Summary and striking out procedures are an established feature of common law litigation. Summary procedures allow a court to give summary judgment upon application by a party to the proceedings where the opposing party has no real prospect of success and there is no compelling reason to hold a hearing (see, for example, Rule 24 of the Civil Procedure Rules of England and Wales (CPR)). Striking out procedures allow courts to strike out a claim that discloses no reasonable basis for bringing or defending the claim or which amounts to an abuse of process (see, for example, Rule 3.4 of the CPR).

The availability of these procedures is an important reason why many international entities, such as banks and financial institutions, choose to resolve their disputes through litigation in common law courts. They provide a fast and effective means of dealing with unsustainable, unmeritorious and abusive claims and therefore contribute substantially to reducing dispute resolution costs. The absence of similar procedures in international arbitration may be one reason why these entities have been slow to embrace it, even though it is specifically designed to deal with cross-border commercial disputes, which are exactly the kinds of disputes in which these entities are frequently involved.

While it may be argued that the rules of the major arbitration institutions permit tribunals to conduct summary procedures, because most rules do not include these procedures explicitly, most tribunals take the view that they are not entitled to determine matters summarily. In particular, in the English law context, in the absence of express permission to conduct summary procedures, there is a risk that such procedures will fall foul of Section 33 of the Arbitration Act 1996 and lead to a challenge of the award.

Jul-Sep 2018 issue

Freshfields Bruckhaus Deringer LLP