Arbitrations, both international and domestic, are often criticized for being inefficient and expensive. In an effort to address this issue, the major arbitral institutions of the world are revisiting their rules to include specific provisions aimed at streamlining arbitral proceedings. The adoption of summary judgment procedures is seen as one such mechanism, which is rapidly gaining acceptance in the international arbitration community.

A summary procedure in arbitration essentially allows either/any of the contesting parties to obtain a quick and early determination on the merits of the claim or defence without going through the entire arbitral process of submitting full evidence and arguments. It is not to be confused with the “Fast-Track procedure” provided in Section 29B of the Arbitration & Conciliation Act, 1996 (“Act”) which effectively condenses the entire proceedings before the Tribunal.

The arbitral tribunals have been hesitant to adopt summary award procedures mainly due to two reasons. Firstly, the tribunal has to confirm whether it has jurisdiction to adopt summary judgment procedures, either by way of an express agreement between the parties or in cases where the laws of the seat support such jurisdiction. It may be borne in mind that under the Indian arbitration law, there is no express provision that permits summary determination of claims. The discretion vested with the tribunal under Section 19(3) of the Act is not a blanket one and operates only in the absence of an agreement between the parties. Accordingly, it is uncertain whether arbitral tribunals seated in India have the jurisdiction to adopt summary award procedures. Secondly, the tribunal has to further ensure that the summary procedure it intends to adopt will not render the award unenforceable or liable to be set aside. An award-debtor, relying on Section 18 of the Act may succeed in establishing that he was not given a ‘full opportunity’ to present its case. Furthermore, enforcing a summary award in a jurisdiction contracted with the New York Convention may be opposed to its notions on public policy. Arbitral tribunals, unlike civil courts are creatures of party consent, subject to the laws of the seat and the institutional rules. Therefore, to empower the tribunals and enlarge the scope of their discretion (in the interest of justice), it is imperative that a change in perspective must ripple from the lawmakers and the institutions.

In stark contrast to the arbitration regime, common law jurisdictions have empowered their civil courts with summary disposal powers since the turn of the 20th century. In India, Order XXXVII of the Code of Civil Procedure, 1908 (“CPC”) enlists the classes of suits amenable to a summary disposal in accordance with the rules stated in the Order itself. The provisions under Order VII Rule 11 of the CPC empower the Court to reject a plaint at the threshold if the averments do not disclose a cause of action or are barred by the law of the land. Provisions enabling a party to obtain preliminary decrees (Order XX Rule 12) and judgment on admissions (Order XII Rule 6) that often dispense with the requirements of strict proof through formal evidence are also well covered under the Code. Likewise is the scenario in England, where under the Civil Procedure Rules 24.2, a court can grant summary judgments, when the claimant or the defendant has ‘no real prospect’ of succeeding in its claims or defence. The burden of proof in summary judgment applications is higher than the ordinary ‘balance of probabilities’ test. A party seeking a judgment in a summary suit must present to the Court that granting summary relief will not contravene the accepted notions of natural justice. Moreover, the defendant is given an opportunity to demonstrate before the Court that triable issues exist which merit a full hearing on sworn evidence. It has been well settled that these provisions do not encroach upon the notions of natural justice or the right to fair trial and are considered quintessential to civil justice administration. If this is the position, then why can’t a similar regime be incorporated in arbitration proceedings, albeit subject to consent of the parties, supported by the law of the seat and procedurally governed by the rules of the institutions.

The Singapore International Arbitration Centre (SIAC) was the first major institution to expressly incorporate a summary procedure in international commercial arbitrations. Rule 29.1a of the new SIAC rules w.e.f 01st August, 2016, gives either party the right to apply for an early dismissal of a claim or a defence on the basis that it is “manifestly without legal merit”. Rules 29.3 and 29.4 enable the Arbitrator, upon receipt of such an application, to decide the same (within 60 days) by passing a speaking order after giving the parties an opportunity to be heard. Following SIAC’s footsteps, the Stockholm Chamber of Commerce (SCC) also revised its rules w.e.f. 01st January, 2017, which give summary disposal powers to the tribunal subject to parties being given an “equal and reasonable opportunity” to present their case. These institutions have not only given wings to the tribunals but are also chartering the course of their flight by mitigating the risks associated with jurisdiction and enforcement.

In “Travis Coal Restructured Holdings Llc v Essar Global Fund Ltd1”, the High Court, Queens Bench Division of the UK held that the adoption of summary procedure in an International Chamber of Commerce (“ICC”) Arbitration did not amount to a denial of the due process. The judgment is of great significance since Section 33(a) of The Arbitration Act, 1996 provides that the parties must be given a reasonable opportunity to present their case. Furthermore, even the ICC Arbitration Rules do not expressly provide for summary disposal procedures. This Court held that so long as the parties are in agreement (or were in agreement at the time), the procedure adopted is compliant with the principles of natural justice and there are no disputed issues of fact relevant to the summary judgment application, the adoption of summary judgment procedures need not offend the provisions of The Arbitration, 1996.

The express incorporation of summary procedures by the SIAC, SCC and the judgment passed in the Travis case will hopefully get our lawmakers and institutions to revisit their provisions so as to ressurect the perception of arbitration as a fair, expeditious and cost effective mode of dispute resolution. Incoporation of rules permitting summary awards in a manner which uphold the indispensable doctrines of arbitration jurisprudence such as natural justice, equality of treatment, party autonomy and fair play will go a long a way to enhance the ability of the arbitrators to expedite the completion of arbitrations where a party’s claim or defence manifestly lacks merit.