The Bahrain Chamber for Dispute Resolution (BCDR) has been tasked with drafting the Kingdom of Bahrain's official submissions to Working Group II of the United Nations Commission on International Trade Law (UNCITRAL) on issues relating to expedited arbitration. BCDR's CEO, Professor Nassib G. Ziadé, leads the Bahraini delegation to Working Group II.
The Working Group, whose 71st session will be held in New York from 3 to 7 February 2020, has been given a broad mandate that may result in UNCITRAL (i) providing guidance to arbitral institutions on best practice and common principles aimed at striking a balance between the expeditious resolution of commercial disputes and respect for due process; and (ii) developing best practice in the early dismissal of claims through summary procedure.
While recognizing the increasing demand from users for improvement in procedural efficiency, the Bahraini submissions strongly support the view that any efforts to promote efficiency must not compromise due process, the effective enforcement of arbitral awards, or the integrity of arbitral proceedings - all mainstays of international arbitration.
Bahrain's submissions explain how improving efficiency at all stages of the conduct of arbitral proceedings, while safeguarding the fundamental right of the parties to be heard, is at the core of the 2017 Rules of Arbitration of BCDR-AAA (the "Rules"), under which, arbitral tribunals have been given wide powers aimed at facilitating efficient arbitration.
The submissions focus on expedited arbitration under Art. 6 of the Rules, which provides the framework for accelerated arbitration in cases in which the combined amount of any monetary claims does not exceed USD 1 million, or in which the parties have agreed in writing that the expedited procedure will be adopted irrespective of the sums at issue. Key characteristics of expedited arbitration under the Rules include: (i) the mandatory appointment of a sole arbitrator, even where there is a pre-existing agreement that there should be three; (ii) case-frontloading, which provides that a claimant's request for arbitration and a respondent's response must take the form of a statement of claim and a statement of defense and any counterclaim; and (iii) a 30-day time limit from the close of proceedings for the issuance of the final award. It is anticipated that this expedited procedure will widen access to justice for parties (especially small and medium-sized businesses) with relatively modest claims who may otherwise be deterred from commencing an arbitration out of a concern for lengthy and costly proceedings.
Another innovation addressed in the submissions is the summary procedure set out in Art. 18 of the Rules, which empowers the tribunal, in broad and flexible terms, to determine on a summary basis any legal or factual issue considered by the applicant party (and agreed by the tribunal) to be material to the outcome of the arbitration. As a further safeguard of due process, all other parties are given the opportunity to respond to the application for summary procedure, and if the application is allowed, the tribunal must promptly notify the parties of the subsequent procedural steps to be taken.
The submissions conclude that provisions relating to expedited proceedings and summary procedure are welcome developments in the evolution of international arbitration and should become the norm.
Click here to read the Kingdom of Bahrain's submissions in full.