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Is Faster Always Better: Increased Focus on Expedited Arbitration

By Dermot Flanagan S.C & Arran Dowling-Hussey [1]

Businesses based in the G.C.C region who are involved in an international arbitration can expect the arbitral  reference to take from between 13-16 months to conclude.  Regardless of the size of the companies involved the lost opportunity costs triggered by the time and expense of managing a dispute resolution process over more than a year can be considerable If given a choice most would welcome the chance to deal with their dispute in a more expeditious manner. However, often parties will not realise exactly what lies before them until the dispute they are involved in has got to a stage where they are fixed with waiting for the time frame just mentioned to be reached. It is also obviously the case that as with any average figure there will be outliers that can result in claimant’s and respondent facing a much longer wait.

In many instances the underlying nature of the dispute will mean that the decision to arbitrate is correct. Where the dispute pivots on one or more ‘black letter law issues’ it will be ill-suited to be addressed by mediation. Where a final reasoned adjudicative decision is needed on question/s of law this falls outside the remit of a mediator. Moreover, the usual inherent confidential nature of arbitration, and other factors, can tend to cause certain disputes involving sensitive commercial issues to be direct towards an arbitrator rather than the more public form of a court room. In other words, in many disputes the way of saving time and costs is not to vary the process used but to make the arbitration more effective.

In light of the last point there has over the last couple of years been an increased focus on expedited arbitration. An expedited arbitration will often see the parties limited in the number of written pleadings they can submit. The deadlines set for the pleadings to be filed will be shorter than in a traditional arbitration. The arbitrator/s will usually be obligated to conclude the reference within a specified timeline. A recent session of United Nations Commission on International Trade Law (UNCITRAL) Working Group II has considered how to revise UNCITRAL’s arbitration rules to best supports such expedited hearings.

Most main arbitration institutions have revised their rules in recent years to allow for expedited arbitrations.  Hamish Lal, a Partner at Akin Gump Strauss Hauer & Feld who often works in the G.C.C notes ' As can arise elsewhere there are often disputes in the Gulf Cooperation Council region which would have been better served by the parties availing of an expedited arbitration but which in fact proceed at an orthodox procedural timetable. I would expect there to be greater use of this temporal approach in the future, but it will not always be a suitable approach - of course each case needs to be considered on its own precise facts.'

Author: Dermot Flanagan S.C & Arran Dowling-Hussey 

[1] Dermot Flanagan S.C is a barrister, arbitrator and mediator working from 33 Bedford Row Chambers in London and the Law Library, Dublin. Arran Dowling-Hussey is a member along with Mr Flanagan of Arbitrators@33BedfordRow members of 33 Bedford Row regularly visit the G.C.C. Mr Flanagan can be contacted at d.flanagan@33bedfordrow.co.uk; Mr. Dowling-Hussey can be contacted at adhussey@33bedfordrow.co.uk

[2] See institutional statistics such as, but not limited to https://iccwbo.org/media-wall/news-speeches/icc-arbitration-figures-reveal-new-record-cases-awards-2018/ (accessed on September 28, 2019)

[3] https://uncitral.un.org (accessed on September 28, 2019)