Worldwide: Would A Summary Procedure Improve The Arbitral Process?

Last Updated: 3 March 2017
Article by Peter Hirst

With high cost and inefficiency top of the list of party concerns about the arbitral process, institutions, arbitrators, practitioners and indeed legislators are keen to find ways to address those concerns. One proposed solution is the availability of a summary procedure to 'cut through' elements of the arbitration process saving both time and money. This is of particular interest where, for example, arbitration involves an element of debt recovery or where sham defences may be used tactically to prolong an unmeritorious dispute.

Summary procedures in litigation

Summary procedure, namely summary judgment, is a key part of the litigation process, and, as such has a proven track record of working as a dispute resolution tool. In the English Courts, under the Civil Procedure Rules (CPR 24), summary judgment is available where:

  • the court considers the claimant has no real prospect of succeeding on, or the defendant has no real prospect of successfully defending, the claim or issue; and
  • there is no other compelling reason why the case or issue should be dealt with at trial.

Summary judgment can be granted on part of a claim and will only be granted in the 'clearest case' or in a 'plain and obvious case' (S v Gloucestershire CC, Esprit v Fashion Gossip). The court's decision will usually be made on the basis of witness and other evidence provided with the application and defence to the application. While a hearing will often take place, applications for summary judgment should be so 'clear cut' that the formalities of running a full case to trial are unnecessary. There is a body of case law for parties to rely on when making or defending such an application.

So, could arbitration follow the court's lead and use a summary procedure to resolve all or part of a dispute?

SCC summary procedure

The Stockholm Chamber of Commerce's (SCC) revised arbitration rules (in force 1 January 2017) introduce a summary procedure.

Under Article 39, a party may request that the tribunal decide one or more issues of fact or law by way of summary procedure without necessarily undertaking every procedural step that might otherwise be adopted for the arbitration. The request may for example include that:

  • an allegation of fact or law material to the outcome of the case is manifestly unsustainable;
  • even if the facts alleged by the other party are assumed to be true, no award could be rendered in favour of that party under the applicable law; and
  • any issue of fact or law material to the outcome of the case is, for any other reason, suitable to determination by way of summary procedure.

This is clearly and understandably given the nature of arbitration, less prescriptive that the provisions of the Civil Procedure Rules and gives scope to the arbitrators to act in the interests of the efficient and expeditious resolution of the dispute.

One aspect that will be interesting to watch (though this may be difficult due to awards not being published) is the interpretation of the new rule by arbitrators. In particular, the influence of their background on their approach to where the summary procedure is appropriate. It would not be unreasonable to think that, for example, an English QC would rely on their previous experience of the test for summary judgment whereas an arbitrator from another jurisdiction would have a different yet equally legitimate approach.

The SCC is not the first institution to take this step. In its rule revision in 2016 the Singapore International Arbitration Centre (SIAC) also introduced a procedure for the summary disposal of claims (Article 29) where the claim is manifestly without legal merit or manifestly outside the jurisdiction of the tribunal. It is not known whether this rule has been well-used by parties or tribunals.

Existing powers

Arguably, and potentially controversially, the power to adopt a summary procedure to decide a matter in an expeditious manner is already available to tribunals in their case management powers. For example, the ICC Rules provide that the tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute (Article 22). Further, in respect of curtailing procedures: 'the tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means'. Therefore, though not specifically stated, the tribunal arguably has the power to determine the dispute in the most expeditious way possible, including in summary form.

This all said, tribunals are understandably keen to provide an award which is not challenged. To adopt a summary procedure without explicit authority to do so could open the award up to a challenge and thereby undermine the finality of the process. This can also be seen in tribunals' reluctance to order a trial of preliminary issues (arguably another procedure which could be used to streamline the arbitral process) where the parties don't agree. Much has been written recently about 'due process paranoia' and tribunal's failure to make robust procedural decisions – without a specific summary procedure such as that in the forthcoming SCC rules making such a ruling seems more understandable caution than paranoia.

Arbitration Act 1996 reform

With the Arbitration Act 1996 potentially facing reform, is a summary procedure likely to be introduced?

With the SIAC rule being relatively new and the SCC rules not yet in force (the new rule therefore untested) this is a difficult question to answer at this stage. If successful, it is likely that other institutions will adopt a similar rule over the coming years which would then enable the process to be 'tested' before being introduced into legislation (such testing of course most likely including being tested by courts on appeal). The question then would be whether the legislature leans towards a prescribed list of when a summary decision should be made like that in the CPR, or, a more 'suggested situations' approach with the Act containing example grounds for a summary application, more akin to the SCC rules. The answer may lie in the middle and with the benefit of learning from SIAC, the SCC and any other institutions that follow in their footsteps.

Saving time and bringing down costs are key drivers behind reform but a 'race to the bottom' must not be entered into. The reliability and reputation of arbitration as a dispute resolution mechanism must be upheld. Having experienced 'quick fire' 90 day arbitration it is clear that truncated, direct proceedings can work without compromising the integrity of the process. We watch with interest the SCC's new time and cost-saving procedure to see whether it can uphold and indeed enhance this important dispute resolution tool.

Would A Summary Procedure Improve The Arbitral Process?

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.