Summary Disposition in Arbitration

By on December 14, 2017

Executive Summary of an article written by
John Shope and Diana Tsutieva, Foley Hoag LLP

When we ask in-house counsel to explain why their companies don’t use arbitration clauses, the answer frequently includes the assertion that “you can’t get summary judgment in arbitration.” That has been true historically, but it is changing. Leading arbitration tribunals now expressly permit summary disposition; arbitration panels are issuing partial or total summary dispositions; courts are enforcing these awards; and parties are including provisions in their arbitration agreements to encourage summary disposition.

Three major arbitral institutions have recently implemented rules on summary disposition. The International Chamber of Commerce (ICC) Rules for “expedited proceedings” provide that the tribunal may decide the case on documents only, without examination of witnesses or even a hearing. The latest revised Rules of the Arbitration Institute of the Stockholm Chamber of Commerce expressly permits summary procedure for issues of fact and law, and arguments that pleadings are legally insufficient. The latest Singapore International Arbitration Centre Rules provide for early dismissal of a claim or defense. In the United States, the AAA and JAMS now explicitly provide for summary disposition in their rules.

The best way to preclude any issue of enforcement or arbitrator reluctance is to include a provision for summary disposition in the agreement to arbitrate. One Big Four accounting firm’s standard engagement letter, for example, provides that “the arbitrators may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on those issues.”

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