Preliminary Determination and Early Dismissal in Arbitration: A Distinction Without a Difference?

Authors: Samridhi Shrimali & Alay Raje*

I. Setting the context

The launch of the ICC Arbitration Rules 2026 has attracted considerable commentary. However, scant attention has been devoted to the ICC’s missed opportunity to codify a critically important provision, a rule concerning ‘preliminary determination of issues’ (“Preliminary Determination”), as it proceeds with the express introduction of a mechanism for ‘early disposition mechanism for claims and defenses’ under Article 30 of the ICC Rules (referred to herein as “Early Dismissal”, across all institutional rules notwithstanding their institute-specific nomenclature). While Preliminary Determination is a mechanism enabling arbitral tribunals to conclusively decide an issue on assumed or agreed facts, Early Dismissal is a mechanism that allows arbitral tribunals to summarily dispose of patently unmeritorious claims or defenses. 

This brings into sharp focus the SIAC Arbitration Rules 2025 which depict a nuanced procedural understanding and facilitation of both mechanisms. It distinctly embodies the Preliminary Determination mechanism and the Early Dismissal mechanism under Rules 46 and 47, respectively. Notably, Article 30 of the ICC Arbitration Rules 2026 is in essence analogous to Rule 47 of the SIAC Arbitration Rules 2025.

The ICC’s omission reflects a broader and persistent conflation across major institutional rules between the two procedurally and doctrinally distinct mechanisms. This conflation carries real consequences like procedural error risks, analytical confusion for practitioners and tribunals alike, and missed opportunities for efficient case management. This article argues that both mechanisms serve different functions, operate on different standards, and warrant separate codification.

II. The doctrinal distinction

Preliminary Determination mechanism concerns the resolution of a discrete legal or factual issue by the arbitral tribunal, a threshold question whose answer may avoid the need for a full hearing on the merits.

In the absence of judicial authority on the precise scope of Preliminary Determinations in the arbitration context, the authors draw on common law principles developed in the litigation sphere. As courts have recognized, the hallmark of an appropriate preliminary issue is that its resolution has the real potential to save the parties from litigation costs and a substantially longer proceeding [[2022] EWHC 2431 (Comm) and [2023] SGHC 100]. Such issues are typically self-contained, as the facts are generally assumed, agreed and established.[1] For example, questions of jurisdiction, the dispute is statutorily barred, barred by limitation period, locus standi, res judicata, and compliance with pre-arbitral procedural requirements. Where resolution requires contested factual inquiry, witness evidence, cross-examination, they lose their procedural justification to come within the category for Preliminary Determination and to act as an exception to the general rule of a full hearing on merits.[2]

Rule 46 of the SIAC Arbitration Rules 2025 reflects these principles precisely, to enable a party to apply before the arbitral tribunal for the determination of an ‘issue’ and not a claim or defense, on the basis that doing so will narrow the scope of the arbitration proceedings or dispose of other threshold issues in the arbitration, without a full fact-finding exercise.

Early Dismissal, by contrast, operates on altogether different terrain. The target under Early Dismissal mechanism is the summary disposition of a claim or defense, i.e., a substantive legal position advanced by a party, in contrast to an isolated issue under Preliminary Determination. For example, a claim for frustration of contract [[2024] SGCA(I) 4], obligation to repay an amount over occurrence of an event of default [[2024] SGHC 309] or claim for breach of representations and warranties under a contract. The applicable threshold is accordingly a higher one, given that the party has the onus to demonstrate that the claim or defense is “manifestly without merit”, “manifestly without legal merit”, or “manifestly outside the jurisdiction of the tribunal”. Additionally, the English courts have in litigation context applied the “no real prospect of success” standard while summarily disposing of claims or defences [[2009] EWHC 339 (Ch)]. This standard, however, is not utilized by any of the arbitral institutions in their rules.

The SIAC Arbitration Rules 2025 recognize this distinction and have separately codified the Early Dismissal mechanism under Rule 47.

Although Rules 46 and 47 may appear to briefly overlap as the former covers ‘issues’ including questions of jurisdiction and the latter permits dismissal of a ‘claim or defence’ being “manifestly outside the tribunal’s jurisdiction”, they operate on distinct planes. Rule 46 addresses challenges to the tribunal’s jurisdiction (for example, invalid arbitration agreement, improper constitution of tribunal, lack of impartiality). Rule 47 concerns whether specific claims or defences fall within the scope of that jurisdiction. To illustrate: where an arbitration clause in a Shareholders’ Agreement stipulates – “all disputes arising out of the contract, except those relating to the management of the company, shall be resolved through arbitration,” a claim for oppression and mismanagement would be ripe for Early Dismissal but not an ‘issue’ eligible for Preliminary Determination.

Therefore, viewed together these two mechanisms serve different procedural objectives, are tested against different standards, and produce different outcomes. As a corollary, their application in arbitration proceedings ideally ought not to be conflated.

III. An institutional survey of Early Dismissal provisions

Analogous provisions exist across major institutional rules, but their scope and formulation vary significantly. The following table summarizes the key differences:

IV. The existing quagmire:

A. The issues with the rules of ICSID, ICC, and LCIA

Notably, each of these institutions have missed the opportunity to have a separate express provision for Preliminary Determination. In such cases, parties and tribunals are left to rely on general case-management powers. The argument is not that tribunals lack the power to undertake a Preliminary Determination in the absence of an express rule; most modern institutional rules confer sufficiently broad case-management powers to support such an approach. The problem is that, in practice, tribunals are often reluctant to adopt procedurally innovative mechanisms unless expressly authorized to do so. The well-documented phenomenon of “due process paranoia”, which is the tendency of tribunals to favour procedural conservatism in order to insulate awards from challenge, means that express rules matter, as also recognized by the UK Law Commission Report 2023[3]. Where the existence or scope of a power is uncertain, tribunals may decline to exercise it despite possessing the authority to do so. By virtue of their measured scope, institutions should enact specific provisions addressing the Preliminary Determination mechanism, as done by SIAC.

Further difficulty arises in respect of the LCIA Arbitration Rules 2020. Article 22.1(viii) permits Early Dismissal of claims or defenses on the ground of them being “inadmissible”, creating a standard that is lower than the ‘manifest’ standard generally used in Early Dismissal provisions and analytically, sits closer to the essence of Preliminary Determination mechanism. An inadmissibility argument is typically premised on a threshold issue (such as the absence of a condition precedent, or non-compliance with a pre-arbitral procedure clause). This merely operates as a gateway to the substantive claim and is not the claim itself. In the absence of a distinct Preliminary Determination provision, the risk of uncertainty regarding the applicable procedural test, potential prejudice to parties’ procedural rights, and inconsistent treatment of admissibility objections become unavoidable.

A similar position is reflected in the ICC Arbitration Rules 2026. Despite being widely regarded as one of the most consequential revisions to ICC arbitral procedure in the past decade, it stopped short of codifying a distinct Preliminary Determination mechanism to clarify the procedural framework for the summary resolution of ‘issues’.

The SIAC arbitration underlying the judgment in [2025] SGHC(I) 16 can offer an illustration to our discussion. Conducted under the pre-2025 SIAC Rules (which lacked an express Preliminary Determination provision), one party sought Early Dismissal on the ground that no valid arbitration agreement existed between the parties. This was a classic jurisdictional threshold issue, and a paradigm candidate for Preliminary Determination, which could have been decided basis the contractual documents, without a full evidentiary hearing.

Although the application succeeded before the tribunal, the issue was unusually straightforward, making it easy to satisfy the ‘manifestly’ threshold. Notably, before the court, the consideration was confined to the interim anti-suit injunction rather than the Early Dismissal application. However, if the issue was more complex (for example, non‑signatory disputes under the group of companies doctrine), the ‘manifestly’ standard would have been difficult to satisfy. Absence of a Preliminary Determination mechanism in such cases effectively imposes a burden that the law does not otherwise require. At the time, the party had no choice but to invoke Early Dismissal, but under the SIAC Arbitration Rules 2025, a party in the same position could proceed under Rule 46 without bearing that burden.

B. The issues with the rules of HKIAC, SCC, and JAMS

The rules of these institutions compound the difficulty by intermixing the two mechanisms within a single composite provision. Practitioners and tribunals must first determine whether the application concerns disposition of a discrete issue or an early adjudication of a claim or defence basis its merits and then determine which standard of proof ought to apply, all without express procedural guidance. In such practice, three specific difficulties arise:

• a tribunal may dismiss an application seeking disposition of an ‘issue’ by applying the higher ‘manifest’ standard instead of merely analysing whether the application concerns a self-contained question that can be disposed-of based on agreed or assumed facts;
• a tribunal may permit dismissal of a claim or defence on the basis of the lower ‘no real possibility of an award on assumed facts’ standard, which may not cut eyes with the enforcement court, if such award’s enforcement is sought in a jurisdiction supporting the ‘manifest’ threshold. Such award may also be prone to setting aside if the opposite party alleges before the seat court that the tribunal applied a standard contrary to settled law; and
• where a party seeks summary disposal of both a discrete issue and a claim or defence simultaneously, the applicable standard for each may differ, and the tribunal may not be able to effectively adjudicate the same owing to a composite provision, which is structurally ill-equipped to address such a scenario.

The Hong Kong Court’s decision in [2026] HKCFI 2444, in the context of the HKIAC Administered Arbitration Rules 2024, cursorily illustrates this difficulty. In-reality, the decision turned on the court’s rejection of the claimant’s challenges such as: the defendants’ failure to precisely identify the points of law or fact, rendering the tribunal’s use of power irregular; denial of a fair opportunity to the claimant to present its case; excess of jurisdiction, with the tribunal making findings beyond the scope of the application; and (d) breach of Hong Kong’s public policy. In the process, the court penned-down an observation made by the defendants’ counsel that the phrase “points of law or fact” in Article 43 gives the Early Dismissal mechanism therein a broad scope, extending beyond claims, defences, counterclaims, and crossclaims to any specific legal or factual point. Accordingly, confirming that Article 43 is being read as a composite provision, one that practitioners and tribunals must navigate without clear internal guidance as to which procedural logic applies to a given application.

V. Lack of aid even outside the institutional framework?

The UNCITRAL Note 21 on Early Dismissal and Preliminary Determination (2023) illustrates the same problem at the level of international soft law. Despite its title, the Note essentially solely addresses Early Dismissal as if it is treating Preliminary Determination a part of the same mechanism, rather than a distinct tool. Practitioners across jurisdictions are thereby left with little guidance on the distinction.

Moreover, the newly inserted Section 39A of the Arbitration Act 1996 (introduced by the UK Arbitration Act 2025) raises similar concerns. It empowers tribunals to summarily determine a “claim, defence, or issue” where a party has “no real prospect of succeeding”. The provision is problematic both in its breadth and in its adoption of a single threshold for conceptually distinct procedural mechanisms. The UK Law Commission Report 2023 indicates that Section 39A was intended to provide a clear statutory basis for summary disposal. However, it arguably obscures the distinction between Preliminary Determination and Early Dismissal in two respects. First, while framing its recommendations around summary disposal of “issues” in arbitration, it extends the provision to any issue arising in a claim or defence, including jurisdictional objections, without recognising the fundamentally different nature of issues and claims or defences. Secondly, it adopts the “no real prospect of succeeding” standard basis its established use in litigation, without considering whether that threshold is equally suited to each category.

While this is an acknowledged departure from the ‘manifest’ standard, the Law Commission has done so without a correct legal justification as the precedents it relied upon in support of this standard [[2009] EWCA Civ 1098 and [2009] EWHC 339 (Ch)], concern the disposal of “claims”, not standalone “preliminary issues”. The difficulty is compounded by the fact that this standard has not been adopted in major institutional arbitration rules, thereby creating a parallel procedural threshold for UK-seated[4] arbitrations without realizing that such unified standard is not appropriate for both preliminary issues and substantive claims or defences. This is not a case of legislative harmonization; absent any cogent legal backing. These recommendations have ultimately trickled down in Section 39A’s text, which permits summary determination of issues and claims or defences alike. For UK-seated arbitrations, this raises an unanswered question of whether a tribunal determining a preliminary jurisdictional issue under Section 39A must apply the same standard as one summarily dismissing a substantive claim.

For jurisdictions like India and Singapore, there is no statutory provision in this context, leaving parties hanging in arbitrations seated in these jurisdictions.

VI. Way forward:

Separately codifying Preliminary Determination and Early Dismissal mechanisms will not eliminate flexibility; it will channel it, and such clear and unambiguous provisions will balance efficiency with procedural fairness and thereby act as a weapon against due process paranoia. Expressly codifying these mechanisms remains important for encouraging tribunals to make effective and correct use of these tools, and to counterbalance the analytical confusion, inconsistent standards, and tribunal reluctance.

In the interim, by way of practical guidance, the authors propose the following decision tree for tribunals confronted with an application for Early Dismissal or Preliminary Determination:

• Does the application concern determination of a distinct issue (e.g., jurisdiction, limitation, admissibility, contractual interpretation) or an early adjudication of a claim or defence (e.g., a claim for breach of contract; a frustration defence)?
• If the former: Can it be resolved on assumed, agreed, or undisputed facts without a full evidentiary hearing? If yes, Preliminary Determination procedure may be allowed to be instituted.
• If the latter: Is it unsustainable such that no reasonable tribunal could find in the applicant’s favour? If yes, Early Dismissal procedure may be allowed to be instituted.
• If the application does not clearly fall within either category, or if the issue or claim or defence requires contested factual inquiry and detailed evidence, the application should be refused and the matter should proceed to a full hearing.

Notably, under the SIAC model, tribunals retain discretion within each mechanism, but that discretion is exercised within a framework that provides clear guidance on the applicable standard. By codifying Preliminary Determination and Early Dismissal in separate provisions, SIAC has recognised that the two mechanisms serve different procedural objectives and should not be treated interchangeably. This drafting choice promotes conceptual clarity, procedural integrity, and efficient case management, while signaling to practitioners and tribunals which tool is appropriate in a given situation. Greater consistency across institutional rules would not only promote conceptual coherence but also encourage tribunals to exercise these powers with greater confidence, reassuring them that they are applying a recognised procedural tool rather than venturing into uncharted territory.

* Alay Raje: is an Associate in the Dispute Resolution practice at CMS IndusLaw, India. He advises clients across a broad range of sectors, including multinational corporations, technology companies, healthcare businesses, and high-net-worth individuals, on complex commercial and civil disputes, domestic and international arbitration, and white-collar crime matters. His practice encompasses disputes arising from commercial contracts, labour and employment, succession, intellectual property, and criminal law. He regularly represents clients before the Supreme Court of India, High Courts, and various tribunals.

Samridhi Shrimali: is a practising advocate based out of New Delhi. She specialises in restructuring and insolvency litigation, as well as arbitration-related disputes. She advises and represents insolvency professionals, financial creditors, and corporate clients in high-value proceedings before the National Company Law Tribunals, the National Company Law Appellate Tribunal, High Courts, and the Supreme Court of India. Her practice also includes advising on commercial arbitration strategy. Earlier, she was engaged as an Associate at a leading Indian Law Firm.

[1] McLoughlin v Jones [2001] EWCA Civ 1743.

[2] Aldersgate Estates Ltd v Ham Construction Ltd [2013] EWHC 104 (TCC).

[3] Law Commission, Review of the Arbitration Act 1996: Final report and Bill, Law Com No. 413 (2023).

[4] The Arbitration Act 1996 governs arbitrations in England and Wales and Northern Ireland. Arbitrations in Scotland are governed by the Arbitration (Scotland) Act 2010.