The Virtues of Episodic Justice - Chapter 38 - State of Arbitration - Essays in Honour of Professor George Bermann
Originally from State of Arbitration
While the arbitration world has evolved over the last 15 years, it remains the case that dispositive motions in international arbitration (sometimes called motions for summary adjudications or early disposition) are rare, and more rarely successful. Intensely focused on achieving an efficient outcome, arbitral tribunals remain reluctant to slow things down or engage in a process that may not result in shortening the overall length of the proceeding. This focus on efficiency is entirely appropriate and contributes to the speedier results that arbitration attains as compared to its U.S. litigation cousin, where such motions are routinely attempted. But I would like to suggest that the focus on efficiency overlooks less quantifiable benefits of dispositive motion practice that may be said to degrade the quality of justice that arbitration delivers. I think there are three such benefits, which I will call (I) the shaping effect of motion practice, (II) the focus factor, and (III) the continuous feedback phenomenon. This essay argues that arbitral tribunals, and arbitral practice generally, should recognize these intangible virtues in deciding whether to permit or pursue such motions.
Since about 2006, when the International Centre for Settlement of Investment Disputes (ICSID) revised its rules to provide for early dismissal of claims, the arbitration community has increasingly acknowledged that summary adjudication procedures have a place in international arbitration. The prevailing standard was initially very high. The ICSID Rules set the pattern early, providing for early dismissal of a claim that was “manifestly without legal merit.” It took 10 years, but in 2016 the Singapore International Arbitration Centre (SIAC) Rules followed suit, permitting the dismissal of claims and defenses under the same “manifestly without legal merit” standard.