It is a truly exciting time for the world of dispute resolution, in which video-conferencing technology and the emergence of sharpened procedural tools – among other factors – have greatly increased the potential for achieving efficiency in arbitration and mediation. Within this context, in my last post, I shared advice for parties and arbitrators wishing to deploy increasingly feasible cost- and time- saving strategies, without sacrificing due process or the enforceability of their awards.
As a follow-up, this piece explores one of the factors making increased efficiencies possible: arbitration institutions are modifying their rules to include streamlined procedures designed to save parties both time and money. And a recent change to the U.N. Commission on International Trade Law’s (UNCITRAL) rules both embodies and lends force to this very exciting trend.
Arbitration Institutions’ Rules Are Changing to Embrace Greater Efficiency
Over the course of recent years, a growing number of organizations have embraced the implementation of “fast-track” rules whereby parties may either choose, or default into, expedited arbitration procedures. You may visit the linked information below for a sampling of these institutional procedures:
ICC (in Article 30 of the Rules of Arbitration; see also ICC Arbitration Commission Report on Techniques for Controlling Time and Costs in Arbitration
Singapore International Arbitration Centre (SIAC) (Rule 5)
Spotlight: the UNCITRAL Expedited Arbitration Rules
The most recent – and one of the most dramatic – of the developments following this trend occurred over the summer, when UNCITRAL ratified its new Expedited Arbitration Rules. The new “Expedited Rules” came into effect on September 19, 2021. They are the product of a working group that the U.N. General Assembly formed in 2018,[i] and they provide parties in arbitration with the opportunity to agree to a more streamlined and faster process.
The highlights of UNCITRAL’s new Expedited Rules include:
15-Day Time Limits – down from 30 days in the regular rules.
First: “Unless otherwise agreed by the parties,” by default there will be only one arbitrator, and the parties have 15 days to select this person before the “appointing authority” steps in. (And according to data from the American Arbitration Association, electing a single arbitrator rather than a panel of three can reduce arbitrator compensation costs by 72%.[ii])
Second: The respondent must reply to the claimant within 15 days of receipt of the notice of arbitration and must provide a statement of defense within 15 days of the constitution of the arbitral tribunal.
Third: Within 15 days of the tribunal’s constitution, it must hold a case management conference with the parties.
The tribunal may hold remote hearings. During, and even after, a pandemic, this is safer and more affordable than convening parties who (may) have traveled from afar.
A final award must be rendered within six months of the date of the constitution of the arbitral tribunal. A tribunal may extend the time, but under the Expedited Rules the “extended period of time shall not exceed a total of nine months[.]”
There is no threshold amount required; the dispute may be worth any quantity for the Expedited Rules to apply.
The tribunal may forego a hearing entirely, if the documentary evidence is sufficient, unless a hearing is requested by the parties.
Who should include these Expedited Rules (or similar) in their agreements?
Any ad hoc parties – or those whose arbitration clauses selected the UNCITRAL rules – who are involved in straightforward disputes and who can agree on prioritizing speed. UNCITRAL’s Expedited Rules are bold in that they empower tribunals to act almost as project managers, able to move parties in arbitration smoothly along a transparent and quick timeline, with minimal delays or superfluous discovery. And while clear and frequent procedural deadlines mean that a dispute will be resolved quickly, the requirement that parties proactively agree to proceed in this manner – rather than default into it because of their amount in controversy or some other metric – means that award enforceability won’t be put at risk because the speed raises due process concerns. This is really what makes the Expedited Rules such an exciting development.
Note: Although the Expedited Rules are flexible in cases where parties want more time (“[a]t any time during the proceedings, the parties may agree that the Expedited Rules no longer apply[.]”), disputes in which there are more than two parties involved, those requiring many witnesses, experts, or heavy document discovery, and/or those dealing with extremely complex issues that will not foreseeably be resolved in six months, will likely be resolved less efficiently if parties select the Expedited Rules at the outset and then have to switch back to a standard process.
Conclusion
More than almost any other consideration, parties to arbitration care about reducing their costs and minimizing time spent resolving their disputes.[iii] UNCITRAL’s new rules – and the field’s increased efforts overall to reduce the duration and cost of arbitration – have gone a long way towards meeting parties’ needs for efficiency. Those parties who find themselves in a straightforward ad hoc dispute, and who can agree that the dispute should be resolved quickly, stand to benefit greatly from proceeding under these Expedited Rules.
Note:
Special thanks to Gloria J. Medina for her assistance in researching the writing this piece.
Resources cited:
[i] UNCITRAL Adopts Expedited Arbitration Rules, CPR Speaks, https://blog.cpradr.org/2021/07/29/uncitral-adopts-expedited-arbitration-rules/ (last visited Dec. 13, 2021) (citing Report of Working Group II, UN General Assembly, https://undocs.org/en/A/CN.9/934). [ii] Commercial Arbitration: Understand and Control Your Arbitration Costs, AAA, (last visited Dec. 13, 2021). [iii] Queen Mary, University of London, Improvements and Innovations in International Arbitration 11 (2015), http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf.