sufficient.**1030** In addition, highly technical legal issues often do not require witnesses of fact.**1031**

Even if written statements by witnesses or expert reports exist, the tribunal may propose alternatives to holding a hearing. For example, it can grant the parties a possibility to specifically comment in writing on the witness statements and the expert report. This procedure, however, may not necessarily test the (expert) witnesses' credibility. In addition, a tribunal may justifiably select the amount of evidence it deems relevant based on an anticipated assessment of evidence.**1032** If the tribunal rightly anticipates that the further evidence presented by the party will not be sufficient to prove the alleged facts, or that a fact is already proven to the effect that additional evidence will not have any further effect, the tribunal does not need to consider any further evidence on a particular issue.**1033** Hence, if a tribunal considers that oral evidence will not make any difference, it may justifiably dispense with an oral hearing. 647

When a hearing is to be held, the tribunal should endeavour to limit the length of the hearing to the maximum extent possible. The tribunal and the parties can take a series of steps to reduce the costs and time associated with a hearing without compromising its quality. In terms of organisation, for example, it would be worthwhile to consider holding a virtual (remote) hearing instead of a physical one.**1034** Moreover, the tribunal should contemplate limiting or even eliminating some procedural steps altogether in order to increase the efficiency of the proceedings. It should for example be considered whether or not extensive opening or closing statements are necessary and whether the number of witnesses, or at the very least the issues on which they are crossexamined, may be limited.**1035** 648

Preferably, a hearing should last one day, although occasionally it might be necessary to extend its duration. In addition, the tribunal should, over the course of the proceedings, hold only one hearing. Whereas some rules expressly set forth this limitation,**1036** this proposal should also serve as guidance under other rules. 649

#### **3.4 Post-Hearing Briefs**

When the tribunal decides to hold a hearing, further questions that arise are whether the tribunal shall allow post-hearing briefs and, if so, in which form. 650

These questions are directly linked to the parties' right to be heard. Posthearing briefs must be distinguished from closing submissions. While the 651

latter are general submissions on the case as a whole, post-hearing briefs are meant to grant the parties the opportunity to comment on the evidence taken during the hearing.**1037** As such, they fulfil an important role in the exercise of the parties' right to be heard and have become standard practice in international arbitration**1038**. In addition, and as for the hearing itself, the function of a post-hearing brief may not be confined to the mere exercise of due process rights by the parties. Instead, post-hearing briefs may also help focus on the relevant issues if the hearing had the potential for a lot of side-tracking from the relevant issues.**1039** Granted, the potential for this is smaller with short hearings, but focusing on the most important points may be beneficial for the rendering of the award.

652

Although the Swiss Federal Tribunal has decided on the (non-)violation of the right to be heard in the context of whether or not to hold a hearing,**1040** it appears the court has never in fact had to rule on whether post-hearing briefs are a vital aspect of the parties' due process rights. Some authors consider these briefs occasionally necessary for safeguarding the parties' due process rights (though not specifically under Swiss law).**1041** However, it appears that such briefs are not significant to the point that disallowing them would regularly amount to a violation of due process. Skilled arbitrators should be able to determine the credibility of a witness after having experienced their examination.

1040 See above para. 638.

1037 ICC, Effective Management of Arbitration, 59.

1038 Born, International Commercial Arbitration, 2468; Blackaby/Partasides/Redfern/ Hunter, para. 6.201.

1039 Cf. for everything ICC, Effective Management of Arbitration, 60.

1041 Caron/Caplan, 494.

1042 For everything Claxton, 162; Habegger, 134; ICC, Effective Management of Arbitration, 59–60; ICC, Techniques for Controlling Time and Costs 2018, para. 81.

1043 See for example art. 45.9.4 VIAC Rules.

well needs to be decided based on an interpretation of the respective rules. When the parties and the tribunal agree on the limitation, the tribunal needs to discuss with the parties whether an *agreed* limitation on the number of submissions (for example in the procedural timetable) also covers post-hearing briefs.

#### **4. Evaluation**

Conducting an arbitration on a documents-only basis may be a promising method for increasing the efficiency of arbitral proceedings without compromising the quality of the proceedings and the award. Disputes where the parties primarily or even exclusively rely on documentary evidence are particularly suitable for such an approach. 655

In other disputes, a tribunal should discuss the advantages and disadvantages of holding a hearing. Ideally, the tribunal can convince the parties of foregoing a hearing and may offer them alternatives. However, this is not to say that a hearing should be avoided at all costs. Instead, holding one may be of special relevance when difficult and often technical issues of fact need to be understood. A hearing may be the appropriate opportunity to clarify the open questions surrounding such issues. This ultimately helps the tribunal render a correct award faster. Hence, automatically rejecting hearings may result in 'rough justice'**1044** for some disputes. 656

Admittedly, the decision *not* to hold a hearing may appear like a drastic deviation from ordinary proceedings and may even take the parties aback. However, this possibility also exists under ordinary proceedings (at least absent a party's request for a hearing).**1045** Furthermore, while the arbitrators do not have a duty to pander to a certain sentiment or desired emotional experience, they do have a duty to conduct the proceedings efficiently.**1046** 657

## **VI. Conclusion and Overall Evaluation**

As this analysis revealed, expedited procedures need to reconcile potential restrictions to the parties' due process rights with the need to conduct the arbitral proceedings efficiently. Depending on the feature that is used to limit the parties' due process rights, this task is more or less delicate. 658

```
1044 See already in the context of document production above para. 624.
```

```
1045 See above para. 637.
```
1046 See above paras. 225–231.

Interestingly, under ordinary procedures a tribunal often has instructions on what it should or at least may do: it should give the parties x opportunities to make submissions,**1047** it may order document production,**1048** and it should (usually) hold a hearing.**1049** Under expedited procedures, at least for certain aspects, the situation is the opposite: the arbitral rules give the tribunal instructions on what it should not necessarily do. It should not give the parties unrestricted opportunities for submissions, it should not allow document production, nor should it necessarily hold a hearing.**1050** Whether and how these restrictions are in conformity with the parties' due process rights depends on the circumstances and the specific procedural aspect in question. This cannot be evaluated in isolation but depends on all the circumstances of the case, including the number of opportunities that the parties had to make themselves heard in the proceedings. 659

# **Chapter 11 Excursus: Early Determination Procedures**

Early determination procedures may at first glance bear some resemblance to expedited procedures but need to be distinguished from them.**1051** Both instruments have been said to reduce the time and cost of proceedings.**1052** Like expedited procedures, early determination proceedings have attracted growing attention in international arbitration in recent years, ultimately leading to amendments to institutional rules. While the specific content and wording of these amendments vary, these new provisions share certain characteristics that will be looked at in greater detail in the following section. These new provisions have not been without controversy and, to date, still pose a number of unresolved problems. This excursus will address these problems in order to help distinguish early determination procedures from expedited procedures, as well as evaluate the potential benefits and challenges of early determination procedures. 660

1052 Mouawad/Silbert, 78; Raviv, 494–497; Tibell, 91.

After clarifying the terminology (below section I), the origins of the concept of early determination procedures in litigation will be presented (below section II) before turning to the concept and its forms in arbitration (below section III). This is followed by an analysis of the scope of application (below section IV), the competence to adopt early determination procedures (below section V), the standard for granting an application for early determination procedures (below section VI), the specific procedure (below section VII), as well as the possible types of decisions under early determination procedures (below section VIII). The whole feature will be evaluated in the conclusion (below section IX). 661

# **I. Terminological Differences**

Before turning to a detailed discussion of early determination procedures in arbitration, it is important to define what the term encompasses and what its limits are because several authorities use different terms for the instruments discussed in this chapter. Early determination procedures in arbitration, as understood in this thesis, is a collective term that refers to summary judgments as well as to striking out and motions to dismiss.**1053** Instead of the term early determination procedure, other authors use the term summary procedure or dispositive motions.**1054** 662

# **II. Origins in Litigation**

Summary judgment and striking-out procedures and motions to dismiss are instruments originating from the common law tradition. The purpose of these instruments is to avoid a full litigation process in situations where such a process would be superfluous due to the clarity of the case.**1055** The clarity may result from either factual or legal grounds.**1056** 663

The idea to use such procedures for efficiency gains is anything from farfetched, as history shows: in particular, summary judgment procedures in modern civil procedure codes trace their origin to the concern that litigation proceedings in the past were too slow and inefficient. One answer to this 664

```
1056 Andrews, paras. 10.70, 10.86.
```
concern was the introduction of summary procedures that themselves date back to the merchant courts of the Middle Ages. These courts existed for the specific purpose of providing efficient legal protection to merchants. Yet at the same time, it was necessary to strike a balance between the remarkable efficiency of merchant courts that was already known in medieval times and due process.**1057**

665

The following analysis will therefore start with an overview of the concepts of summary judgment, striking out, and motions to dismiss in litigation proceedings. It will be limited to the UK and the US, as a further analysis of other countries with provisions that are at least partially similar, such as Hong Kong**1058** and Singapore,**1059** would go beyond the scope of this overview. Moreover, an analysis of litigation instruments that are potentially recommendable in arbitration would be incomplete without taking into account tools from civil law jurisdictions. In particular, the summary procedure in clear cases in Switzerland deserves a closer examination as well.**1060**

#### **1. England: Summary Judgment and Striking Out**

The English CPR contain two specific instruments that are intended to increase the efficiency and accelerate the speed of litigation proceedings in cases where a full trial would be unnecessary. 666

#### **1.1 Summary Judgment**

The first instrument is the summary judgment as set forth in part 24 CPR. If a court grants a summary judgment, it will render a judgment by means of a summary proceeding in situations where a full trial is not necessary.**1061** According to part 24.2 CPR, the court may give such summary judgment on the whole of a claim or on a particular issue if the court considers that a claimant has no real prospect of succeeding on the claim or issue; or that a defendant has no real prospect of successfully defending the claim or issue; *and* that there is no other reason why the case or issue should be disposed of at a trial. As the provision highlights, a summary judgment is applicable to claims, defences, and issues. Furthermore, the claimant as well as the respondent may apply for it. 667

The prerequisites show that a summary judgment is aimed at situations in which the opposing party does not intend to defend itself in a serious manner but primarily tries to obstruct and prolong the proceedings.**1062** The crucial factor, and thereby the threshold that must be met, is the proof that there is no case with a real prospect of success.**1063** 668

The benefit of a summary judgment is in its shortened procedure: instead of going through a complete litigation procedure where evidence will be taken, the court schedules a hearing where it will decide on whether to enter into a summary judgment.**1064** In this shortened procedure lies the potentially considerable benefit of a summary judgment procedure. Yet, this procedure does not lead to an accelerated procedure at the complete expense of any taking of evidence. Rather, at the summary judgment hearing written evidence, including witness statements, is permitted.**1065** Therefore, while there may be some restrictions on the permissible and available evidence as opposed to an 'ordinary' procedure, the party facing an application for summary judgment may still present some evidence in favour of its position. 669

#### **1.2 Striking Out**

The second instrument that is noteworthy with regard to accelerated proceedings is a striking out pursuant to rule 3.4(2) CPR. Based on this provision, the court may strike out a statement of case if it appears to the court that the statement of case either discloses no reasonable grounds for bringing or defending the claim; or that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or that there has been a failure to comply with a rule, practice direction, or court order. 670

As these different grounds for striking out reveal, only the first ground leads to a material assessment of a party's position. Meanwhile, the second and third grounds result in a dismissal of a party's position as a sanction for a party's misbehaviour.**1066** The mechanism of striking out, based on the first ground, is founded in the assumption that the facts pled by the party against whom such motion is sought are true, and that despite this assumption, the case should be dismissed because of a lack of a valid claim to be determined. 671

1066 Landbrecht, Teil-Sachentscheidungen, 166.

This differs from the summary judgments where no such presumption exists but rather the facts need to be proven.**1067**

Like a summary judgment, a striking out of a statement of case results in the superfluity of a trial. Yet these two instruments must not be conflated. Unlike a summary judgment procedure, a striking out does not lead a judgment on the issue. Rather, a striking out leads to a removal of certain or all parts of the issues to be determined by the court from the proceedings.**1068** 672

#### **2. United States of America: Summary Judgment and Motion to Dismiss**

In US federal civil procedure, two instruments that are similar to the ones of English civil procedure can be found; however, their procedural design differs in detail from their UK counterparts. These are the motion for summary judgment according rule 56 FRCP and the motion to dismiss based on rule 12(b) (6) FRCP. 673

#### **2.1 Summary Judgment**

A summary judgment according to the FRCP is a tool that avoids a jury trial,**1069** an idea that moves it close to a summary judgment under the CPR.**1070** As a justification for shortening the process, a prerequisite for granting an application for summary judgment is that the applicant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.**1071** If the applicant succeeds in demonstrating a lack of genuine dispute as to any material fact, there is no need to conduct a trial where the facts are established.**1072** Since the idea of a summary judgment is to determine whether or not disputed issues exist for which a trial would be necessary, the admissible evidence required for determining whether to enter summary judgment must correspond to the evidence that would be admissible at trial.**1073** Thus, in principle, the parties' right to present evidence is not affected. As an exception, in order to preserve the summary procedure of the process, 674

1067 For everything Chong/Primrose, 78; Partasides/Prewett, 112, fn. 11; Tibell, 72.

1068 For everything Landbrecht, Teil-Sachentscheidungen, 166, fn. 35.

1069 Glannon/Perlman/Raven-Hansen, 1014.

1070 Caher/Lim, paras. 5–7.

1071 Rule 56(a) FRCP; cf. further Glannon/Perlman/Raven-Hansen, 1014.

1072 Friedenthal/Miller/Sexton/Hershkoff, 656.

1073 Rule 56(c)(1) FRCP; Glannon/Perlman/Raven-Hansen, 1021.

affidavits and written witness statements replace the direct and cross-examination of witnesses in a trial.**1074**

#### **2.2 Motion to Dismiss**

Similarly to the striking out applicable in the UK, rule 12(b)(6) FRCP provides for a so-called motion to dismiss.**1075** According to this provision, as a defence to a complaint, a party may by motion assert a failure to state a claim upon which relief can be granted. Such a motion will be granted if the complaint does not sufficiently allege facts in order to establish that the defendant could be held legally liable even in case all the facts asserted in the complaint were true.**1076** Hence, rule 12(b)(6) motions, as opposed to a summary judgment under rule 56 FRCP, do not include a review of the evidence.**1077** 675

#### **3. Switzerland: Legal Protection in Clear Cases**

The Swiss CPC provides for a summary procedure in arts. 248–270 for cases of increased urgency. A characteristic of this kind of procedure is an accelerated process due to shortened deadlines, simplified procedural steps, and a limitation of claims, defences, and admissible evidence.**1078** In principle, only written evidence in the form of physical records is permissible.**1079** Other evidence is admissible only if the taking of evidence does not substantially delay the proceedings; if it is required by the purpose of the proceedings; or if the court must establish the facts *ex officio.***1080** Furthermore, the court may decide not to hold a hearing.**1081** 676

Within the summary procedure, a party may apply**1082** for so-called legal protection in clear cases according to art. 257 CPC. This tool allows the applicant to obtain a judgment with full *res judicata* effect in a summary procedure**1083** concerning claims that, in the absence of such an application, would have to be 677

1082 Article 252 para. 1 Swiss CPC; therefore, it is incumbent on the party in need of fast legal protection to apply for it.

1083 Sogo, in: Haas/Marghitola, para. 10.142; Spichtin, para. 37.

tried in an ordinary or simplified procedure.**1084** The court may grant legal protection in clear cases only where the facts are undisputed or immediately provable and where the legal situation is clear.**1085** If these prerequisites are not met, the court does not consider the case.**1086** Yet the applicant may still bring the same claim anew in an ordinary or simplified procedure.**1087** The court cannot, however, on the merits decide against the applicant. Thus, the court may decide only to grant legal protection in clear cases or not to consider the case.**1088**

## **III. Concept and Forms in Arbitration**

#### **1. Concept and Definition**

#### **2. Historical Development in Arbitration**

As described in Chapter 2 of this thesis, a widespread revision of commercial arbitral rules, designed to include provisions on expedited procedures, took 680

1091 Cf. already above para. 90.

place during the 1990s. What these revisions did not incorporate were early determination procedures. It was in the field of investment arbitration where tangible and institutionalised steps were taken to implement this instrument aimed at increasing efficiency in arbitration.

In 2006, ICSID introduced in its arbitration rules provision 41(5) ICSID Rules 2006, which allows a party to request that the tribunal decide on an expedited basis that a claim is manifestly without legal merit. What this rule does not cover is the general use of tools for conducting the arbitration in an expedited way. The rule was introduced to efficiently address the increased concern for countering frivolous claims by investors. Up until the inclusion of this provision, it was unclear whether an ICSID tribunal had the implied power to decide on such claims in an expedited manner.**1092** Ever since its introduction, this instrument has generally been received well, even though the respondent states had only used this instrument in 40 cases by the middle of 2021, with a rather low success rate.**1093** 681

In 2016, SIAC was the first major commercial arbitration institution to introduce a provision expressly granting a tribunal the power to rule on a claim or defence in the form of an early dismissal procedure in rule 29. It did not take long for some of the other major arbitration institutions to adopt the same model.**1094** Notably, however, the ICC has not introduced a similar provision in either its 2017 or 2021 Rules and instead referred to an inherent power of ICC tribunals to make such a ruling.**1095** In 2020, the LCIA introduced its revised rules. While these rules notably still do not include comprehensive provisions on expedited procedures, they now feature an express basis for the tribunal to employ early determination procedures.**1096** Therefore, the summary and early determination procedures are now, under certain rules, an official instrument. 682

#### **3. Forms of Early Determination Procedures**

As mentioned at the beginning of this chapter, early determination procedures in arbitration encompass both summary judgment decisions and decisions to strike out or to dismiss.**1097** Which one of the two tools applies depends on 683

1097 See above para. 662.

the issue for which early determination procedures are sought. The main difference between the two instruments is whether a tribunal (1) renders a decision based on the assumption that, even if all pleaded facts were true, the applying party would still have no valid legal ground for its position (which is the case with decisions to strike out or to dismiss)**1098** or (2) concludes that a party obviously cannot prove its position (which is the case with summary judgment decisions).

# **IV. Scope of Application**

Early determination procedures in commercial arbitration contain three scopes of application: the material scope *(ratione materiae),* the personal scope *(ratione personae),* and the temporal scope *(ratione temporis)* of application. These will be analysed in more detail in the following. 684

#### **1. Material Scope of Application**

The material scope of application defines for which issues early determination procedures are available. Although there are many similarities among the rules in their provisions on early determination procedures, they differ in the details of their material applicability. While all rules examined here allow the early determination of claims and defences based on a lack of jurisdiction, they differ in whether they allow early determination based on a manifest lack of merit or whether they require a manifest lack of *legal* merit.**1099** Whether this potential difference actually has an impact in practice remains to be seen.**1100** 685

686

Which claims and defences are suitable for early determination procedures must be decided on a case-by-case basis. Potential claims and defences that may qualify as suitable issues include claims and counterclaims that are outside the jurisdiction of the tribunal, time-barred, forfeited, or inadmissible. In addition, the determination of the applicable law or potentially the seat of arbitration may be suitable issues for an early determination.**1101**

The requirement of a manifest lack of either merit or jurisdiction does not *per se* exclude complex disputes and issues from a disposition by means of an early determination procedure. Yet as shall be seen below in paras. 719–724, meeting the standard of 'manifest' is difficult, which is why a tribunal in disputes that are particularly complex may conclude in most cases that an application does not meet the standard. 687

#### **2. Personal Scope of Application**

As for the personal scope of application, early determination procedures in commercial arbitration in their present form are available to both the claimant and the respondent. While the claimant may always try to obtain an early determination against a defence by the respondent, the respondent may try the same against the claimant when the respondent files a counterclaim.**1102** 688

#### **3. Temporal Scope of Application**

In terms of the temporal scope of application, the rules differ in whether they do not set any time limits for the filing of an application for early determination procedures or whether they require the application as promptly as possible after the filing of the respective claims and defences.**1103** 689

# **V. Competence to Adopt Early Determination Procedures**

An interesting question is the basis for the competence of the tribunal to employ early determination procedures.**1104** The answer to this question is also significant for the assessment of whether the emergence of this instrument is an actual innovation or merely a cultivation of an existing possibility to structure the proceedings. As shall be seen, the competence can be deduced from either the *lex arbitri* (below sub-section 1), the arbitration agreement (below sub-section 2), or the arbitral rules (below sub-section 3). 690

1102 See the usage of *'a party'* (art. 39.1 SCC Rules; art. 29.1 SIAC Rules) or *'any party'* (art. 43.1 HKIAC Rules); cf. also Ragnwaldh/Andersson/Salinas Quero, 125.

1103 See art. 39.1 SCC Rules and art. 29.1 SIAC Rules (no time limit); art. 43.3 HKIAC Rules *('as promptly as possible after the relevant points of law or fact are submitted').*

1104 Cf. in general Chong/Primrose, 64–72.

#### **1. Lex Arbitri**

The starting point for the competence of the tribunal to use early determination procedures must be the *lex arbitri.* Only if these procedures are compatible with the law of the seat of arbitration may it then be relevant if the parties have made further stipulations on the issue in their arbitration agreement. Hence, it is necessary to interpret the *lex arbitri.* For Swiss law, it seems that so far no detailed discussion of the issue has taken place, which is why a more general examination seems warranted. The discussion revolves around two aspects: whether early determination procedures may be summarised under the tribunal's general competence to conduct the proceedings in a manner it considers appropriate (below sub-section 1.1) and, if this is affirmed, whether early determination conflicts with other provisions of the *lex arbitri* (below sub-section 1.2). 691

#### **1.1 The Power to Conduct the Proceedings in an Appropriate Manner**

	- 1105 See for the UNCITRAL ML art. 18 *('The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.'),* art. 19 para. 2 *('Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.')* and art. 24 para. 1 first sentence *('Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.');* English Arbitration Act section 33 *('(1) The tribunal shall — (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.')* and section 34 para. 1 *('It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.').*

early determination procedure.**1106** Due to the wide and general wording of this type of provisions, it is not immediately clear whether a *lex arbitri* with such general provisions allows early determination procedures. Nevertheless, it is submitted that, in principle, there are good arguments leading to the conclusion that this is the case.

As mentioned earlier, it is widely accepted that the tribunal has broad discretion to choose the procedure it considers appropriate.**1107** Therefore, when a tribunal deems an early determination procedure appropriate, it is difficult to see why it should not be able to use such a procedure. This conclusion carries even more weight when the *lex arbitri* allows the tribunal to rule on the admissibility, relevance, materiality, and weight of any evidence. This is because, ultimately, early determination proceedings may include a limitation of the admissible evidence.**1108** Furthermore, when the *lex arbitri* requires the tribunal to conduct the proceedings efficiently, like for example section 33 English Arbitration Act, it is even more compelling to conclude that a tribunal may theoretically use early determination proceedings.**1109** 694

Moreover, it has been held for the UNCITRAL Model Law that a tribunal should, in practice, use procedures likely known to the parties, which means that a tribunal should vary its approach depending on whether the parties have a common law or civil law background.**1110** While this statement, strictly speaking, is primarily aimed at the *appropriateness* of certain procedures, one can infer that a tribunal — based on the same *lex arbitri* (in this case being the UNCITRAL Model Law) — has the *competence* to employ a vast variety of different forms of procedures from both common and civil law countries. Thus, according to this view, competence and appropriateness must be distinguished. Even though a tribunal has the *competence* to employ a wide range of measures, it might not necessarily be *appropriate to use* a certain measure because the parties may not have expected it.**1111** Hence, according to this 695

1107 See above para. 558.

1108 See below paras. 701–703 .

1109 Rawding/Fullelove/Martin, in: Lew/Bor/Fullelove/Greenaway, paras. 18-40.

1106 In favour of the position Born, International Commercial Arbitration, 2411–2412; Chong/Primrose, 67 (with reservations, however); ICC Case no. 11413, in: ICC Arbitration Bulletin 21 (2010); Ryan/Dharmananda, 46; against the position Raviv, 490, holding that it is *'difficult if not impossible'* to adopt early determination proceedings if the institutional rules do not allow such proceedings; similarly cautious (though for the Indian *lex arbitri*) Salgia/Chandak, 81.

position, a tribunal, regardless of whether the arbitration is seated in a common law or civil law jurisdiction, has the competence to adopt early determination procedures.

696

As a counterargument, one might say that the appropriateness of a procedure does not relate to its practical suitability but is in fact tantamount to competence. In other words, if the tribunal does not consider a procedure to be appropriate, the tribunal lacks the competence to implement such a procedure. Yet it is submitted this approach would incorrectly equate the competence to implement with the reasonableness of the measure in a specific situation.

Therefore, it is argued that provisions granting the tribunal wide powers for the general conduct can also include the power to use early determination procedures. Whether it is appropriate for the tribunal to do so is a different question. 697

#### **1.2 The Duty to Respect the Parties' Due Process Rights**

It is argued that, in principle, there is no reason why such procedures should be incompatible with these due process rights. Before going into the details of the analysis, it is worthwhile to distinguish between the request for early determination procedures (hereinafter referred to as 'request phase') and the actual conduct of the early determination procedure (hereinafter referred to as 'determination phase'). In the determination phase, one must further distinguish whether the early determination procedure resembles a motion for summary judgment or a motion to strike out or to dismiss.**1113**

1113 Also assessing these two instruments differently Mouawad/Silbert, 92.

1114 See above para. 683; yet despite the wording of Rule 41(5) ICSID Rules 2006 (now Rule 41 ICSID Rules), it has been questioned whether a claimant may also apply for summary disposition, on which see Potestà, 254, with further references.

merit whereas the respondent will likely avail itself of this feature against meritless *claims.* Furthermore, a request for such procedures by one party leads to an opportunity for the other party to comment.**1115** Therefore, it is submitted that an early determination procedure respects the rights of the parties equally in the request phase.

#### b Determination Phase

In the determination phase when a party applies for a motion to strike out or to dismiss,**1116** the tribunal assumes all of the facts pleaded by the party against whom such a motion is brought to be true and, based on these facts, assesses whether they show a legal interest worthy of protection.**1117** In such a situation, on the factual and evidential level, there cannot be a violation of the right to be heard of the party against whom the motion is sought. This is because this party is relieved from presenting any evidence.**1118** Similarly, a tribunal may adapt such procedures only after consulting with the parties.**1119** Hence, it is difficult to see how the party against whom an early determination procedure is sought may suffer a violation of its due process rights. 701

If, however, the early determination procedures resemble summary judgment procedures, a violation of the parties' right to be heard is a possible consequence. As has been seen, summary judgment procedures in litigation restrict the admissibility of oral evidence by doing away with a full hearing.**1120** Similarly, it has been argued that the usage of early determination procedures in arbitration may lead to a restriction of the admissible evidence.**1121** This restriction might, depending on the facts of the case, disproportionately disfavour, and thereby restrict, a certain party from relying on specific (means of) evidence. 702

Yet two reasons may mitigate potential violations of the right to be heard. First, as shall be seen in the following section, early determination procedures in arbitration do not necessarily exclude hearings and oral evidence. Rather, it is within the discretion of the tribunal to allow these means of evidence-gathering.**1122** Second, since the tribunal must give the parties a right to comment 703

1117 See above para. 683.

1119 See art. 43.5 HKIAC Rules; art. 39.4 SCC Rules.

1120 See above para. 669.

1121 Collins, 533–535; Costábile, 264–266; Gill, 516.

1122 See below para. 736; cf. further Choong/Mangan/Lingard, para. 11.45.

1115 See for example art. 43.5 HKIAC Rules; art. 39.4 SCC Rules.

1116 See for example art. 43.1(a)–(c) HKIAC Rules.

1118 As Mouawad/Silbert, 90, correctly pointed out, a summary judgment, unlike a motion to dismiss, is premised on a review of the evidence; cf. further Raviv, 489.

on the application for an early determination procedure,**1123** the party relying on crucial oral evidence in its favour has a chance and incumbency to reasonably explain why such a procedure, or at least a restriction of admissible evidence, would result in an unjustified disadvantage to this party. It seems questionable whether a sensible tribunal would grant a motion for an early determination procedure or grant it together with heavy restrictions on potentially crucial evidence.**1124**

#### **1.3 Conclusion**

As a result, general provisions of the *lex arbitri* empowering the tribunal to conduct the proceedings the way it deems appropriate include the competence of the tribunal to employ early determination procedures. This competence relates to early determination procedures in the forms of both summary judgments and motions to dismiss or strike out. 705

#### **2. Arbitration Agreement**

Apart from the *lex arbitri,* the arbitration agreement is an apparent source of competence for adopting early determination procedures. One must distinguish between express provisions granting the competence to the tribunal to adopt early determination procedures (below sub-section 2.1) and provisions implicitly granting this competence to the tribunal (below sub-section 2.2). 706

#### **2.1 Express Competence**

An obvious basis for the competence to employ early determination procedures is an express provision in the arbitration agreement allowing for early determination procedures. On the condition that this provision is unambiguous and 707

1123 See for example art. 43.5 HKIAC Rules; art. 39.4 SCC Rules.

1124 Also sceptical (for expedited procedures, however) Bühler/Heitzmann, 140.

does not conflict with the mandatory rules of the *lex arbitri,***1125** such a choice is likely the most straightforward example of granting competence to the tribunal to adopt early determination procedures. Nevertheless, even when the arbitration agreement contains an express choice of such procedures, uncertainties may persist. For example, it may be doubtful whether the parties intended the tribunal to apply an early determination procedure in the form of either a summary judgment or striking-out procedure, or in both forms.**1126** In order to determine the parties' intention, an interpretation of the arbitration agreement is necessary.**1127**

#### **2.2 Implicit Competence**

Instead of an express choice, the parties can also choose early determination procedures implicitly. One could, for example, ask whether the choice of a common law jurisdiction providing for such procedures in its civil procedure code as the seat of arbitration may be interpreted as an implicit agreement on the tribunal's power to use early determination procedures.**1128**Conversely, the choice of a civil law country as the seat of arbitration whose civil procedure code does not provide for early determination procedures could be interpreted as an exclusion of early determination procedures. 708

Although such general reasoning may seem appealing at first glance, the problem with this approach is that due to the autonomy of international arbitration from national litigation regimes,**1129** creating a connection to the national civil procedure code of the seat of arbitration appears doubtful. Similarly, where the parties make provisions regarding the conduct of the proceedings or the right to submit evidence, the tribunal must carefully assess whether the parties (1) thereby actually intended to grant or exclude the competence to employ early determination procedures to the tribunal or, (2) as is more likely, had no such intention at all. General answers do not seem possible, which is why, once again, a careful interpretation of the arbitration agreement is required. 709

Another problem may arise out of contradictory stipulations in the arbitration agreement. For example, in the arbitration agreement, the parties may 710

1129 See in detail above paras. 142–145.

agree on the availability of early determination procedures but also include provisions conflicting with such a choice. An obvious example of the latter would be an agreement providing for a hearing under any circumstances. Once more, general guidelines for such a situation are difficult. However, it is submitted that if an interpretation of the arbitration agreement does not lead to a clear conclusion, the prudent approach is to give priority to the provision(s) excluding an early determination procedure. Even though such a choice may potentially deprive the parties of faster and cheaper legal protection in obvious cases, it still appears preferable.

#### **3. Arbitration Rules**

The third source of competence for adopting early determination procedures are the arbitration rules chosen by the parties. As will be seen, different rules have employed two different approaches regarding the competence to adopt such procedures — an express anchoring in the rules and an implicit one. 711

#### **3.1 SIAC Approach: Express Competence**

The first approach is an express mention of the competence to adopt early determination procedures in the arbitration rules. SIAC was the first commercial arbitral institution to adopt this approach in 2016.**1130**According to its rule 29.1, a party may apply to the tribunal for the early dismissal of a claim or defence, on the basis that a claim or defence is manifestly without legal merit or manifestly outside the jurisdiction of the tribunal. With such an express provision, there can be no doubt that the tribunal may use early determination procedures, provided that such a rule does not conflict with mandatory provisions of the *lex arbitri.* Other institutions have included similar provisions in their rules.**1131** 712

#### **3.2 ICC Approach: Implicit Competence**

The ICC rules at the time of writing do not contain an express provision regarding early determination procedures. According to the ICC, such a provision is not necessary because the ICC rules already vest a tribunal with a competence to employ such procedures. As the ICC explained in its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration, an application for the expeditious determination of manifestly unmeritorious 713

1130 See above para. 682.

1131 See art. 43 HKIAC Rules; art. 25 JAMS International Rules; art. 39 SCC Rules.

claims or defences may be addressed within the broad scope of article 22**1132** ICC Rules.**1133**

At this point, the question is whether the reasoning of the ICC is correct. Article 22 ICC Rules differs from some national regimes insofar as it expressly mentions the conduct of the proceedings 'in an expeditious and cost-effective manner'. However, it is noteworthy that art. 22 ICC Rules is worded in a genteral and broad manner and is thereby similar to various national provisions relating to the general conduct of the arbitral proceedings.**1134** As has been explained in the analysis of the (Swiss) *lex arbitri,* general provisions granting the tribunal wide discretion as to the conduct of the proceedings are sufficient to affirm a competence to adopt early determination procedures. Hence, provisions like art. 22 ICC Rules are also generally sufficient to grant the tribu-r nal the competence to use early determination procedures.**1135** 714

# **VI. Standard for Granting an Application**

In order for a claim or defence to be disposed of in an early determination procedure, the claim or defence needs to be 'manifestly' without (legal) merit or 'manifestly' outside the jurisdiction of the tribunal.**1136** Therefore, it must be examined what 'manifestly' means and under which law it will be decided whether an application for early determination procedures meets this standard. 715

#### **1. Applicable Law**

party (see on this Wallach, 845–846).

The meaning of 'manifestly' could theoretically be derived from at least three different laws: The law applicable to the merits, the law of the seat of arbitration, 716

1132 Cf. especially arts. 22.1*('The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.')* and 22.2 *('In order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.').*

and if they were assumed to be correct, no award could be rendered in favour of that

and the law governing the arbitration agreement.**1137** The choice of the relevant law depends on the issue that manifestly lacks merit.

#### **2. Meaning of 'Manifestly'**

An essential consideration for early determination procedures in arbitration is the meaning of 'manifestly' and thus a definition of when this standard is met. 719

#### **2.1 Different Relevance of the Standard**

Before turning to the details of how the standard of 'manifestly' is defined in the context of early determination procedures, it is important to discern the functions of the standard and its relevance based on the form of the early determination procedure sought. When an early determination procedure resembles a motion to dismiss or to strike out, the facts pleaded by the party whose claim or defence is subject to the early determination procedure are supposed to be true.**1139** Therefore, the meaning of 'manifestly' refers to the legal merit of the claim or defence as a result of uncontested facts. However, 720

1137 See in general for the relevance of this laws in conflict of laws issues in international arbitration Lew/Mistelis/Kröll, para. 22.26.

1138 Cf. for everything BSK ZPO Hofmann, art. 257 para. 11b; KuKo ZPO-Jent-Sørensen, art. 257 para. 9 for the exclusive relevance of the law applicable to the merits of the dispute (and thus *e contrario* against the qualification of the requirement of clarity as a procedural aspect) in proceedings of legal protection in clear cases in Switzerland; see for a further discussion of the distinction between the burden of proof and the standard of proof specifically in international arbitration Girsberger/Voser, paras. 987–988; Lew/Mistelis/Kröll, paras. 22.25–22.26.

1139 See above para. 671.

when an early determination procedure takes the form of a summary judgment, the standard of 'manifestly' primarily pertains to the factual, rather than the legal, foundation of a claim or defence.**1140**

#### **2.2 Defining the Standard for 'Manifestly'**

In order to determine the meaning of 'manifestly', some guidance can be taken from decisions under Rule 41(5) ICSID Rules 2006 (now Rule 41 ICSID Rules) and from national court decisions defining the standard for early determination procedures under their national procedural codes.**1141** The ICSID case law is only of limited value, however, because various tribunals have applied different standards. Yet there appears to be a consensus that the standard to be met is *'very demanding and rigorous'.* Accordingly, 'manifestly' is tantamount to 'clear' and 'obvious'.**1142** 721

Under national law, US and English courts have had opportunities to define the standard. For motions to dismiss, the US Supreme Court held that the claimant's case should not be dismissed with a motion if, under the assumption that all of the claimant's pleaded facts were true, these facts would raise a right to relief above the speculative level.**1143** The English courts require that, for granting a summary judgment, either a claim is barred as a matter of law or the factual basis for the claim is fanciful.**1144** 722

In addition to these common law jurisdictions, it is useful to turn to some civil law jurisdictions with similar concepts. For instance, when the arbitrators have a civil law background, they might draw upon comparable concepts from their home jurisdiction. The legal protection in clear cases under the Swiss CPC, introduced earlier, may be a suitable concept for this purpose. In order to qualify as a clear case, the facts of the dispute must be undisputed or at least readily provable and the law must be clear. The law is clear when the legal consequences of the factual circumstances, without further ado, follow from the law and lead to an unequivocal result.**1145** 723

1140 See for the relevance of the factual underpinning Born/Beale, 26.

1141 See Choong/Mangan/Lingard, paras. 11.30–11.34.

1142 For everything PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea, Decision on Respondent's Objections under Rule 41(5), 28 October 2014 (ICSID Case No. ARB/13/33); c. 88; Trans-Global Petroleum, Inc. v. The Hashemite Kingdom of Jordan, The Tribunal's Decision on the Respondent's Objection Under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008 (ICSID Case No. ARB/07/25) c. 83; cf. for a comprehensive overview Howes/Stowell/Choi, 13–16; Potestà, 258–259.

1143 Bell Atlantic Corp. v. Twombly, 550 US 544 (2007).

1144 Three Rivers District Council and Others v. Governor and Company of the Bank of England (No. 3) [2003] 2 AC at 260, c. 95.

1145 For everything DFT 141 III 23 c. 3.2; decision Swiss Federal Tribunal no. 4A\_25/2019 of 15 April 2019 c. 3.

As these positions under the foregoing national regimes confirm, the standard required to grant an application for early determination procedures is extremely high.**1146** While this standard limits the field of application of the instrument, this restrictive approach appears to be justified. This is because of the potentially significant deviation from other arbitral proceedings, as well as the fact that the determination will be final and binding.**1147** Accordingly, it appears apt to equate 'manifestly' with 'clear'. 724

## **VII. Procedure**

#### **1. Request Phase**

Early determination procedures start with what is referred to here as the request phase.**1148** The first step is an application by the party requiring an early determination procedure in order to dispose of a claim or defence by means of an early determination procedure.**1149** Furthermore, there are good reasons to assume that the tribunal, based on its general competence to conduct the proceedings the way it deems appropriate, may adopt early determination procedures even on its own motion. However, such a decision would be highly unusual and very rare in practice,**1150** which is why early determination procedures should be adopted only upon the request of a party. The details of such a request will be analysed more closely in the following. 725

#### **1.1 Request and Comments by the Other Party**

In the application, the party requiring the early determination procedures must show that the grounds for these procedures are met, i.e., that the respective claim or defence is manifestly without legal merit or outside the jurisdiction of the tribunal, and that the adoption of early determination proceedings will be time-efficient and cost-effective.**1151** In addition, some rules also require a proposal as to the structuring of the early determination procedures.**1152** 726

1152 See art. 43.4 in connection with arts. 13.1 and 13.5 HKIAC Rules.

Although this is not expressly mentioned under all rules, after the submission of the request, the tribunal first has to grant the other party an opportunity to comment on the request.**1153** Early determination procedures may significantly deviate from the otherwise agreed procedures, which is why granting the other party a right to comment, and thus to be heard, is paramount.**1154** 727

#### **1.2 Decision by the Tribunal on whether to Allow the Request**

After having received the comments by the other party, the tribunal must decide whether it will allow the request for an early determination procedure to proceed. At this point, the tribunal does not decide whether a claim or defence manifestly lacks merit or is beyond its jurisdiction. Instead, the tribunal only decides whether it allows the application for early determination procedures to go forward.**1155** 728

Accordingly, the criteria that determine whether the tribunal should allow or dismiss the request relate to the question of whether the interim step of an early determination procedure is likely to lead to savings in time and cost, as opposed to a decision on the respective claim or defence outside such a special procedure.**1156** It is submitted that the tribunal should consider the potential for time and cost savings on a *prima facie* basis.**1157** In addition to this criterion of saving time and costs, the request for early determination procedures must be admissible. This is not the case if the party applying for these procedures did not file its request in accordance with the provisions of the rules. Examples of this defect include requests submitted after the procedural deadline (where such a deadline exists) and requests that do not comply with the necessary formalities.**1158** Lastly, certain rules require the tribunal to allow or dismiss the application within a specific time limit. However, such a time limit may be extended.**1159** 729

Potential obstacles to allowing the request to proceed are contrary agreements between the parties and the tribunal in the form of a procedural timetable. As shall be seen below in paras. 732–733, allowing a request for early determination procedures may lead to a temporary suspension of the remaining 730

proceedings. This suspension may conflict with an already agreed procedural timetable. Yet the tribunal may alter a timetable without compromising the integrity of the proceedings. For example, the ICC Rules expressly provide for this possibility.**1160** Likewise, under other rules, the timetable cannot — without any indication to the contrary — be meant to prevent any changes based on legitimate requests.**1161** Therefore, even if the parties and the tribunal have agreed on a timetable, this does not exclude allowing the request for early determination procedures.

#### **2. Determination Phase**

In the determination phase, the tribunal has two tasks: it first needs to decide on the application. For this decision, the tribunal needs to devise an appropriate procedure. Second, when the tribunal has admitted the application for early determination procedures, it then needs to devise the proceedings in a way that allows an efficient yet fair determination of the application. For this purpose, the tribunal needs to make two basic decisions, as explained below. 731

#### **2.1 Stay of Remaining Proceedings?**

The first decision for the tribunal is whether it orders a stay of the rest of the proceedings in order to focus exclusively on the early determination.**1162** This often seems to be a promising approach. If the early determination results in a complete termination (for example due to a lack of jurisdiction) or, at the very least, a simplification of the rest of the proceedings (for example because of a time-bar on most of the claims), staying the rest of the proceedings for the time being is advisable. 732

733

A problem that may occur in this context is an abusive use of the early determination procedure in order to delay the rest of the proceedings. Should a tribunal suspect something of this kind, it might be recommendable not to stay the remainder of the proceedings. However, this proposal may admittedly put increased pressure on the parties and their counsel in terms of time because they will then have to participate in two partial proceedings simultaneously.**1163**

1163 See for this problem Sussman/Ebere, 30.

#### **2.2 Exercise of Due Process Rights?**

The second decision relates to the parties' due process rights. Specifically, the tribunal needs to determine if and how the parties may make further submissions and present evidence. One possibility for the tribunal is to allow a further round of submissions. Alternatively, the tribunal may directly hold a hearing.**1164** 734

In deciding whether to conduct a written procedure or to hold a hearing, the tribunal must weigh the parties' interest in a fast determination against the parties' due process rights. Although a hearing may be time-consuming, it may be necessary to hear from witnesses. Under such circumstances it may be almost inevitable to hold a hearing. 735

In appropriate cases, a tribunal could consider reaching a decision directly without further submissions or holding a hearing. Though such cases may be rare, a conceivable scenario would be where the tribunal considers that an issue is ripe for decision *('spruchreif')* because the parties have already extensively used their possibilities for making submissions. However, even though this approach has the benefit of efficiency, it risks resulting in an unenforceable award because of a potential violation of the parties' due process rights.**1165** 736

# **VIII. Decision on the Application**

If the tribunal, after having allowed the application to proceed, rules on the application, it can either dismiss or admit the application. Depending on the decision, the tribunal either renders an award or issues a procedural order.**1166** The difference is that an award is immutable and carries *res judicata* effect whereas a procedural order can be changed and therefore does not have any *res judicata* effect.**1167** In addition, an award contains a final ruling on the parties' substantive rights and possibly on the jurisdiction of the tribunal, whereas procedural orders primarily concern the parties' procedural rights.**1168** 737

1164 For everything Ragnwaldh/Andersson/Salinas Quero, 125.

1165 See below paras. 816–819 and 831–835.

1166 See for example art. 43.6 HKIAC Rules; art. 29.4 SIAC Rules.

1167 See below para. 759.

1168 See in general Born, International Commercial Arbitration, 3172–3177.

#### **1. Dismissal of the Application**

When the tribunal dismisses the application, it concludes that a claim or defence is not manifestly without merit. By doing so, the tribunal does not ultimately decide whether or not to grant a claim. Instead, the tribunal merely decides not to exclude a claim or defence from the proceedings at this point. Accordingly, it does not render a final decision on substantive rights or on its jurisdiction. Rather, the tribunal only decides that the issue in question will be examined later in the proceedings under a standard different from 'manifest lack of merit'. Consequently, this decision should take the form of a procedural order rather than an award. With the termination of the early determination procedures, the ordinary proceedings will continue. 738

#### **2. Admission of the Application**

# **IX. Conclusion**

#### **1. Innovative Feature?**

For all the recent attention that the feature of early determination procedures in arbitration has received, one cannot but notice that, at least in commercial arbitration, this tool did not require a fundamental change in the regulatory landscape of international commercial arbitration. On the contrary and as 741

has been seen, under many arbitration rules and based on many *leges arbitri,* early determination procedures would have been available already.**1170** Nevertheless, the rule revisions following the introduction of ICSID Rule 41(5) ICSID Rule 2006 helped draw the arbitration community's attention to the potential use of this tool. In addition, an early determination procedure relies on instruments readily available in 'standard' proceedings, such as a separation of issues and limited taking of evidence.**1171** As a result, one could argue that the innovative potential of this tool is limited.

Despite these observations, it would be short-sighted to deny early determination procedures having any innovative force. In practical terms, this instrument may help increase the efficiency of the proceedings once they have commenced.**1172** Furthermore, it may proactively prevent unnecessary proceedings from commencing altogether.**1173** 742

#### **2. Advantages and Disadvantages**

Some practitioners have voiced concerns that the disadvantages of early determination procedures outweigh the benefits. While some reservations are acceptable, it appears that this pessimistic conclusion is not entirely justified. 743

As explained in the previous sub-section, the prospect of a procedure to dispose of groundless claims and defences quickly and efficiently may deter such claims and defences in the first place. This, of course, may increase the efficiency of the proceedings. The positive experiences with Rule 41(5) ICSID Rules 2006 corroborate this assumption.**1174** In addition, an early determination of certain issues may promote and facilitate settlements.**1175** 744

Nonetheless, sceptics of this tool may be correct in their fear that, if employed incorrectly, early determination procedures may actually increase the time and cost of the proceedings. In particular, the likelihood of the early determination procedures temporarily suspending the rest of the proceedings may make such procedures an attractive tool for an obstructive party to prolong the proceedings. Indeed, some have voiced the fear that early determination procedures may create secondary proceedings within the main proceedings, resulting in unnecessary prolongation.**1176** However, the tribunal 745

can impose cost sanctions for such actions, which in turn may prevent at least some of these dilatory requests.**1177**

746

Another risk is a misuse of this tool by the tribunal when the latter grants the request despite the requirements for it not being met. Once more, this may result in less efficient proceedings. However, the same concern can be voiced for almost any procedural tool that may, in the hands of an inapt tribunal, impede the resolution of the dispute rather than facilitate it.**1178**

One problem that has not received any attention in legal writing so far, but that practitioners have brought up at conferences, relates to the interplay between prevailing in the early determination procedures, on the one hand, and in the overall proceedings, on the other. Defending against an application for early determination procedures may put a party into a position in which this party compromises its position for the rest of the proceedings. Although the other party may cunningly set this kind of trap, there is no reason *per se* why this problem should militate against the use of early determination procedures. If both the early determination and remaining procedures are fair, it will be difficult to hold it against a party if the other party, due to a negligent strategy, compromises its own position. Nevertheless, a slightly bitter aftertaste remains. 747

Despite these downsides, however, it is submitted that the prospect of increasing efficiency and deterring clearly unmeritorious claims and defences may justify the use of this tool. In order for it to find acceptance and be beneficial, tribunals must carefully assess whether a dispute is suitable for early determination on a case-by-case basis. 748

#### **3. Alternatives**

Irrespective of the overall positive assessment of the occasional use of early determination procedures, alternatives may sometimes lead to better results, as well as come under less scrutiny at the enforcement stage. 749

#### **3.1 Bifurcation**

A widely accepted alternative to the introduction of a separate procedure within the overall proceedings is to divide the proceedings into different stages to deal with specific issues separately.**1179** This commonly-used practice is 750

1179 Claxton, 160; Greenwood, Bifurcation and Efficiency, 422; Habegger, 131–132; Hinchey, 255–256.

called bifurcation.**1180** Bifurcation is, for example, often used in cases where the tribunal, in a first phase, decides on its jurisdiction and only in a second phase, if necessary, considers the merits of the case. Another example is bifurcation into a first phase for the determination of liability and a second phase for a determination on quantum.**1181**

The advantages of this approach lie in its adherence to a widely-accepted procedure that, at the same time, may allow for significant gains in efficiency. If the tribunal determines that it does not have jurisdiction in the first place, further proceedings are superfluous.**1182** Furthermore, bifurcation is oftentimes the result of a case-management conference where the parties and the tribunal agree on bifurcation.**1183** This may differ significantly from an early determination procedure, which the parties and the tribunal have not necessarily agreed on together. 751

However, as rightly pointed out by Greenwood, bifurcation usually leads to efficiency gains only when the tribunal terminates the proceedings due to bifurcation (for example, for a lack of jurisdiction). When the tribunal bifurcates the proceedings and ultimately orders the proceedings to continue, the conduct of bifurcated proceedings is often less efficient than it would have been without bifurcation.**1184** 752

#### **3.2 Other Forms of Active Case Management**

More generally, the tribunal can take further steps that may prevent the need for a unilateral party application for early determination procedures. Particularly, at a case-management conference, the tribunal may express its preliminary views on the case and propose an early determination for certain issues.**1185** 753

1180 See for example Castagna, 359–360; Di Giacomo Toledo, 194–195.

1181 For everything Castagna, 359, 369.

1182 For everything Greenwood, Bifurcation and Efficiency, 422.

1183 See for example C. Annex 3 DIS Rules.

1184 For everything Greenwood, Bifurcation and Efficiency, 425; see also Cremades, 666; Zuberbühler/Hofmann/Oetiker/Rohner, art. 2 para. 20.

1185 ASA, Comments and Recommendations, para. 9; cf. for this proposal further art. 2.3(b) IBA Rules on the Taking of Evidence.

# **Part 4 The Effects and Review of Expedited Arbitration**

# **Chapter 12 Closure of the Proceedings: The Award and Determination of Costs**

Expedited procedures may be relevant not only for the conduct of the proceedings but also for their result, i.e., the award. Unsurprisingly, due regard must also be paid to certain aspects of expedited procedures in the awardrendering phase. Yet, and as will be seen in the following, some aspects may be different for arbitral awards rendered under expedited procedures as compared to those rendered under ordinary ones. In addition, expedited procedures may also make a difference for the final determination of the costs of the proceedings. 754

This chapter will accordingly analyse in detail the effects that expedited procedures have on the award and costs allocation. After some general considerations (see below section I), a special focus will be on the meaning and conisequences of time limits for rendering the final award (see below section II), summarily reasoned and unreasoned awards that are a common feature of expedited arbitrations (see below section III), as well as costs, which may often be dealt with differently under expedited procedures compared to ordinary ones (see below section IV). 755

### **I. General Considerations**

#### **1. Types of Awards**

The final and binding decision by the tribunal on the issues submitted to it is the arbitral award.**1186** Depending on the circumstances, the tribunal may render several different awards during a proceeding. When the tribunal conclusively decides on all the issues submitted to it, the tribunal renders a final award.**1187** When it finally decides on only some of the issues submitted to it (for example, 756

1186 Moses, International Commercial Arbitration, 201; Schmidt, 83; Stacher, Einführung, para. 372.

1187 See art. 189 Swiss PILA; cf. further Kaufmann-Kohler/Rigozzi; 7.105; Schmidt, 106– 108; Stacher, Einführung, para. 372.

only a part of all submitted claims), it issues a partial award.**1188** As a third option, the tribunal can conclusively rule on a preliminary question, which, however, does not amount to a final determination of an issue (for example, the law applicable to a liability claim). In this case, the tribunal renders an interim or preliminary award.**1189**

#### **2. Termination of Proceedings**

#### **3. Res Judicata Effect**

An arbitral award generally has *res judicata* effect, which means that it is binding on the tribunal and the parties.**1194** The details of this binding effect depend on the law applicable to *res judicata.***1195** Under Swiss law, only the operative part of the award carries *res judicata* effect. Furthermore, the *res judicata* effect binds the parties according to the issues decided in the award and excludes any further claims that are part of the subject matter of the decision *('derselbe Streitgegenstand').***1196** 759

1196 For everything DFT 142 III 210 c. 2.1; decision Swiss Federal Tribunal no. 4A\_442/2017 of 28 August 2018 c. 2.3.2; Staehelin/Staehelin/Grolimund-Staehelin, § 24 para. 16.

#### **4. Irrelevance of Expedited Procedures**

Expedited procedures have no effect on any of the above. Specifically, the distinction between ordinary and expedited procedures is irrelevant for the *res judicata* effect of an award. Unlike decisions for interim relief and decisions by an emergency arbitrator, the awards rendered in expedited procedures are the result of a full, potentially faster, arbitral procedure and of a full review of the admissible evidence.**1197** Hence, the foregoing considerations apply equally to arbitrations conducted under expedited procedures. 760

## **II. Time Limits for Rendering the Final Award**

#### **1. Overview**

#### **1.1 Expedited Procedures**

Various provisions for expedited procedures set forth time limits for the rendering of the final award. The majority of these are around six months**1198**, a time period that starts running not at the end of the hearing but rather at an earlier point during the proceedings, like the transmission of the file to the tribunal,**1199** the constitution of the tribunal,**1200** or the case-management conference.**1201** A notable exception are the AIAC Rules, which state that the arbitral tribunal shall declare the closure of proceedings no later than 90 days from the tribunal's delivery of the first procedural order**1202** and that the tribunal shall submit its draft final award to AIAC for technical review within 90 days.**1203** Generally, the institutions may, under exceptional circumstances, extend the time limits for rendering the award.**1204** It is significant to note that the DIS and VIAC rules expressly state that a non-compliance with the time limit does not deprive the tribunal of its jurisdiction.**1205** 761

```
1197 Cf. for everything Bühler/Heitzmann, 148. This contrasts with decisions on interim
     relief or decisions by an emergency arbitrator, both of which only have to pass a prima
     facie test (see above para. 568).
1198 Cf., however, as a notable exception art. 43 SCC Expedited Rules, which sets a three-
     months limit starting with the transmission of the file to the tribunal, and art. 71.1
     CIETAC Rules (four months after the constitution of the tribunal).
```
1199 Cf. for example art. 42.2(f) HKIAC Rules; art. 42.2(e) Swiss Rules.

1200 Cf. for example art. 5.2(d) SIAC Rules.

1201 Cf. for example art. 1 Annex 4 DIS Rules; art. 4 Appendix VI ICC Rules.

1202 Article 8.8(l) AIAC Rules.

1203 Article 8.8(n) AIAC Rules.

1204 Cf. for example art. 71.2 CIETAC Rules; art. 4.1 Appendix VI ICC Rules; art. 5.2(d) SIAC Rules.

1205 Article 5 Annex IV DIS Rules; art. 45.8 VIAC Rules.

#### **1.2 Ordinary Procedures**

Some ordinary arbitration rules also contain time limits for the rendering of the final award. Such time limits under ordinary procedures differ significantly depending on the rules,**1206** which may in part be attributed to different starting points of the timeframe depending on the rules. The longer timeframes tend to start early on in the proceedings**1207** whereas the shorter ones start running only at the end of the hearing.**1208** Similarly as under expedited procedures, the institutions may extend this time limit.**1209** 762

#### **2. Relevance of the Time Limit and Consequences for Failure to Comply**

As the foregoing has revealed, arbitrators under expedited procedures typically need to render an award within a short period of time. Under ordinary procedures, either no such time limits exist, or they are longer. The qualification and effect of time limits for rendering an award in institutional rules are disputed under Swiss law. The question is whether the parties and the arbitrators intended that, after the lapse of the time limit, the arbitrators would have no jurisdiction anymore to render an award (jurisdiction *ratione temporis*).**1210** In order to determine this, the agreement between the parties and the arbitrators (the *receptum arbitri*) needs to be interpreted. Typically, the only specific provisions on this issue are the terms in the arbitration rules imposing said time limits. One group of commentators argues that these deadlines limit the duration of the arbitrators' mandate. In other words, once the time limit has lapsed, the tribunal is *functus officio* and has no competence anymore to render an award.**1211** In contrast, other commentators under Swiss law consider such deadlines as a mere timeframe regulating the conduct of the arbitration without terminating the arbitrators' mandate.**1212** 763

1206 Cf. for example art. 31.1 ICC Rules (six months); art. 31.2 HKIAC rules (three months) and art. 32.3 SIAC Rules (45 days).

1207 Cf. for example art. 31.1 ICC Rules, according to which the signing or approval of the terms of reference is decisive; and art. 43 SCC Rules, referencing the transmission of the file to the tribunal.

1208 Cf. for example art. 37 DIS Rules; art. 32.3 SIAC Rules.

1209 Cf. for example art. 31.2 HKIAC Rules; art. 31.2 ICC Rules.

1210 See for everything De Vito / Favre Schnyder, in: Zuberbühler/Müller/Habegger, art. 42 para. 17.

1211 For everything Lenggenhager, ICC Rules, Article 31, in: Arroyo, para. 11; see in general under the ICC Rules Webster/Bühler, para. 31.16.

1212 Arroyo, 12 PILS, Article 190, in: Arroyo, para. 42; De Vito / Favre Schnyder, in: Zuberbühler/Müller/Habegger, art. 42 para. 17; Poudret/Besson, para. 454.

Three court decisions have led to some clarity in this regard for Swiss law.**1213** A judgment of the Appeal Court of Basel Stadt from 1984 seems to be the only court decision to date in which the issue was decided directly. In this judgment, the court held that a provision of the then applicable ICC Rules on the time limit for rendering the award was not meant to limit the arbitrator's mandate.**1214** In a 2014 decision,**1215** the Swiss Federal Tribunal had to rule on an award that was delivered after a potential termination of the arbitrator's mandate. Although the court did not directly engage in a discussion of institutional rules providing for deadlines for rendering the award, the Swiss Federal Tribunal analysed the various actions of the parties in detail in order to conclude that they had reached a specific agreement during the arbitration whereby they reasonably intended the arbitrator's mandate to terminate at a certain point in time, with the result that after this time limit has lapsed, any award would be rendered without jurisdiction.**1216** While it might be an overly liberal interpretation of the decision to say that the court requires a specific agreement on the termination of the arbitrator's mandate rather than just a reference to arbitration rules providing for a time limit for the rendering of the award,**1217** it is submitted that the decision nonetheless reveals a reluctance of the court to affirm such termination too easily. Yet the court ultimately clarified in a 2017 decision, albeit by implication, that the parties need to have an express agreement on the term limit of an arbitrator and that a mere time limit for rendering an award is insufficient to affirm a termination of the arbitrators' mandate after the lapse of the time limit to render the final award.**1218** 764

Based on the discussion above, it is argued that the position under Swiss law is that a mere time limit in institutional rules for rendering a final award cannot be construed as an agreement of the parties to deprive the arbitrators of their jurisdiction after the lapse of this time limit. The reason for this position is that the consequences of holding otherwise would potentially be so disastrous for procedural efficiency that it cannot be reasonably presumed that the parties intended such consequences. Equating a time limit for rendering the award with the end of the arbitrators' mandate would mean that if the

765

1217 In this direction, however, Arroyo, 12 PILS, Article 190, in: Arroyo, paras. 39–51.

1215 Decision Swiss Federal Tribunal no. 4a\_490/2013 (DFT 140 III 75; however, without the procedural history and full considerations) of 28 January 2014.

1216 For everything *ibid*, c. 4.1.

1218 For everything Decision Swiss Federal Tribunal no. 4A\_188/2016 of 11 January 2017 c. 4.2.

arbitrators failed to comply with the time limit, and if no extension (based on either a decision of the institution or the agreement of the parties) took place, the whole arbitration would have been in vain. The parties would then have to initiate another dispute-resolution process.**1219**

766

The counterargument would be that equating the time limit for rendering the award with a temporal limit on the arbitrators' mandate would be a strong incentive for the arbitrators to render an award within this limit. Hence, the parties would have intended an efficient decision-making process of the tribunal. Yet weighing an understandable desire for efficient decision-making against the effect of an award rendered without jurisdiction *ratione temporis* should lead to the conclusion that the parties would normally not have intended the latter effect.**1220**

767

Consequently, time limits for rendering the award should reasonably be interpreted as mere provisions regulating the decision-making process of the arbitrators instead of limiting their jurisdiction. The significance of provisions of this kind is that they are a general way to determine if the tribunal complied with the duty to efficiently conduct the proceedings and to render the award. With this function, these provisions may have financial consequences that will be analysed in the next sub-section, but do not affect the validity of the award.

768

It must be noted that an interpretation of the arbitration agreement is necessary only where the rules themselves do not qualify the respective provisions. In contrast, where the rules expressly state the consequence of exceeding the time limit (for example, art. 45.8 VIAC Rules), such a provision will be decisive for the consequences of non-compliance with the time limit.

#### **3. Consequences of Non-Compliance with the Time Limit**

Based on the above-mentioned qualification of time limits for rendering the award as mere provisions regulating the conduct of the proceedings, noncompliance with such a time limit does not render the award invalid, unless the rules provide differently. Nonetheless, financial consequences are possible, as shall be seen in the following. 769

#### **3.1 For the Arbitrators**

Some institutional rules provide for a reduction of the tribunal's fees where the tribunal did not conduct the proceedings with sufficient efficiency.**1221** 770

1219 See for everything also De Vito/Favre Schnyder, in: Zuberbühler/Müller/Habegger, art. 42 para. 17; Sachs/Pröstler, 290.

1220 For everything Moses, International Commercial Arbitration, 183; Rohner, 68.

1221 See for example art. 37 DIS Rules; art. 2.2 Appendix III ICC Rules.

One case where this applies is that of non-compliance with the time limit for rendering the award. Thus, a belated rendering of the final award may well give rise to a reduction of the tribunal's fees.**1222**

In addition to this sanction, the tribunal may become liable for damages to the parties for a violation of the contract between itself and the parties. Yet, as already pointed above in para. 230, such contractual liability is sub-r ject to various hurdles. For instance, the tribunal could be exempt from liability based on a provision in the rules. Moreover, an aggrieved party would need to prove that it actually suffered a damage due to the violation of contract, and it would need to be examined whether the tribunal was actually at fault or whether the delay was exclusively the consequence of a party's dilatory tactics. 771

#### **3.2 For the Parties**

In the absence of express agreements on the duty to an efficient conduct of an arbitration, it seems that the parties cannot be directly held accountable if they do not arbitrate efficiently, which may ultimately lead to a belated rendering of an award. In particular, it appears that the general duty to cooperate or arbitrate in good faith, as enshrined in arbitration rules, is a not sufficient basis for establishing a contractual liability.**1223** Provisions of this sort are either too vague or cannot be understood as imposing such liability.**1224** 772

What seems possible, though, is an extra-contractual liability based on art. 41 CO. According to this provision, any person who wilfully or negligently causes damage to another unlawfully is liable to provide compensation (para. 1), and a person who wilfully causes damage to another in an immoral manner is liable to provide compensation as well (para. 2). A liability under para. 1 of the provision for purely financial damages requires the existence of a statutory provision that is supposed to specifically protect another person precisely from damages that this person suffered (so-called protective provision).**1225** Under Swiss law, no such provision seems to exist for the conduct of arbitration proceedings. Yet it is accepted in Swiss legal doctrine and writing that an abusive exercise of procedural rights in litigation proceedings may give rise to a damage claim due to an action in immoral manner.**1226** 773

1222 For everything Sachs/Pröstler, 291–293.

1223 See above paras. 192–212.

1224 Cf. Fry/Greenberg/Mazza, para. 3.1537.

1225 DFT 141 III 527 c. 3.2; Huguenin, para. 1951.

1226 Judgment of the Swiss Federal Tribunal no. 4C.353/2002 of 3 March 2003, c. 5.1; BK ZPO I and II-Sterchi, art. 52 para. 74; BSK ZPO-Gehri, art. 52 para. 17 (though not expressly referring to para. 2 of art. 41 CO); Schnyder/Portmann/Müller-Chen, para. 170.

#### **4. Evaluation**

778

A different evaluation may result, however, when the institution extends the time limit after the conclusion of the proceedings, i.e., for the phase of drafting and rendering the final award. While there may be legitimate reasons to occasionally extend the time limit at this stage of the arbitration, this possibility provides an incentive for arbitrators to not give the highest priority to the expedient drafting and rendering of the final award. This risk may, eventually, prevent an increase in the efficiency of the process.

1227 See above para. 771.

1228 Happ, Chapter 2.07, in: Flecke-Giammarco/Boog/Elsing/Heckel/Meier, para. 12; Lenggenhager, ICC Rules, Article 31, in: Arroyo, para. 12; Ragnwaldh/Andersson/ Salinas Quero, 136; Webster/Bühler, art. 31.16.

Depending on the stage of the arbitration at which the time extension takes place, the measure of time limits is only a partial remedy to the problems that have led to an increased demand for expedited procedures. Where the extension occurs while the proceedings are still ongoing, the institution that grants the extension must take into account both the conduct of the proceedings by the tribunal and the conduct of the parties. At this stage, factors like due process paranoia, misuse of party autonomy, or increased judicialisation may be relevant and may even have contributed to the length of the proceedings. If, however, the extension occurs after the closure of the proceedings, the aforementioned factors are not directly relevant. Instead, it will be the tribunal's expedience in drafting and rendering the award that is primarily decisive. 779

# **III. Summarily Reasoned and Unreasoned Awards**

#### **1. Overview**

**1.1 Expedited Procedures**

Many expedited procedure rules contain special provisions regarding the reasons included in the award. The majority contain terms to the effect that a tribunal shall include summary reasons in the award, unless the parties have agreed on no reasons at all.**1230** As an alternative, the SCC Expedited Rules require the tribunal to include reasons only if a party asks for it,**1231** whereas under the AIAC Rules, the tribunal has to render a fully reasoned award.**1232** 780

In contrast to these express provisions, other rules do not contain any special terms compared to the ordinary procedures under these rules. Examples include the ICC Rules**1233** and the DIS Rules.**1234** 781

#### **1.2 Ordinary Procedures**

Under ordinary procedures, the tribunal must usually render a fully reasoned award, unless the parties have agreed otherwise.**1235** 782

1231 Article 42.1 SCC Expedited Rules.

1232 Rule 8.12 in connection with Rule 33.5 AIAC Rules.

1233 Cf. Appendix VI ICC Rules.

1234 Cf. art. 5 Annex 4 DIS Rules.

1230 Article 42.2(g) HKIAC Rules; art. 21.3(d) JAMS International Rules; art. 48.2 KCAB Inter-C national Rules; art. 5.2(e) SIAC Rules; art. 41.2(f) Swiss Rules.

1235 Article 39.1(ii) DIS Rules; art. 35.4 HKIAC Rules; art. 32.2 ICC Rules; art. 34.2 JAMS International Rules; art. 32.4 SIAC Rules; art. 42.1 SCC Rules; art. 34.3 Swiss Rules; art. 36.1 VIAC Rules.

#### **2. Right to Be Heard**

According to the constant jurisprudence of the Swiss Federal Tribunal, the right to be heard in arbitration does not include the right to a reasoned decision,**1236** although the court has required (at least in earlier decisions) that the arbitrators have a minimum duty to assess the arguments relevant to the outcome of the case.**1237** While the parties have a right to the tribunal hearing and assessing their arguments in contradictory proceedings, the rendering of an award is not a contradictory proceeding. Therefore, there is no need for the tribunal to include reasons in the award.**1238** Similarly, the parties can agree *ex ante* that the tribunal does not have to render a reasoned award.**1239** Hence, an unreasoned or summarily reasoned award is compatible with the parties' right to be heard under Swiss law, although some authors have criticised the Swiss Federal Tribunal's approach.**1240** 783

#### **3. Evaluation**

The idea of limiting extensive reasoning of awards as a way to increase the efficiency of the proceedings is neither particularly new nor confined to expedited proceedings. Practitioners have repeatedly advocated for a limitation of reasons of awards, as most succinctly put by Kaplan: *'[a]wards are not intended to be PhD theses'.***1241** Indeed, it may often be enough for the parties to know why they have lost or won a case on the merits.**1242** This may be especially true in industries that continue to see arbitration as a quick and easy form of dispute resolution.**1243** 784

1241 Kaplan, The Arbitrator and the Arbitration Procedure, 105; cf. further Latzel, para. 28.

1243 For example the commodity (trading) industry, see Latzel, para. 27; Trabaldo-de Mestral, Arbitrating Commodity Trading, Shipping and Related Disputes, in: Arroyo, para. 3.

1236 DFT 134 III 186 c. 6.1; 133 III 235 c. 5.2; 130 III 125 c. 2.2; 128 III 234 c. 4b; decisions Swiss Federal Tribunal no. 4A\_54/2015 of 17 August 2015 c. 4.1; no. 4A\_178/2014 of 11 June 2014 c. 5.1; this contrasts to a certain extent with art. 189 para. 2 Swiss PILA, which requires the award to be reasoned. Yet, according to art. 189 para. 1 Swiss PILA, the award needs to be in the form agreed by the parties. Hence, if the parties agree on arbitral rules providing for a limitation of reasons, the tribunal may rely on this agreement, see Latzel, para. 5.

1237 Decision Swiss Federal Tribunal no. 4A\_669/2012 of 17 April 2013 c. 3.2.1; cf. further Latzel, para. 62.

1238 For everything BSK IPRG-Pfisterer, art. 190 para. 77.

1239 BSK IPRG-Wirth/Magliana, art. 189 para. 42; Giovannini, Reasoning, 89; Latzel, 25.

1240 Girsberger/Voser, para. 1524; Göksu, para. 1676; Latzel, para. 59.

1242 Kaplan, The Arbitrator and the Arbitration Procedure, 105; cf. further Giovannini, Reasoning, 89; Strong, 47.

Nevertheless, considering reasoned awards to be unnecessary or even an obstacle does not seem correct. Reasons may be important when a party applies for a setting aside of the award, which is particularly pertinent for reasons relating to the jurisdiction of the tribunal because a setting aside for lack of jurisdiction is possible, whereas a setting aside due to an incorrect decision on the merits is usually not possible,**1244** Furthermore, reasons may help to counter arguments that an award was contrary to the public policy of a jurisdiction.**1245** Lastly, also with a view to transnational enforcement, a well-reasoned award may prevent arguments against the validity of the arbitral process in a foreign jurisdiction.**1246** 785

Apart from these specific effects of reasoned awards on withstanding judicial review, another benefit of reasoned awards is that they may improve the overall quality of the decision. The justification is that the tribunal will be aware that the parties will see its reasoning. This may motivate and discipline the tribunal to reach a transparent and comprehensible decision.**1247** 786

As a result of these considerations, it is argued that a limitation of reasons may without doubt increase the efficiency of the arbitral process. Yet, at least summary reasons may be helpful to either avoid setting aside and enforcement proceedings altogether or at least facilitate such proceedings, ultimately shortening the process for legal protection as a result of arbitration. Accordingly, it is submitted that the institutional rules that require summary reasons represent a sensible middle ground. 787

The possibility of a completely unreasoned award should, however, not be dismissed either. This option may further increase the efficiency of the arbitral proceedings, although it may also, in certain cases, make the defence of the party that prevailed in the arbitration (the award creditor) in subsequent setting aside and enforcement proceedings more difficult and time-consuming. Especially, where the parties have validly waived the right to have the award set aside, unreasoned awards may prove useful.**1248** 788

In any event, regardless of the benefits and challenges of this feature, the limiting or complete exclusion of reasons in awards is an interesting aspect of 789

1248 For everything Latzel, para. 64. For the sake of completeness, the agreement on an unreasoned award must be differentiated from a waiver to have the award set aside; cf. Berger/Kellerhals, para. 1487.

expedited procedures. Unlike previously examined measures, this feature is not aimed against an unwise use of party autonomy or guerrilla tactics. Instead, it focuses on the arbitrators and the additional time required by the arbitrators to finalise a reasoned award. Therefore, this measure does not primarily focus on the commonly identified reasons for longer and more expensive proceedings. Yet it can be seen in the wider context of judicialisation: as pointed out by Kaplan, awards used to be much shorter but have evolved over time to resemble court judgments, including extensive reasons.**1249** Reducing the amount of reasons required in an award may be a reasonable option to limit the effects of such judicialisation where it is of no added value.

# **IV. Costs**

The closure of the proceedings and rendering of the award is also the ordinary point in time for the determination of the costs of the arbitration. These include the costs that the parties owe as determined by the tribunal in an award (see below sub-section 1), the costs that the parties owe as determined by the arbitral institution, i.e. administrative fees (see below sub-section 2), and the fees that the arbitrators receive for their work (see below sub-section 3). 790

#### **1. Costs Determined by the Tribunal in an Award**

In the (final) award, the tribunal will ordinarily determine to what extent one party has to pay the costs incurred by the other party in the arbitration (provided it has not done so already).**1250** Absent a party agreement, tribunals will generally rule that the losing party has to pay (a share of) the costs that the prevailing party incurred.**1251** Ordinarily, expedited procedures have no effect on this practice. 791

792

As mentioned earlier, the tribunal may, independently of the outcome of the proceedings, sanction dilatory tactics of the parties by imposing costs caused by these tactics.**1252** The tribunal's right to impose such cost sanctions exists irrespective of the type of procedure, i.e., ordinary or expedited. However, it is debatable whether a tribunal should be stricter in imposing cost sanctions for behaviour resulting in delays in expedited procedures as com-

1249 Kaplan, The Arbitrator and the Arbitration Procedure, 105; see for a detailed data analysis Dasser/Igbokwe, 293–294.

1250 Cf. Blackaby/Partasides/Redfern/Hunter, para. 9.95; art. 38 Swiss Rules.

1251 Born, Law and Practice, 356–359.

1252 See above paras. 471 and 567.

pared to ordinary procedures. According to the view submitted in this thesis, the standard for imposing cost sanctions should be the same irrespective of the procedure. A deliberate obstructive action resulting in delay and extra costs is not more egregious and thus more sanction-worthy just because it occurred under expedited procedures.

#### **2. Administrative Fees**

The arbitral institution will also upon the rendering of the award decide on its administrative fees, although in practice the institutions usually demand advance payments from the parties already during the proceedings in the amount of the presumable administrative fees.**1253** Some rules provide for lower administrative fees when an arbitration is subject to expedited procedures as compared to ordinary procedures.**1254** Other rules, however, provide for the same fee scales.**1255** Unlike with the arbitrator fees,**1256** it is submitted that the reduced fees in expedited procedures are reasonable because the institution will not be under increased pressure under expedited procedures and the, on average, lower amounts in dispute justify a (slight) reduction of the administrative fees. 793

#### **3. Arbitrator Fees**

At the end of the proceedings, the institution will also determine the final arbitrator fees.**1257** Certain institutional rules provide for lower fees of the arbitral tribunal under expedited procedures in comparison to ordinary procedures.**1258** 794

Reducing the fees of the arbitrators apparently is a reasonable means for reducing the costs of the proceedings. Yet the previously discussed preference for a sole arbitrator over a three-member tribunal may be even more cost-effective.**1259** Furthermore, and as already mentioned, the fees of the 795

arbitrators are often lower than the fees for party representation. Hence, the overall effect of a reduced fee for the arbitrators is limited.

	- Finally, and as previously described, some institutions retain the right to reduce the fees of the tribunal, *inter alia* in order to sanction an inefficient conduct of the proceedings.**1262** While the details of this mechanism depend on the respective institutional rules, it can be said at this point that a sanctioning of the tribunal should *not automatically* occur where a tribunal has to ask for a time extension for rendering the final award. On the contrary, a case-bycase assessment of the conduct of the arbitral proceedings is necessary for determining whether the tribunal should have acted more efficiently.

# **V. Conclusion**

The two most salient features of expedited procedures affecting awards, namely time limits and a limitation on the degree of reasons required, are both relevant under ordinary procedures as well. As such, these features are not truly revolutionary. Nevertheless, both may be beneficial for shortening the overall time of the proceedings even though they only become relevant at the very end of the arbitral process. Finally, expedited procedures lead to some peculiarities in the determination of the costs of the arbitral proceedings, although the effect of expedited procedures on this aspect is limited. 798

797

1260 Also critical Webster/Bühler, para. 30.17, who point out that in expedited ICC arbitrations, the sole arbitrator will at least not have to draft terms of reference; yet this does not warrant a fee reduction.

1261 For everything Bühler/Heitzmann, 144.

1262 See above para. 770.

# **Chapter 13 Setting Aside and Enforcement Proceedings**

The rendering of an award may mark the end of the arbitral proceedings but not necessarily the end of the legal proceedings concerning the underlying dispute. On the contrary, the award may be subject to judicial review by state courts in setting aside and enforcement proceedings when the award debtor opposes the binding legal effect of an award. This may be relevant for any type of arbitral proceedings but is of particular importance for awards rendered in expedited proceedings. Accordingly, this chapter will examine the subject of setting aside and enforcement proceedings in more detail. The scope of this chapter is limited to issues that are of special relevance under expedited procedures. 799

After analysing the relevant legal framework and defining the scope of ana–lysis (below section I), this chapter will analyse the setting aside (below section II) and enforcement of (foreign) awards rendered under expedited procedures (below section III). 800

## **I. Relevant Legal Framework and Scope of Analysis**

#### **1. General Considerations**

According to the modern understanding of arbitration, only the courts at the seat of arbitration are competent to review the validity of an award in setting aside proceedings. Therefore, the legal provisions of the seat of arbitration determine if and how an award may be set aside.**1263** 801

For the enforcement of awards, one must distinguish between the enforcement of awards in the jurisdiction that already served as the seat of arbitration (domestic enforcement)**1264** and the enforcement of awards that were 802

1263 For everything Greenberg/Kee/Weeramantry, para. 9.22; Hill, 167; cf. further art. 34 UNCITRAL ML.

1264 See for Switzerland merely art. 193 Swiss PILA; for Germany art. 1060 German CPC; in general Landbrecht/Wehowsky, 683.

rendered in another jurisdiction (transnational enforcement).**1265** The relevant legal framework is always the one belonging to the jurisdiction where the award creditor seeks enforcement of the award.

803

The provisions on domestic enforcement differ, ranging from no particular provisions at all**1266** to a reference to the NYC**1267** or specific rules.**1268** For the international enforcement of awards, most jurisdictions have not enacted any specific provisions but usually only reference the NYC.**1269**

So far, it does not appear that any jurisdiction has adopted provisions on the setting aside and refusal of enforcement of awards that specifically apply to awards rendered under expedited procedures. Consequently, the relevant legal framework for both setting aside and enforcement of awards is not different from the one applicable to awards rendered in ordinary procedures. 804

#### **2. The Swiss Legal Framework**

According to art. 190 para. 2 Swiss PILA, an award may be set aside if the sole arbitrator was not properly appointed or the arbitral tribunal was not properly constituted (lit. a), the arbitral tribunal incorrectly accepted or declined jurisdiction (lit. b), the arbitral tribunal's decision went beyond the claims submitted to it or failed to decide one of the items of the claim (lit. c), the principle of equal treatment of the parties or the right of the parties to be heard was violated (lit. d), or the award is incompatible with public policy (lit. e).

For the international enforcement of awards rendered in a jurisdiction other than Switzerland (foreign awards), art. 194 Swiss PILA declares the NYC applicable. According to the NYC, a jurisdiction where enforcement of an award is sought may, upon the request of the party against whom enforcement is sought, refuse enforcement if the parties have not concluded a valid arbitration agreement (art. V para. 1 lit. a), the party against whom enforcement is sought was unable to present its case (art. V para. 1 lit. b), the award deals with 807

1267 For example art. 194 Swiss PILA.

1268 See for Germany art. 1060 German CPC; section 84 Hong Kong AO.

1269 Cf. for an overview Landbrecht/Wehowsky, 688–689.

1265 See for Switzerland art. 194 Swiss PILA; in general Landbrecht/Wehowsky, 684.

1266 Which is essentially the case in Switzerland, cf. Landbrecht/Wehowsky, 688–689.

a difference not contemplated by or not falling within the terms of the submission to arbitration (art. V para. 1 lit. c), the composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place (art. V para. 1 lit. d), the award has not yet become binding on the parties or has been set aside (art. V para. 1 lit. e). In addition, the jurisdiction where enforcement is sought may *ex officio* refuse enforcement of the award if the subject matter of the dispute is not capable of settlement by arbitration (art. V para. 2 lit. a) or recognition or enforcement of the award would be contrary to the public policy of that country (art. V para. 2 lit. b). These grounds for refusing the enforcement of an award under the NYC largely coincide with the grounds set out in art. 190 Swiss PILA, which is why reference will be made in appropriate cases to the NYC and *vice versa.*

It is important to note that challenging the binding force of awards in Switzerland is difficult regardless of whether a defence against an award is sought in setting aside or enforcement proceedings. The Swiss Federal Tribunal adopts a very strict approach towards applications to have an award set aside, with only a small percentage of applications being successful.**1270** Similarly, the NYC has been said to follow a pro-enforcement regime to which Switzerland is committed.**1271** 808

#### **3. Scope of Analysis**

The ensuing analysis will address issues that are particularly relevant for the potential setting aside and enforcement of awards rendered under expedited procedures. Within the analysis, the focus will be on an examination of specific grounds for setting aside an award and refusing its enforcement. The grounds include defects in the constitution of the tribunal (below paras. 810– 812 and 836–839), a lack of jurisdiction (below paras. 813–815 and 830), violations of due process rights and agreed-upon procedures (below paras. 816–819 and 831–835), as well as violations of public policy (below paras. 820–822 and 840– 841). Moreover, this analysis extends to certain additional factors like waivers where this is necessary for a comprehensive analysis. What this analysis will not cover, however, are general issues of setting aside and enforcement proceedings, including the procedure. 809

1270 For everything Hofbauer, History of Arbitration, in: Arroyo, para. 27, with reference to Dasser/Wójtowicz, 277–280.

1271 Borris/Hennecke, in: Wolff, NYC, art. V para. 5; decision Swiss Federal Tribunal no. 5A\_409/2014 of 15 September 2014 c. 5.2–5.3; Bühler/Cartier, 12 PILS, Article 194, in: Arroyo, para. 118.

# **II. Setting Aside of Awards**

#### **1. Relevant Grounds for Setting Aside**

812

This setting aside ground is of formal nature, which means that the Swiss Federal Tribunal will set aside the award regardless of whether it affected the outcome of the proceedings or not.**1273** However, it is possible for a party to forfeit the defect if said party does not oppose the appointment of a sole arbitrator after this party was made aware of the defect. Without such prompt objection, the same party cannot subsequently successfully rely on this defect.**1274**

#### **1.2 The Tribunal Incorrectly Assumed or Denied Jurisdiction (art. 190 para. 2 lit. b Swiss PILA)**

The second ground for setting aside comprises several reasons based on which a tribunal incorrectly assumes or denies jurisdiction. These reasons include a lack of consent to arbitration, a lack of objective arbitrability, a lack of capacity to enter into an arbitration agreement, as well as a rendering of the award after the termination of the arbitrators' mandate.**1275** At first glance, this ground for setting aside could be relevant in case a tribunal accepts or 813

1272 For everything DFT 139 III 511 c. 4; Arroyo, 12 PILS, Article 190, in: Arroyo, paras. 18–19; Berger/Kellerhals, paras. 1706–1707.

1273 DFT 136 III 605 c. 3.3.2; Berger/Kellerhals, para. 1710; ZK IPRG-Oetiker, art. 190 para. 39.

1274 For everything DFT 126 III 249 c. 3c–3d; Kaufmann-Kohler/Rigozzi, para. 8.135.

1275 For everything decision Swiss Federal Tribunal no. 4A\_310/2016 of 6 October 2016 c. 3.1; BSK IPRG-Pfisterer, art. 190, para. 41; Göksu, 2049.

denies jurisdiction based on a decision (not) to apply expedited procedures, or in case a tribunal fails to render an award within the deadline to do so.

However, a closer examination of the various elements of this ground for setting aside reveals that this ground is of little relevance to expedited procedures based on the analysis above. As has been established, the choice of expedited procedures is a procedural agreement rather than a jurisdictional one.**1276** Accordingly, when the tribunal incorrectly employs expedited procedures instead of ordinary ones, the ensuing award cannot be challenged for a lack of jurisdiction of the tribunal. 814

By the same token, as has been shown above in paras. 763–768, a time limit for the rendering of the final award in institutional rules is not supposed to limit the arbitrator's mandate but rather constitutes only a procedural rule. Consequently, a final award rendered after the lapse of this limit cannot, based on this delay, be successfully challenged for a lack of jurisdiction *ratione temporis.* 815

#### **1.3 Violation of the Right to Equal Treatment and the Right to Be Heard (art. 190 para. 2 lit. d Swiss PILA)**

An award may be set aside for a failure to respect the parties' right to equal treatment and to be heard in an adversary procedure as specifically enumerated in art. 190 para. 2 lit. d Swiss PILA. The contents of these rights have been discussed in detail above in paras. 284–292. Based on the specific enumeration, the Swiss Federal Tribunal has concluded that other procedural decisions of the tribunal that do not amount to a violation of the right to equal treatment and to be heard, such as a mere deviation from the agreed arbitral procedure, do not justify a setting aside of the award.**1277** Consequently, if a tribunal disregards a specific agreement by the parties or provision in the arbitral rules as to the conduct of the arbitration, this decision does not justify a setting aside of the award as long as it did not violate the parties' right to equal treatment and to be heard.**1278** 816

Similarly to a defective composition of the tribunal, a violation of the parties' right to equal treatment and to be heard may be forfeited. If a party does not promptly object to the violation towards the tribunal, said party may no longer rely on this defect in setting aside proceedings.**1279** 817

#### **1.4 The Award Is Incompatible with Public Policy (art. 190 para. 2 lit. e Swiss PILA)**

Whereas the previously discussed grounds concern the procedure of the arbitration, an incompatibility with public policy at least partially concerns the outcome of the case, i.e., the merits. An arbitral award is incompatible with public policy if the result of the award (not just its reasoning) disregards the fundamental legal or moral concepts that apply in all civilised nations.**1285**The Swiss Federal Tribunal has clarified that art. 190 para. 2 lit. e Swiss PILA is not limited to a specific form of Swiss public policy but rather extends to the concept of universal transnational public policy. This includes principles of *pacta sunt servanda,* the principle of good faith, the prohibition of an abuse of rights, as well as a prohibition of discrimination.**1286** 820

In addition to this substantive aspect, the Swiss Federal Tribunal further clarified that the concept of public policy also includes procedural public policy.**1287** A prominent element of this aspect includes the principle of *res judicata.***1288** The court also held that the right to a fair tribunal is part of procedural public policy.**1289** Furthermore, the Swiss Federal Tribunal concluded that the 'right to a fair' trial was an additional aspect. Yet, it is unclear what this aspect consists of in addition to the specific procedural grounds listed in the other provisions of art. 190 para. 2 Swiss PILA.**1290** 821

Expedited procedures themselves should not give rise to pleas of a violation of substantive public policy. However, as observed by other commentators, procedural measures increasing the efficiency of the proceedings and deviating from the norm may prompt concerns of procedural public policy.**1291** Thus, it is conceivable that expedited procedures might be found to be incompatible with the concept of a fair trial. Yet, it seems highly unlikely that the features of expedited procedures described in this thesis generally qualify as violations of a fair trial. The Swiss Federal Tribunal has rarely had to decide on awards rendered under expedited procedures and, so far, has not given any indication that it treats these awards any differently or that such awards may be particularly susceptible to violating procedural public policy.**1292** As a result, it is difficult to see how expedited procedures in general may violate procedural public policy. 822

#### **2. Ground(s) of No Particular Relevance**

Rulings of the tribunal that are not in accordance with the claims submitted to it (art. 190 para. 2 lit. c Swiss PILA) are of little relevance in the context of expedited procedures. It goes without saying that this defect may be relevant in setting aside and enforcement proceedings concerning awards that were rendered under expedited procedures. However, this relevance will hardly stem from the type of procedure that led to the rendering of the award but rather from other factors. As a result, these points will not be addressed in this analysis. 823

1292 Cf. for everything decisions Swiss Federal Tribunal no. 4A\_188/2016 of 11 January 2017; 4A\_544/2014 of 24 February 2015; 4A\_294/2008 of 28 October 2008.

#### **3. Waiver**

In order to avoid setting aside proceedings altogether, the parties may also waive their right to seek setting aside in Switzerland. They may either do so before (*ex ante* waiver) or after the notification of the award (*ex post* waiver). Waiving the right to a setting aside of the award may significantly increase the efficiency of the overall dispute resolution because it may eliminate at least one further proceeding.**1293** These waivers raise some additional questions, however. Insofar as these questions are relevant for expedited procedures, they will be analysed in the following sub-section. 824

#### **3.1 Ex Ante Waiver**

Article 192 Swiss PILA contains the possibility of an *ex ante* waiver of a setting aside of the award. According to this provision, if none of the parties have their domicile, their habitual residence, or a business establishment in Switzerland, they may, by an express statement in the arbitration agreement or by a subsequent written agreement, fully waive their right to request a setting aside. Alternatively, they may limit this right to one or several of the grounds listed in art. 192 para. 2 Swiss PILA (para. 1). If the parties have agreed on such a full waiver, and if the award is to be enforced in Switzerland, the NYC applies by analogy (para. 2). 825

826

The waiver may either be included in the arbitration agreement or form a separate agreement. Regardless of the vessel, the waiver needs to be in writing and express. The meaning of 'express' has been the subject of debate. However, it is clear nowadays that the parties do not have to specifically reference art. 192 Swiss PILA and declare to waive the right to the setting aside of the award. Rather, it suffices if the parties record their common intention to waive any remedy at the seat of arbitration against the award.**1294** This standard is not met when the parties merely agree on arbitration rules that contain provisions for general waivers of a recourse against the award.**1295** By the same token, the mere fact that the parties express a desire for an efficient dispute resolution, be it by agreeing on expedited procedures or on other tools for accelerating the proceedings, does not suffice in order to affirm the existence of such a waiver.

1294 For everything Bratic, 107; DFT 143 III 55 c. 3.3–3.4; 134 III 260 c. 3.1.

1295 See for example decision Swiss Federal Tribunal no. 4A\_93/2013 of 29 October 2013 c. 3; 4A\_18/2007 of 6 June 2007 c. 3.2; 4P.62/2004 of 1 December 2004 c. 1.2; see for an example of such a provision art. 40 ICC Rules.