Author: Dina D. Prokić*
Published: May 2018
Description: Over the years, arbitration seems to have fallen victim to its own success. While in previous decades, arbitration was an attractive alternative to lengthy court proceedings, it is nowadays increasingly being labeled as “offshore litigation.” Users complain about it being “too cumbersome, too expensive, too legalistic” and “too time consuming.” Business executives, for example, tend to hope to resolve their disputes of value of $5 million – $10 million within two to three months. This expectation clearly has no basis in practice, since proceedings conducted under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC Rules”) usually last between 6 to 10 months; under the Swiss Rules of International Arbitration (“Swiss Rules”) – 10 months, and under the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) – 11.7 months. It takes more than a year to complete proceedings under the London Court of International Arbitration Rules (“LCIA Rules”), the International Centre for Dispute Resolution Rules (“ICDR Rules”) and in Austria (16, 16-24 and 18 months, respectively).
A frequently posed question is “whose duty is it to ensure efficiency”? The “arbitrator’s” is a common answer. 82.8% of surveyed arbitrators consider “getting the award out promptly” to be the most important goal when drafting their decision. The LCIA Rules explicitly state that one of the tribunal’s general duties is “a duty to adopt procedures suitable to the circumstances of the arbitration, avoiding unnecessary delay and expense, so as to provide a fair, efficient and expeditious means for the final resolution of the parties’ dispute.” This, however, does not mean that other participants in the process need not contribute to efficiency. Achieving a truly expedited arbitration will generally require all parties to the arbitration to “buy in” to the process. As aptly stated in the ICC Rules, “The arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.”
A more appropriate question, in my opinion, is “what can be done to ensure efficiency”? Clearly, no single recipe for success exists.
*Dina D. Prokić is a Visiting Foreign Consultant at Wilmer Cutler Pickering Hale and Dorr, LLP (London, UK).