The expedited arbitration procedure is designed to resolve straightforward, lower-value disputes swiftly. Yet not all expedited cases are straightforward. The amount in dispute does not necessarily reflect a dispute's factual or legal complexity, nor its economic importance to the parties. In such situations, parties may begin to envisage a process that resembles a fully fledged arbitration, despite having opted for an expedited one.
One of my first expedited cases illustrates this tension well. The amount in dispute was just below EUR 1 million, but the claim combined monetary and declaratory relief with long-term commercial consequences. Both parties sought two rounds of submissions, and intended to rely on multiple fact witnesses and experts. Both requested a hearing. The award had to be issued within 6 months. It was obvious that this exercise would be challenging - for everyone.
Below, I share seven practical considerations that have guided my approach in managing expedited arbitrations where complexity and/or party expectations were not entirely aligned with the expedited process.
1. Procedural timetable and backward planning
The first critical task is to establish a procedural timetable that fits the expedited framework. Proper consultation with the parties at the first case management conference (CMC) is crucial for aligning expectations from the outset.
I find it helpful to plan backwards from the award deadline. Under the ICC expedited rules, for example, the award must be rendered within six months of the CMC, but the draft award must be submitted for scrutiny already within five months. In CEPANI expedited arbitration, the award must be rendered within four months of the establishment of the procedural timetable.
In practical terms, this means that the pleading phase and any hearing should be completed several weeks before the relevant deadline to allow sufficient time for drafting the award.
Highlighting these deadlines upfront shifts the focus from whether procedural limits are appropriate to how the case can realistically be managed within the available time.
2. The number of submissions
Depending on the degree of front-loading in the request for arbitration and the answer, a second round of submissions (if it is feasible timewise, taking into account the time requested for the first round) may not be necessary.
One solution I have used is a flexible procedural timetable under which the party filing first indicates, shortly after receiving the other side’s submission, whether a reply is necessary to address any new issues. The timetable then predefines alternative paths for either one or two rounds.
Another option is to use a second round for the parties to respond to specific questions from the tribunal after the first round. The technicalities of this option should be carefully discussed upfront in order to (i) avoid surprising the parties if the tribunal’s questions raise issues that were not pleaded in that specific context, and (ii) factor in the time needed for any comments the parties may wish to submit on each other’s responses.
3. Submission length
It is sensible to ask the parties at the first CMC what they envisage in terms of submission length, and whether page limits should be discussed in light of the targeted timetable. This discussion not only informs the tribunal’s procedural decision, but also helps each party understand what to expect from the other.
Counsel sometimes fear that narrowing their arguments might prejudice their case, which can lead to overly long submissions and voluminous exhibits. It is therefore useful for the tribunal to remind counsel, especially those less versed in arbitration, that tribunals are best assisted with concise and focused submissions that guide them through the record in as clear a manner as possible.
While arbitrators are generally reluctant to impose page limits, most expedited procedure rules explicitly empower them to control the volume of written submissions at their discretion. Where there is no consensus on submission length, it becomes appropriate, and sometimes necessary, to make use of these tools.
4. Witness and expert evidence
When several witnesses are envisaged on both sides, it will likely be premature for tribunals to try to limit witness evidence at the first CMC. Still, it is worthwhile asking what factual issues these witnesses are expected to address, whether all are necessary or if there is a key witness.
If both sides intend to rely on expert evidence, the possibility of a joint expert report should be discussed.
5. Due process objections must be specific
When parties oppose short timelines or page limits, or seek substantial extensions of time, invoking due process in general terms (as is often the case) is not enough. They must explain specifically how the proposed or adopted framework would prevent them from presenting their case.
That said, if compressed timelines or other envisaged limitations raise genuine due process concerns, the solution is not to force the process that does not serve the purpose. In such cases, this may warrant adopting a more generous procedural timetable or even removing the case from the expedited track altogether.
6. Dispensing with a hearing?
Expedited arbitration rules typically allow tribunals to decide cases solely on the basis of documents. This may be appropriate in straightforward cases where the written record suffices, provided, however, that the law of the seat or of a potential place of enforcement does not require a hearing when requested by a party.
That said, arbitrators are understandably reluctant to deny a hearing when requested by a party. In practice, dispensing with a hearing entirely is not necessarily the most efficient option. A short, focused online hearing can often address the decisive issues without delaying the proceedings. Even a hearing limited to questions and answers with counsel can accelerate the tribunal’s understanding of the case by reducing the time spent grappling with written arguments, and may ultimately save time overall.
7. Rendering a well-reasoned award on time
The award is expected to be concise, but not at the expense of clarity. Unless the applicable rules allow summary reasons, the reasoning must still reflect the parties’ positions and explain how the tribunal weighed the evidence and reached its conclusions.
To render a well-reasoned award on time, the drafting process should ideally begin early, for instance by summarising the parties’ arguments as the case develops. This not only streamlines the drafting itself, but also greatly facilitates hearing preparation and helps identify the issues that require clarification.
In any event, sufficient time must be allocated between the hearing (or final submissions) and the deadline for submitting the draft award to allow for drafting and, where applicable, deliberations of a three-member tribunal.
While expedited arbitration requires consistent engagement throughout the proceedings, it is critical that arbitrators have the availability to prioritise the case during this final phase.
Conclusion
The tribunal’s discretion to adopt efficiency-focused procedural measures should shape the dialogue with the parties when tailoring the procedural steps to fit the expedited framework. Exercising that discretion requires common-sense judgment and, as in many other aspects of arbitration, a fair balance.