Expedited arbitration

International commercial arbitration is often portrayed as an expensive, luxurious, and glamorous form of dispute resolution. Leading members of the international arbitration community talk about hearings in exotic and five-star venues, teams of lawyers on both sides, numerous flights and vast quantities of paper transported across the globe.  

But arbitrations of this kind are outliers. The overwhelming majority of international commercial arbitrations do not go to an oral evidential hearing before a tribunal of three arbitrators. Thousands of arbitrations are conducted on a ‘documents only’ basis (which these days means without paper, the documents being exchanged online), allowing parties and their lawyers in different parts of the world to see proceedings through without the time, expense and environmental waste of international travel.

As an alternative to court proceedings, arbitration offers many advantages but its most important one, the ability to fashion a procedure which is quick, cost effective, and commercial tends to become forgotten. Arbitration does not need to resemble court proceedings and it does not have to be complex.  

There is an assumption that three-member tribunals are the norm and that the ability to choose your own arbitrator is fundamental. However, statistics confirm that sole arbitrators, usually selected by an institution or other appointing authority, are becoming ever more popular. See my LexisNexis Blog post, Arbitration statistics 2019: rise of the sole arbitrator.

More than thirty years ago the London Maritime Arbitrators Association (LMAA) published its Small Claims Procedure (SCP), a set of rules for expedited documents-only fixed-costs ad hoc arbitration before a sole arbitrator. The LMAA sees around 200 SCP cases each year. I have been appointed by the President of the LMAA in a number of SCP arbitrations and have seen them through to awards within a few months from appointment. I discuss the SCP in a chapter A Neglected Blueprint: The LMAA’s Small Claims Procedure in Expedited International Arbitration: Policies, Rules, and Procedures (Herman Verbist and Alan M Anderson ed, Kluwer, forthcoming in 2024).

One of the advantages of a ‘documents only’ procedure is that it allows parties and lawyers in different countries to conduct the proceedings themselves. A simplified procedure of this kind caters for those for whom English may not be their first language, who may not be comfortable with oral advocacy and cross-examination, and may not find it convenient to attend meetings and hearings, including virtual hearings, in a different time zone.  

I was pleased to be appointed as sole arbitrator by the Danish Institute of Arbitration (DIA) in an arbitration under its Rules of Simplified Arbitration (RSA) with the seat in Copenhagen. I was appointed in September 2018 and made my final award in November 2018. The RSA allow an oral hearing but only if the parties agree; the primary procedure is for the case to be settled on the basis of written submissions alone.  

As noted in my LexisNexis Blog post The race to expedite: arbitration’s response to the coronavirus (COVID-19) crisis, both the LMAA’s SCP and the DIA’s RSA were sources of inspiration for me when I assisted with the drafting of the Expedited Arbitration Rules of the London Chamber of Arbitration and Mediation (LCAM).

LCAM is attached to the London Chamber of Commerce and Industry (LCCI) and I was a member of its board of directors. Its Expedited Arbitration Rules, which came into force on 1 June 2020, are designed to be a complete stand-alone documents-only procedure for the resolution of disputes by a sole arbitrator appointed by LCAM. As stated in Article 1.2, ‘The procedure administered by LCAM under the Rules is intended to be simple, expedited and cost effective.’ For information about LCAM, see its website here.