Author

Ms Swee Yen Koh

Partner in the Commercial & Corporate Disputes and International Arbitration Practices - WongPartnership LLP

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Summary Procedure

(The author is grateful to her colleague Donny Trinh Ba Duong for the considerable assistance given in respect of the research and preparation of this work.)

I. Definition

1.

Summary procedure is a special procedure that enables the arbitral tribunal to dispose of unmeritorious and abusive claims at the preliminary stage of an arbitration proceeding.1 This procedure allows a party to apply to the tribunal for the early dismissal of a claim and the tribunal is empowered to dismiss the claim, if the claim is “manifestly without legal merit”.2 The rationale behind this procedure is to strike a balance between, on the one hand, the need to save time and costs and avoid unnecessary consumption of parties’ resources, while on the other hand, not to deprive the parties of their right to due process.3

II. Summary procedure under institutional arbitration rules and investment treaties

2.

Summary procedure is a feature of investment arbitration. The ICSID Rules of Procedure for Arbitration Proceedings (“ICSID Rules”), the ICSID Arbitration (Additional Facility) Rules4 and the 2017 Singapore International Arbitration Centre Investment Arbitration Rules (“SIAC IA Rules”)5 are well-known institutional investment arbitration rules that expressly provide for early dismissal of non-meritorious claims and defences. Other arbitral institutions have also included summary procedure in their rules, such as the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Rules”),6 and the International Chamber of Commerce (“ICC”) Rules of Arbitration.7 Provisions for summary determination can also be found in several investment treaties, including the Central American Free Trade Agreement (“CAFTA”)8 and the EU-Canada Comprehensive Economic Trade Agreement (“CETA”).9

3.

The most fundamental commonality between ICSID Rule 41(5) and SIAC IA Rule 26 is that they both enable a party to request early dismissal of a claim if it deems that such a claim is “manifestly without legal merit”.

III. A residual role

4.

The summary procedure under ICSID Rule 41(5) would only apply to the extent the parties have not agreed to another expedited procedure for making preliminary objections in the relevant treaties.10

IV. Scope - merits, jurisdiction and procedural impediment

5.

In terms of the scope of objections that can be raised by a party, on its wording, ICSID Rule 41(5) covers objections as to “legal merit”,11 differing from SIAC IA Rule 26 which expressly provides for objections as to legal merit, jurisdiction and admissibility of a claim. In practice, however, it is generally accepted that ICSID Rule 41(5) also allows not only objections as to merits but also jurisdictional objections and objections premised on “equitable considerations and procedural impediments”.12

V. Procedure

6.

The summary procedure under ICSID Rules and SIAC IA Rules are significantly expedited. Under ICSID Rule 41(5), a party has just 30 days after the constitution of the tribunal, and "in any event before the first session of the Tribunal", to raise any objection under Rule 41(5). It is important to note that the registration of the request for arbitration does not and cannot pre-judge an application under ICSID Rule 41(5).13

7.

SIAC IA Rule 26 does not specify any time-limit for a party to raise an objection that the claim is manifestly without legal merit. However, the Tribunal has only 90 days from the date of filing of the application to make decision, unless the Registrar extends the time in exceptional circumstances.14

8.

In any case, the ICSID Rule 41(5) and SIAC IA Rule 26.3 require parties to be given the opportunity ‘to present their observations on the objections’ or ‘to be heard’ before the tribunal "promptly" decides. It appears to be the norm for parties to be permitted one to two rounds of written submissions, followed by a round of oral arguments.15

9.

The dismissal of objection in summary procedure will not affect a party’s right to thereafter file jurisdictional objections according to the normal procedure.16

VI. Test for "manifestly without legal merits"

10.

There is a high level of uniformity in the manner in which ICSID tribunals have applied the test of "manifest" in dealing with summary procedure. The threshold is very high17 and likely even higher in annulment proceedings,18 and a party that raises objection must show that the claim is "clearly and unequivocally unmeritorious".19 However, in order to for an arbitral tribunal to consider itself satisfied and decide the matter summarily, the tribunal is under an obligation to be sure that the claim objected to is "manifestly without legal merit" and that it has considered all the relevant materials before making decision.20

11.

Unsurprisingly, this high threshold has been crossed in only some rare occasions, especially under ICSID Rule 41(5).21 More often than not, the threshold has not been met.22

VII. Addressing disputed facts

12.

The word "legal" (in the phrase "without legal merit") was specifically included in both ICSID Rule 41(5) and SIAC IA Rule 26. This was to avoid improper discussions on the facts of the case in summary procedure, and tribunals have been careful to emphasise that objections should be based on legal impediments to claims, not factual impediments.23

VIII. Tribunal's decision on costs

13.

In the event that a party’s claims are considered manifestly without legal merit and are dismissed early in summary procedure, most tribunals decide that that party shall have to bear the other party’s share of the costs of the proceeding and a reasonable part of fees and expenses incurred by the other party,24 save that in a few occasions the tribunals decide not to make any order as to costs.25

Bibliography

Antonietti, A., The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules, 2007, 41 International Lawyer, p. 427.

Banifatemi, Y., Chapter 1: Expedited Proceedings in International Arbitration, in Lévy, L. and Polkinghorne, M. (eds.), Expedited Procedures in International Arbitration, Dossiers of the ICC Institute of World Business Law, Vol. 16, International Chamber of Commerce (ICC), 2017.

Brabandere, E.De., The ICSID Rule on Early Dismissal of Unmeritorious Investment Treaty Claims: Preserving the Integrity of ICSID Arbitration, Vol. 9, Issue 1, 2012, Manchester Journal of International Economic Law, p. 23.

Brown, C.W. and Puig, S., The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules, 10 The Law & Practice of International Courts and Tribunals, 2011.

Costábile, N., Early Dismissal of Unmeritorious Claims and Defences in International Arbitration, in González-Bueno, C. (ed.), 40 under 40 International Arbitration, Carlos González-Bueno Catalán de Ocón; Dykinson, S.L. 2018.

Diop, A., Objection under Rule 41(5) of the ICSID Arbitration Rules, 2010, ICSID Review, Vol. 25, Issue 2, p. 312.

Markert, L., Preliminary Objections Pursuant to ICSID Arbitration Rule 41(5) – Soon to Become the Preliminary Objection of Choice?, Kölner Schrift zum Wirtschaftsrecht, Vol. 2, Issue 2, 2012, p. 142.

Potesta, M., Chapter 9: Preliminary Objections to Dismiss Claims that are Manifestly Without Legal Merit under Rule 41(5) of the ICSID Arbitration Rules, in Baltag, C., ICSID Convention after 50 Years: Unsettled Issues, Kluwer Law International, 2016.

Schreuer, C. et al., The ICSID Convention – A Commentary, Cambridge University Press, 2009.

Tibell, A., Chapter 5: Too Early to Decide? An Examination of Dispositive Motions in International Arbitration, in Calissendorff, A. and Schöldstrom, P. (eds.), Stockholm Arbitration Yearbook 2019, Stockholm Arbitration Yearbook Series, Vol. 1, Kluwer Law International, 2019.

Yeo, A. and Koh, S.W., Objections of Manifest Lack of Legal Merit of Claims: Arbitration Rule 41(5), in Legum (ed.), The Investment Treaty Arbitration Review, 2020.

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