Used correctly, fast track arbitration is an efficient
and effective way of resolving disputes. It is not, however,
suitable for every kind of dispute and parties seeking to use fast
track arbitration should consider the practical
Fast track arbitration goes some way to addressing concerns that
traditional arbitration has become too much like litigation and can
no longer deliver on its promise to provide fast and cost effective
dispute resolution. These concerns are particularly relevant in the
context of commercial projects.
Fast track arbitration is not a distinct kind of arbitration.
Rather, it is simply a meaner, leaner version of traditional
arbitration. In contrast to traditional arbitration, procedures in
fast track arbitration are expedited with the aim of accelerating
the delivery of the award. Ordinarily, this is achieved by limiting
the timeframes for procedural steps, narrowing disclosure and
confining submissions to writing.
Most major international arbitral institutions have updated
their respective rules with a view to making them more efficient
and commercially competitive. For example, ACICA's 2011
Expedited Arbitration Rules and the ICC's update to
its rules in January 2012 were done with the express purpose of
providing a faster more efficient arbitration experience.
There are, however, a number of practical realities that parties
should consider before adopting fast track procedures. For
Will the parties be ready and able to meet the strict time
limits required by fast track arbitration? If, for example, the
dispute is too complex for fast track arbitration a failure to meet
timeframes or an inability to consider all the issues in the time
allowed may severely prejudice the proper resolution of the
Can the parties commit the resources (in-house legal counsel,
experts and factual witnesses) necessary to make their fast track
arbitration a success? The dispute may require a concentrated
effort of resources from multiple areas across the business, e.g.
management, experts and legal. Convening the Board repeatedly to
make decisions on issues commercially material to the arbitration
can often be challenging and frustrating for all involved.
Similarly, experts often need to be retained on an almost full-time
basis to meet all the demands fast track arbitration requires. This
may not be realistic for experts who are in high demand.
Are the parties willing to cooperate (eg. on procedural matters
and rules of evidence) in order to resolve the dispute in a short
timeframe? In certain types of projects, it will often be in the
interest of one of the parties to stall proceedings if a dispute
What are the consequences if the arbitration cannot be finished
within the agreed timeframe? If the time for the award lapses, the
arbitration will be frustrated and the parties will be forced to
litigate the matter in court. Not only will this result in
increased costs and delay, but the parties will also be forced to
settle their dispute in a forum the parties had originally sought
While the idea of fast track arbitration can be attractive, it
can give rise to its own set of problems. The practical realities
of fast track arbitration warrant proper consideration. In many
cases a 'four-eyes review' in addition to buy-in across the
business is advisable so that the need for speed does not result in
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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