Following on from our previous commentaries on the Law Commission’s Consultation Paper (CP) summarising its review of the Arbitration Act 1996 (the Act), we now turn to the fifth issue the Commission considered: Summary disposal.
An area where litigation procedure is often perceived as having an advantage over arbitration is the area of summary disposal without the need for trial. For example, where a claimant can show that a party has no realistic prospect of success on its case or an issue in the case and there is no other reason why the case or issue should proceed to trial, the court rules allow a court to give summary judgment, saving the time and costs of preparing for a full trial. Other provisions allow for strike out of a case if it discloses no reasonable grounds for bringing or defending a claim.
It has been a cause of frustration to users of arbitration that such an approach is in practice rarely adopted by tribunals.
Arbitrators under S 33 of the Act have a duty to “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 “ adopt procedures suitable to the circumstances …, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined “. It is for the tribunal to decide procedure. Although these would enable arbitrators to deal summarily with cases in appropriate cases, tribunals seem reluctant to do so fearing challenge for procedural unfairness under the Act or a refusal of recognition at enforcement under Article V 1 (b) of the New York Convention on the basis of a party having been “unable to present his case “.
Institutions such as LCIA, SCC, ICC and ICSID have sought to encourage greater use of summary procedures in recent years through provisions in their respective rules or (in the case of the ICC) notes to parties.
The Commission proposes, subject to consultation, to introduce into the Act a non-mandatory provision, allowing tribunals to adopt a summary procedure as set out in the quote below. This would arise on an application by one of the parties, not on the tribunal’s initiative. The language proposed adopts the well-established wording of the court rules, thus providing some certainty of meaning.
This proposal will be welcomed by users. Although it brings with it a greater risk of interlocutory applications, provided the Act sets out a robust test and procedures which are reliably and consistently implemented by tribunals in practice, it will add to the attraction of English-seated arbitrations and inspire confidence in users. As it would arise as a non-mandatory provision, parties could always exclude summary disposal if they wished to do so.