Jack Hobbs 00:07
Welcome everyone. Welcome to the next instalment of our podcast series on the 2026 ICC arbitration rules. I'm Jack Hobbs. I'm an associate in the dispute resolution team at Clarkslegal and I'm joined again by Christopher Howitt of Three Stone Buildings. Chris welcome.
Christopher Howitt 00:27
Good morning, Jack. Thanks.
Jack Hobbs 00:29
And for those who haven't listened to our first in the series or just looking for a recap, the first podcast in the series gave an over summary of the key changes to the ICC rules. And this podcast expands upon the expedited procedures that were discussed within that first podcast. And just by way of a brief summary of those procedures that we're going to speak about today, there's the expedited procedure, which will be known to ICC arbitration practitioners. It's been around before and there are some small amendments to it. There's the new highly expedited procedure, which is a much more streamlined and time sensitive process and then thirdly, we're going to touch on the new early determination mechanisms. So, starting with the increased threshold for the expedited procedure. It…. Chris, it went from 2 million to 3 million from the 2017 to the 2021 rules. 3 million to 4 million is as expected from this set. You mentioned in our first podcast that it's not necessarily reflective of the rate of inflation and we came to the conclusion that there's probably going to be more cases that fall into that naturally by it being a higher threshold. But just for those of our listeners that haven't gone through an expedited procedure, quick summary in a nutshell of the process.
Christopher Howitt 02:07
Yeah, so this is a process that's meant to be a bit more streamlined than your full ICC arbitration. So, there are various ways that the procedure is curtailed or things are brought forward to take place earlier than would otherwise be the case. So, for example, there's a sole arbitrator, only one, a tribunal of merely one arbitrator, not of three arbitrators, which you might find on a larger arbitration. The CMC takes place within 15 days of receiving the case file. So, your case is up and running within 15 days. That can be significantly quicker than you find under your average ICT arbitration. And the aim is to have a final award within six months. And so this really brings about significant cost savings because the arbitration is more streamlined and it's quicker than your normal ICC arbitration. So, for appropriate disputes where you don't need to go through that process, it's a very attractive process.
Jack Hobbs 03:11
Absolutely, and the ICC has seen many parties opt into the expedited procedure for disputes well over the previous $3 million threshold, right up to over $100 million, which is clearly illustrative of there being a desire for expedited procedures. And, you know, in practice, Chris, is this the party saying that they're prepared to sacrifice an opportunity to make wider submissions for a swift award?
Christopher Howitt 03:42
That's the call that parties will make. And of course, arbitration has to be a bespoke process that is tailored to what parties actually want. There is no point going through a whole ICC arbitration with three arbitrators going to a, you know, long merits hearing with loads of submissions if it's not necessary for the case. So, this is just one way that parties can get to an award quicker and more cheaply than it is the case under the default process.
Jack Hobbs 04:15
I think we're both agreed that for the right case, it's a very effective procedure. We might not see a drastic increase in the amount of arbitrations that use it immediately. But yeah, my view is that the market trend is that there's an increased emphasis on speed when it comes to arbitration awards and this is a good mechanism for facilitating that.
Christopher Howitt 04:39
I agree.
Jack Hobbs 04:41
So, that's the expedited procedure. We'll now move on to the highly expedited procedure, and this is a novel concept within the ICC rules. There are similar streamlined procedures in other rules, such as under the Singapore International Arbitration rules. The benefits in the expedited procedure have ultimately led to this conception and as I mentioned before, the desire of litigants to get their awards as quickly as possible. So, Chris, what is the interplay likely to be between the expedited procedure as one offering and the highly expedited procedure as another?
Christopher Howitt 05:25
Well, as the name suggests, this is the highly expedited procedure and the key difference is that the award would be handed down after three months rather than six months under the normal expedited procedure. I mean, there are other differences. It's not possible to have a hearing under the highly expedited procedure. The case is determined entirely on written submissions. Of course, the highly expedited procedure is opted only. You only do it if you choose to do it. So, parties will be aware of what they're signing up to at the time. There's no monetary threshold for the highly expedited procedure. So, in theory, you could have a billion dollar case that parties want to decide on the heat. But of course, I think there remains discretion, the institution to turn down that case for this process, they'd agree with it. But in theory, it's possible that a high value case that really turns on a limited legal issue is decided under heap. Again, there's also a sole arbitrator, so that's not very different from the expedited process. Again, no terms of reference, that doesn't exist anymore. But where you end up is with your front loaded submissions. You have to put in your case in a full statement of claim where you set out your legal and factual submissions or your supporting evidence and the respondent then replies with its statement of defence. So really, you have to be ready to go at the very start and be sure of your case then, and get it all together and pull the trigger.
Jack Hobbs 07:02
Yeah, I think that's the exact phrase, pull the trigger. I mean, it feels like there's no second chance when it comes to going through this highly expedited procedure. I mean, it's designed with speed at the forefront. And that's why, you know, you have a very tight initial phase, you know, that initial case management conference must be held within seven days of the tribunal receiving the file. And Chris, just in practise with arbitrations that you've been in before, do you think that clients will be prepared to limit the amount of submissions and written documents they can put before a tribunal for the benefit of speed?
Christopher Howitt 07:45
As ever, it will depend on the case, I suspect.
Jack Hobbs 07:48
A lawyer's answer.
Christopher Howitt 07:50
It is a lawyer's answer and I think you'll be familiar too with arbitration solutions that they can often be on the long side. And so, where litigating parties and those representing them can be encouraged, to be a bit shorter and to the point really only restrict those submissions to what's necessary. I think that's welcome too.
Jack Hobbs 08:12
Yeah. And in terms of, you use the phrase being on the short side, that's exactly what the streamlined process aims to achieve. So, the tribunal has a broad discretion to limit document production and the number, length of submissions, witness evidence and expert evidence as well. And there's even jurisdiction to decide the case on documents only, no hearing, no witness experts, if it's appropriate to do so. And as you say, Chris, the final award within three months, you know, I think there'll be an awful lot of parties that are very welcome to getting, you know, an award within that time frame as opposed to waiting years and years and years.
And then finally, onto the third of the procedures that we're going to be speaking about today, the early determination procedure. And as I mentioned in the first podcast, this is akin to a strikeout or summary judgement application where there's a new formal mechanism, primarily under Article 30, that allows the parties to seek the swift dismissal of weak claims and defences early in proceedings. And Chris, you were very hopeful that we'll see this used more and more in our draw proceedings as we go, but there's likely to be a slight reluctance regardless of whether there's going to be a reluctance of uptake or not, it's still going to be a tool in the toolkit, which was a very nice phrase to describe it as you used in the first podcast. And it's going to be available to everyone, but what are the key features of this new procedure?
Christopher Howitt 09:54
That's right, Jack. So this is really a filter that's aimed at weeding out totally hopeless cases. And an application under Article 30 for this process can be brought by any party, the claimant or the respondent. The grounds for relief are where you consider that the other side's case is manifestly without merit. So basically, a similar test for what we'd expect from a strikeout or summary judgement application in the UK. And you could also apply where you think that a claim is manifestly outside the tribunal's jurisdiction. Once this procedure has been invoked, there isn't a specific timeline or timetable that's followed. That's bespoken. I think it will depend on what issues are raised as to whether a tribunal will be asked to decide the application or the papers only. Whether they're short timelines, what submissions will be filed and so forth. We'll see how it's used in practice, because, you know, hypothetically speaking, if you're saying a case is utterly hopeless, an application should be pretty narrow and be able to identify and pinpoint the problems in a case in fairly short order.
Jack Hobbs 11:17
Presumably, in the same way with strike out or summary judgement application, you're not necessarily applying to strike out the entirety of the claims that they're bringing. So, it's likely to have a mechanism in which you can narrow what ultimately advances to the final arbitral hearing, which again has can have significant cost savings if you're arguing over 5 issues as opposed to six, which again is the efficiency with which these rules are trying to are trying to push through. So that's all I have to say about those 3 procedures. Chris, was there any final words or thoughts that you wanted to add? I think the overarching point that we've said throughout this podcast and the first one is these are all pointing at increased efficiency, increased uptake in ICC arbitrations and it's a faster offering at a lower cost.
Christopher Howitt 12:16
Yeah, I agree. And I think in the past, when parties really wanted to streamline procedure, there might have been concerns, oh, is my award going to be not, is it going to be appealable because the other party will complain, oh, I haven't had a chance to put my case properly. Or when it gets to the enforcement stage, will a party pay if it hasn't had a hearing on the merits? I think what we see with these procedures is that fast accelerated procedures are becoming recognised and more commonplace in international arbitration, which will make such challenges much more difficult in the future.
Jack Hobbs 12:53
Yeah. Lovely way to end the podcast, Chris. Thank you very much. There is a third podcast which is going to concern practical takeaways for practitioners and Chris and I hope that you can all join us for that. Goodbye from me.
Christopher Howitt 13:08
Goodbye.
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