Ready, steady, GO: Newly Introduced UNCITRAL Expedited Arbitration Rules11 November 2021

As noted in the Explanatory Note to the Expedited Rules: “Expedited arbitration is a streamlined and simplified procedure with a shortened time frame, which makes it possible for the parties to reach a final resolution of the dispute in a cost and time-effective manner.” The availability of the new rules is therefore likely to be welcomed by commercial parties.

The Expedited Rules, which sit as an appendix to the UNCITRAL Arbitration Rules, are similar to expedited procedures implemented by major arbitration institutions. This note provides a summary of the key aspects of the Expedited Rules, and a comparison with other sets of expedited rules.

Scope of Application

Both the Expedited Rules and the UNCITRAL Arbitration Rules make clear that the parties’ express consent is required for the former to apply.¹

Other rules providing that the parties must opt-in in order to apply expedited procedures include the Stockholm Chamber of Commerce (SCC) Expedited Arbitration Rules 2017, the Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration Rules 2018 and the Singapore International Arbitration Centre (SIAC) Rules 2016. By comparison, the International Chamber of Commerce (ICC) Rules 2021 and the International Centre for Dispute Resolution (ICDR) Rules 2021 automatically apply expedited procedures for disputes falling under a certain amount, unless the parties have opted out.

In any event, most of these rules provide for a threshold amount for expedited procedures to apply, but interestingly the Expedited Rules are an exception. It is evident, however, that the higher the amount involved, the more complex the arbitration is likely to be and the application of the Expedited Rules would certainly not be practical in proceedings with multiple parties, several witnesses and experts and/or hundreds of submitted documents.

It is worth mentioning that the London Court of International Arbitration (LCIA) Rules 2020 adopt a different approach and do not include specific provisions for an expedited procedure. The LCIA Rules do, however, provide that “[i]n the case of exceptional urgency, any party may apply to the LCIA Court for the expedited formation of the Arbitral Tribunal” and that a tribunal may “make any procedural order it considers appropriate with regard to the fair, efficient and expeditious conduct of the arbitration”, such as dispensing with a hearing or abridging any period of time.

Remote Hearings

The Expedited Rules introduce a provision concerning remote hearings which is not found in the UNCITRAL Arbitration Rules, not only reflecting modern international arbitration practice, but also the impact of the COVID-19 pandemic.

Thus an “arbitral tribunal may, after inviting the parties to express their views and taking into account the circumstances of the case…hold consultations and hearings remotely”. Both the ICC Rules and the LCIA Rules have recently introduced similar provisions, allowing hearings to take place remotely.

This follows a trend in international arbitration and the Explanatory Note to the Expedited Rules emphasises that remote hearings “assist the arbitral tribunal in streamlining the proceedings and avoiding unnecessary delay and expense, both of which are in line with the objectives of expedited arbitration”.

Whether remote hearings will remain appropriate after the end of COVID-19 restrictions across the globe will depend on the characteristics of the dispute. Although remote hearings have been a success during the pandemic, they raise concerns as to due process, as well as the assessment of the credibility of witnesses/experts. Parties may start to push for in-person hearings now that restrictions are lifting, particularly in cases where cross-examination of multiple witnesses and experts is expected. Nevertheless, remote hearings have their advantages (both in terms of costs and efficiency) and are likely to remain popular, particularly under expedited procedures, in relation to case management conferences and in other small cases.

Number of Arbitrators

Most expedited rules provide that the arbitral tribunal should be formed by a sole arbitrator. This is no different under the Expedited Rules, which provide that “[u]nless otherwise agreed by the parties, there shall be one arbitrator”.

Nevertheless, the Expedited Rules permit the appointment of a larger tribunal if the underlying arbitration agreement so provides. This is a different approach to that taken in the ICC and SIAC Rules, which each provide that expedited provisions take precedence over clashing provisions in the arbitration agreement, meaning that under those rules a sole arbitrator will be appointed, even if the arbitration agreement provides for something different.

This has raised some concerns as to limiting the principle of party autonomy and, in giving the parties the option to choose the number of arbitrators, the Expedited Rules have steered away from such criticism.

Procedure

Like other expedited procedures, the Expedited Rules provide for a significantly abbreviated procedure by comparison to the UNCITRAL Arbitration Rules, in some cases cutting the usual time limits in half. The claimant must submit their notice of arbitration and statement of claim at the same time, with the respondent having just 15 days to submit a response, and then a further 15 days from the date of constitution of the tribunal to submit its statement of defence and any counterclaim. The tribunal may limit or dispense entirely with production of documents and determine the case on a documents-only basis.

The Award

The Expedited Rules provide that “[t]he award shall be made within six months from the date of the constitution of the arbitral tribunal unless otherwise agreed by the parties”. Most expedited rules set a similar time limit of six months for the award to be rendered from either: the case management conference (the ICC Rules); the constitution of the tribunal (the SIAC Rules); or the transmission of the file to the tribunal (the HKIAC Rules). A few expedited rules have even tighter time limits: under the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules 2015, the award needs to be rendered within three months of the formation of the arbitral tribunal; and under the ICDR Rules, the award has to be delivered within 30 days after the close of the hearing.

Nevertheless, such rules typically permit these deadlines to be extended and, under the Expedited Rules, the tribunal may, “in exceptional circumstances and after inviting the parties to express their views”, extend the period for delivery of an award for no more than nine months from the date of the constitution of the arbitral tribunal.  A further extension may also be allowed, but only with the agreement of the parties.

Conclusion

With the introduction of the new Expedited Rules, the UNCITRAL Arbitration Rules, which are widely used in commercial disputes and ad hoc arbitrations, now offer parties a route to speedy resolution of their disputes. The Expedited Rules endorse the established practice of other arbitration institutions, as well as introducing innovations such as the use of remote hearings.

Even though the Expedited Rules provide many advantages to parties looking to resolve disputes in a short timeframe, they may not be appropriate for large, complex arbitrations and high-profile cases as parties may not be able to meet tighter deadlines or may raise challenges due to procedural restrictions common in expedited procedures.

WFW’s leading Dispute Resolution group provides advice to parties before and during arbitration proceedings. We would be pleased to answer any questions or to provide any further analysis on the UNCITRAL Expedited Rules.

[1] An updated version of the UNCITRAL Arbitration Rules is expected to be published by early 2022, amending paragraph 1 in order to include an additional paragraph providing that “[t]he Expedited Arbitration Rules in the appendix shall apply to the arbitration where the parties agree”.