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Steps taken by arbitral institutions to speed up arbitration

Introduction

"Time is money" – this saying is also true in the context of dispute resolution. Historically, arbitration was known as the cheaper and quicker alternative to litigation. However, in more recent times things seem to have changed, whereby arbitration has been seen to be criticised for delays whereas various commonwealth jurisdictions have revamped their courts and civil procedural rules, focusing strongly on case management for strict timetables, proportionate disclosure and expert evidence so that courts are thus able to control time and costs by focusing on key issues and limiting the amount of work required for each case. The arbitral institutions have started to respond with various innovations aimed at improving efficiency of arbitration. This article provides an overview of recent steps being taken by the arbitral institutions, and the parties themselves, to improve the position.

Statistics on arbitration being lengthy / inefficient

The LCIA data1 shows that the mean length of an LCIA arbitration from the date the request for arbitration was received by the LCIA until the date of the final award (including any stays) is 20 months and the median length is 16 months. ICC and ICSID2 rules take longer – with the average time for a tribunal to render an award amounting to 25 months and three to four years respectively. These time periods are still not short enough for some parties; as the title of the relevant section of White & Case's 'Arbitral institutions respond to parties' needs' Infographic suggests, this is indeed evidence that "more may still be done on reducing the timeframe for rendering an award".3

Increase in parties' wishes for expedited proceedings4:

It is clear that parties' appetite for expedited proceedings is growing as parties aim to reduce the costs of their disputes. Indeed, in 2015 there were 30 expedited procedure application requests, up from 10 in 2014 in the LCIA, as well as 69 such applications in SIAC in 2015 (up from 44 in 2015). Further, the White & Case / QMUL 2015 International Arbitration Survey5 found that "lack of speed" and "lack of efficiency" were the joint second most complained about features of arbitration (preceded only by "cost" – a characteristic of arbitration that is often linked to the length of an arbitration). Indeed, the Survey notes that "Interviewees felt that more information about the average length of time of institutions' cases would allow them to make more informed choices. They acknowledged, however, that such statistics are difficult to standardise because of the different variables involved and the lack of clear yardsticks in terms of measuring points."6

Steps taken to rectify the lengthy nature of arbitration at the beginning of an arbitration

One of the areas where arbitration is criticised for taking too long is in its initial stages. In the early stages of an arbitration, the availability of an emergency arbitrator (i.e. a person granting interim or conservatory measures that cannot await constitution of an arbitral tribunal) may go some way to reduce such criticisms. An increasing number of arbitral institutions (among them: ICC, LCIA, SCC, SIAC and ICDR) now include provisions in their rules for the appointment of emergency arbitrators. However, it is key to note that institutions themselves warn of the 'flip-side' of invoking the use of an emergency arbitrator that may result in added time and cost. Indeed, the ICC Arbitration Commission Report on Techniques for Controlling Time and Costs in Arbitration (the "ICC Commission Report")7 warns that the parties should make sure that the conditions for bringing emergency arbitrator proceedings under the relevant institutional rules are met: for example, the party making the application must be able to demonstrate that it needs urgent interim or conservatory measures that cannot await the constitution of the arbitral tribunal and emergency arbitrator proceedings may only be brought against a signatory of the arbitration agreement or the signatory's successor. The ICC Commission Report concludes by stating that "[a]n attempt to bring emergency arbitrator proceedings that do not meet all of the conditions will result in needless expenditure and loss of time."8

It is, however, to be noted that as this is a relatively new procedure, there are still questions of enforceability of decisions rendered by emergency arbitrators, and accordingly, the effectiveness of this procedure.

Furthermore, the recent increase in the use of sole-member arbitral tribunals (in the LCIA up from 38% in 2014 to 52% in 2015 and in the SCAI9 up to 63% in 2015 from 56% in prior years). The choice to use a tribunal constituted of a sole member is an example of steps parties themselves are undertaking to, among other things, decrease the length of an arbitration. Not only are sole-member tribunals quicker to appoint, but a tribunal made up of just one member, who has no need to deliberate and debate with busy colleagues in order to reach a decision on the dispute, undoubtedly also has the potential to reach a speedier determination than a three-member tribunal.

Steps taken to rectify the lengthy nature of arbitration over the course of an arbitration

When considering an arbitration as a dispute resolution procedure, the availability of an expedited procedure may help in arbitration being chosen. Indeed, notably, institutions such as VIAC and ICC have responded to this by amending their standard rules to introduce an alternative expedited procedure for smaller claims, with the ICC also making other general amendments to its standard rules designed to streamline non-expedited cases, thereby also increasing efficiency.

Moreover, various institutions have also now included provisions on the consolidation of parallel arbitrations in order to allow for a swifter rendering of an award. These provisions typically allow for consolidation of parallel arbitrations where the parties agree, or the claims in the arbitrations are made under the same arbitration agreement, or if the arbitrations involve a common question of fact or law, and the claims arise out of the same transaction and the arbitration agreements in all arbitrations are compatible.

Steps taken to rectify the lengthy nature of arbitration at the end stages of an arbitration

Nearing the conclusion of an arbitration process, in order to prevent tribunal delay in issuing the award, the ICC has introduced a policy on costs consequences resulting from unjustified delays by arbitrators in submitting draft awards to the ICC for scrutiny. Three-member tribunals are expected to submit draft awards to the ICC within three months from the last evidentiary hearing or the last filing of written submissions, (whichever is later); while a sole arbitrator will have two months to do the same. Unless the ICC deems the delay beyond these periods to be justified, the ICC may reduce arbitrators' fees by way of a fine. This is a further method institutions are attempting to employ in order to reduce delays at the stage leading up to the issue of an award.

Delay is not always institutional

It is evident that institutions themselves are aware of the delays in arbitration and are taking steps to rectify this. However, it is key to note that the lengthy nature of arbitration is not always due to the institutions, nor can it always be rectified only at the institutional level.

The ICC Commission Report advises on steps the parties themselves could undertake in order to avoid the arbitration lasting an unnecessarily long time. For example, the ICC Commission Report warns that having more than one language in the arbitration is likely to increase time and cost, and further urges the parties to select arbitrators with strong case management skills so as to make the arbitration as cost and time effective as possible. Accordingly, arbitration rules usually impose upon the parties and the arbitrators obligations to conduct the arbitration in an expeditious and cost-effective manner.

Conclusion

It is clear from the foregoing that there are still opportunities to make arbitration more efficient; it is further evident that arbitral institutions are aware of this and are taking various steps, both general ones and ones dealing with specific issues. Indeed the ICC Commission Report ends by stating that "[i]t is the sincere hope of the Task Force that this document will be used and be of use in the crafting of efficient arbitration procedures in which time and cost will be proportionate to the needs of the dispute."10 However, this is not possible to rectify at an institutional level alone, as some delays are not institution-based, and arise from the behaviour of the arbitrators and the parties themselves. Indeed, the 'catch-22' is that some arbitrators will always be weary of being perceived as too hasty and therefore subsequently accused of not devoting enough time to one of the sides, resulting in the ultimate award being challenged. Moreover, even with all the steps already taken, it will be a few years before the impact of these can truly be ascertained.


  1. From infographic published by White & Case: Arbitral institutions respond to parties’ needs
  2. From infographic published by White & Case: Arbitral institutions respond to parties’ needs
  3. From infographic published by White & Case: Arbitral institutions respond to parties’ needs
  4. From infographic published by White & Case: Arbitral institutions respond to parties’ needs
  5. QMUL and White & Case Survey 2015
  6. QMUL and White & Case Survey 2015
  7. ICC Commission Report on Controlling Time and Costs in Arbitration
  8. ICC Commission Report on Controlling Time and Costs in Arbitration
  9. Swiss Chambers’ Arbitration Institution
  10. ICC Commission Report on Controlling Time and Costs in Arbitration