Expedited Procedure as a Trend in the Development of International Commercial Arbitration

One of the key directions in the development of international commercial arbitration is, without exaggeration, the introduction and application of expedited procedures at institutional level. UNCITRAL has been working on the harmonization of the relevant rules for several years. Many arbitration tribunals around the world have provided for separate regulation of cutbacks in response to the growing business need for fast and efficient proceedings even before the outbreak of the COVID-19 pandemic. The global quarantine has significantly updated the choice by counterparties of accelerated arbitration as the optimal procedural form. In the sphere of influence of these trends is the figure of an expert, whose participation in the process of resolving an arbitration dispute acquires its own specifics.

Expedited arbitration rules can be enshrined in the general rules (AAA Arbitration Rules, ICC Arbitration Rules, CIETAC Arbitration Rules, HKIAC Arbitration Rules, SIAC Arbitration Rules, ICAC Rules at the Ukrainian CCI, Swiss International Arbitration Rules, Vienna Rules, etc.) or as a separate document (SCC Expedited Arbitration Rules 2017, AIAC Expedited Arbitration Rules 2018, ACICA Expedited Arbitration Rules 2016, etc.). Some rules do not contain specific rules for expedited procedure at all (for example, the London International Arbitration Court has a general duty to ensure due process, which includes avoiding unreasonable delays or costs under Article 14.4 (ii) of the LCIA Arbitration Rules).

The distinctive characteristics of expedited arbitration are the special conditions for its application, the sole consideration of the dispute, the reduction of various procedural terms, the change or absence of certain procedural stages, and the reduction of arbitration costs. A special form of expedited proceedings is documents-only arbitration, in which hearings are not held.

The generally valid conditions for the application of the accelerated procedure should be recognized as the consent of the parties, the cost of the dispute, as well as exceptional urgency. The rules of arbitration institutions contain different approaches to the definition of such conditions.

Thus, the Vienna Rules and the new edition of the ICAC Rules at the Ukrainian Chamber of Commerce and Industry are limited only by the consent of the parties to the application of an expedited procedure. A multiple criterion, each of the elements of which provides for the application of expedited arbitration, is used, i.e., in Article 30 ICC Rules, Article 5.1. SIAC Rules, Article 42.1 of the HKIAC Rules, Article 42 Swiss Rules. For example, according to Article 30 of the ICC Arbitration Rules, the provisions on the expedited procedure apply if the amount of the dispute does not exceed USD 2 million (in the case of the conclusion of the arbitration agreement on 1 March 2017 or after this date, but before 1 March 2021) or USD 3 million (in the case of conclusion of the arbitration agreement on or after that date), or if the parties agree to apply the expedited procedure.

An essential feature of expedited arbitration is the rule of a single arbitrator. In particular, Article 45 Vienna Rules, Article 42 Swiss Rules, Part 6 of Article 45 of the ICAC Rules at the Ukrainian Chamber of Commerce and Industry establish the presumption of dispute resolution by one arbitrator if the parties have not agreed on a peer review. Part 1 of Article 2 of Annex VI of the ICC Rules permits the arbitral tribunal to appoint a sole arbitrator, bypassing the agreement of the parties. The imperative requirement of Article 17 SCC Expedited Arbitration Rules states that a dispute must be resolved by a sole Arbitrator.

When considering expedited arbitration, it is difficult to overestimate the importance of shortening procedural terms. This procedural feature especially attracts international business, seeking efficiency and speed in protecting their property interests. It is noteworthy that the issue here is the possibility of a significant reduction in all procedural terms (appointment of an arbitrator, filing a response to a claim and other written statements, holding hearings, making an arbitral award). In this context, the most important thing for the parties is to shorten the term for making an arbitral award. A six-month period for making a final decision, which is calculated from the date of transfer of the case, is given to the court in accordance with Part 8 of Article 45 Vienna Rules, paragraph (d) part 1 of Article 42 of Swiss Rules. A three-month period (instead of six months in accordance with the general procedure) is provided for by Article 43 of the SCC Expedited Arbitration Rules. The new edition of the ICAC Rules at the Ukrainian Chamber of Commerce and Industry in Part 7 of Article 45 contains a rule on a twenty-day period for making a decision, which is calculated from the date of completion of the hearing of the case (the total period for consideration of a case is 6 months).

The question of the expert’s role in expedited arbitration is closely related to the general characteristic of it. Changes in the process of providing evidence and shortening the stages of proceedings inevitably affect this participant in the process. As you know, the most important form of expert assistance is his/her participation in the hearing, during which, as a rule, cross-examination of experts is carried out on the basis of submitted written opinions.

However, the restriction on the holding of hearings is one of the main features of expedited arbitration. Support for this understanding has been voiced repeatedly by UNCITRAL Working Group II during preparation of the draft of expedited arbitration rules. The general approval of Working Group II (Dispute Resolution) also received a proposal to clarify that the court should have discretion to restrict the provision of documents and cross-examination of facts and interviews of expert witnesses. The Note by the Secretariat dated 13 January 2020, containing the Draft Provisions on Expedited Arbitration, proposes the provision of written expert testimony as a general rule. At the recently announced 73rd session of UNCITRAL Working Group II, which was scheduled for 22-26 March 2021, it was planned to continue work on the Project precisely on the basis of the above Note by the Secretariat.

The approach developed by the Working Group follows in the wake of the previously formulated and enshrined rules of individual arbitrations. Thus, according to Part 1 of Article 33 of the SCC Expedited Arbitration Rules, a hearing will only be held if one of the parties requests it and if the Arbitrator considers the reasons for such a request to be compelling. The rule of paragraph (c) part 1 of Article 42 of Swiss Rules stipulates that the arbitral tribunal holds the only hearing during which it hears witnesses and experts, as well as the oral statements of the parties, unless the parties have agreed that the dispute should be resolved solely on the basis of written evidence.

Thus, the expert’s participation in the expedited procedure may be limited to the provision of a written opinion. In cases of absence from the hearing process, it may be about conducting arbitration on documents as a form of expedited procedure. So, according to Part 5 of Article 3 of Appendix VI of the ICC Rules, the arbitral tribunal may, after consultation with the parties, resolve the dispute solely on the basis of documents submitted by the parties, without holding a hearing and questioning witnesses or experts. The Chartered Institute of Arbitrators issued a Guide to Arbitration on Documents in 2016. As one of the possible conditions for conducting such arbitration, the possibility of considering a case without oral testimony of witnesses and/or expert witnesses is determined.

Expedited Arbitration is a simplified procedure with a shorter time frame to achieve a final settlement in a cost-effective and time-efficient manner. The relevance of such a procedure for business can be confirmed by the successful experience of its application by various arbitration tribunals. In particular, the Arbitration Institute of the Swiss Chambers conducted 454 expedited procedures between the implementation of the expedited rules in 2004 and 2018. The Singapore International Arbitration Center had received 499 expedited applications as of 31 May 2019, and since the introduction of the relevant rules in 2010, of which 291 have been granted.

As evidenced by the rules of arbitration courts and UNCITRAL approaches, the specifics of expedited arbitration (including arbitration by documents) undoubtedly reduce the activity of an expert in the course of proceedings. This fact is explained by the possible absence of hearings, during which expert testimony is heard during the general procedure. However, the role of the expert should not be diminished. When disputes are resolved under the expedited procedure, there is often demand for the opinion of a qualified expert, and the latter’s participation in the case can be ensured through the traditional provision of a written opinion.