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On 9 July 2021, the United Nations Commission on International Trade Law ("UNCITRAL" or the "Commission") adopted its 2021 Expedited Arbitration Rules (the "Expedited Rules"), following nearly two and a half years of work conducted by the UNCITRAL Working Group II, dedicated to Arbitration and Conciliation.
The adoption of the Expedited Rules shall take effect on 19 September 2021.
The adoption of the Expedited Rules shall take effect on 19 September 2021.
The Commission also adopted, in principle, the draft Explanatory Note to the UNCITRAL Expedited Arbitration Rules (hereafter the "Explanatory Note"), which provides a commentary on the Expedited Rules. The Explanatory Note will be finalised by Working Group II during its next session, due to take place in Vienna in September 2021.
What is an expedited arbitration?
According to the draft Explanatory Note, an expedited arbitration is a "streamlined and simplified procedure with a shortened time frame, which makes it possible for the parties to reach a final resolution of the dispute in a cost – and time – effective manner".
Expedited arbitration proceedings already exist in various arbitration rules[1], which usually provide for the appointment of a sole arbitrator, a simplified procedure (e.g. no terms of reference or oral pleadings), and a limited timeframe for the arbitrator to render an award (usually six months).
Defining features of the UNCITRAL 2021 Expedited Arbitration Rules
What is an expedited arbitration?
According to the draft Explanatory Note, an expedited arbitration is a "streamlined and simplified procedure with a shortened time frame, which makes it possible for the parties to reach a final resolution of the dispute in a cost – and time – effective manner".
Expedited arbitration proceedings already exist in various arbitration rules[1], which usually provide for the appointment of a sole arbitrator, a simplified procedure (e.g. no terms of reference or oral pleadings), and a limited timeframe for the arbitrator to render an award (usually six months).
Defining features of the UNCITRAL 2021 Expedited Arbitration Rules
- Interaction with the UNCITRAL Arbitration Rules
The UNCITRAL Arbitration Rules (hereafter the "Rules") shall incorporate the Expedited Rules in the form of an appendix, and both sets of rules will be applied in conjunction with one another.
In order to clarify how they will interact with the Rules, the Expedited Rules provide a list of the provisions in the Rules that do not apply in case of expedited proceedings, unless the parties agree otherwise.
In order to clarify how they will interact with the Rules, the Expedited Rules provide a list of the provisions in the Rules that do not apply in case of expedited proceedings, unless the parties agree otherwise.
- Application of the Expedited Rules
Whereas expedited procedures usually apply automatically when the amount in dispute does not exceed a certain threshold or if the parties agree that this procedure should apply, the application of the Expedited Rules, pursuant to their article 1, relies solely on the parties' agreement to apply them.
In addition, according to the Explanatory Note, the parties may express this agreement to apply the Expedited Rules after the dispute has arisen, even if the dispute in question or the arbitration clause precedes the entry into force of the Expedited Rules.
In addition, according to the Explanatory Note, the parties may express this agreement to apply the Expedited Rules after the dispute has arisen, even if the dispute in question or the arbitration clause precedes the entry into force of the Expedited Rules.
- Procedure under the Expedited Rules
Firstly, pursuant to Articles 4 and 5 of the Expedited Rules, the initial stages of the arbitration are condensed, in order to limit time and costs. The Notice of arbitration must include a proposal for the designation of an authority to appoint an arbitrator and a proposal for the appointment of an arbitrator, and must be communicated along with a Statement of claim. Within fifteen days of having received the Notice of arbitration, the respondent(s) must communicate a Response to the Notice of arbitration, along with responses to the proposals for the appointment authority and the appointment of the arbitrator. The Statement of defence must be communicated within fifteen days of the appointment of the sole arbitrator.
In addition, pursuant to article 11 of the Expedited Rules, the sole arbitrator may decide not to hold hearings, after inviting the parties to express their views on the matter and in the absence of a request from the parties to hold hearings.
Finally, regarding evidence, article 15 of the Expedited Rules provides that the sole arbitrator retains a certain discretion regarding the taking of evidence. Indeed, the sole arbitrator may decide which documents or other evidence are to be produced by the parties. The sole arbitrator may also reject a request for a document production stage, unless such a request is made by all the parties to the arbitration.
In addition, pursuant to article 11 of the Expedited Rules, the sole arbitrator may decide not to hold hearings, after inviting the parties to express their views on the matter and in the absence of a request from the parties to hold hearings.
Finally, regarding evidence, article 15 of the Expedited Rules provides that the sole arbitrator retains a certain discretion regarding the taking of evidence. Indeed, the sole arbitrator may decide which documents or other evidence are to be produced by the parties. The sole arbitrator may also reject a request for a document production stage, unless such a request is made by all the parties to the arbitration.
- The arbitral tribunal
Pursuant to article 7 of the Expedited Rules, the arbitral tribunal is composed of only one arbitrator, unless the parties agree otherwise.
Moreover, if the parties do not reach an agreement on the appointment of an arbitrator within fifteen days of having received the claimant's proposal, the appointing authority shall appoint a sole arbitrator according to the procedure set out in article 8(2) of the Rules[2]. In the absence of an agreement on the appointing authority, any party may refer to the Secretary General of the Permanent Court of Arbitration to designate an appointing authority or to act as an appointing authority.
Moreover, if the parties do not reach an agreement on the appointment of an arbitrator within fifteen days of having received the claimant's proposal, the appointing authority shall appoint a sole arbitrator according to the procedure set out in article 8(2) of the Rules[2]. In the absence of an agreement on the appointing authority, any party may refer to the Secretary General of the Permanent Court of Arbitration to designate an appointing authority or to act as an appointing authority.
- Duration of the proceedings
According to article 16 of the Expedited Rules, the award should be made within six months from the date of the appointment of the sole arbitrator, unless the parties agree otherwise.
In exceptional circumstances, the sole arbitrator has the power to extend this time frame. However, the total time between the appointment of the sole arbitrator and the rendering of the award may not be longer than nine months, unless the parties agree otherwise.
Importance of the Expedited Rules
The Expedited Rules, which aim at striking a balance between the efficiency of the arbitral proceedings and the rights of the parties to due process and to fair treatment, reflect a broad international consensus concerning expedited proceedings in international arbitration. Indeed, the sessions of the Working Group II were attended by more than fifty member States, as well as other observers including States and major arbitral institutions (ICSID, ICC, CEPANI, the Chartered Institute of Arbitrators, the American Bar Association and many more).
Therefore, the Expedited Rules constitute an important additional step towards unifying and broadening the use of expedited procedures in international arbitration.
In exceptional circumstances, the sole arbitrator has the power to extend this time frame. However, the total time between the appointment of the sole arbitrator and the rendering of the award may not be longer than nine months, unless the parties agree otherwise.
Importance of the Expedited Rules
The Expedited Rules, which aim at striking a balance between the efficiency of the arbitral proceedings and the rights of the parties to due process and to fair treatment, reflect a broad international consensus concerning expedited proceedings in international arbitration. Indeed, the sessions of the Working Group II were attended by more than fifty member States, as well as other observers including States and major arbitral institutions (ICSID, ICC, CEPANI, the Chartered Institute of Arbitrators, the American Bar Association and many more).
Therefore, the Expedited Rules constitute an important additional step towards unifying and broadening the use of expedited procedures in international arbitration.
[1] For examples of provisions in other current arbitration rules establishing an expedited procedure, we refer to the reader to article 30 of the 2021 ICC Rules, article 29 of the 2020 CEPANI Rules, or article 5 of the 2016 SIAC Rules.
[2] Article 8(2) of the Rules provides that: "The appointing authority shall appoint the sole arbitrator as promptly as possible. In making the appointment, the appointing authority shall use the following list-procedure, unless the parties agree that the list-procedure should not be used or unless the appointing authority determines in its discretion that the use of the list-procedure is not appropriate for the case: (a) The appointing authority shall communicate to each of the parties an identical list containing at least three names;11 (b) Within 15 days after the receipt of this list, each party may return the list to the appointing authority after having deleted the name or names to which it objects and numbered the remaining names on the list in the order of its preference; (c) After the expiration of the above period of time the appointing authority shall appoint the sole arbitrator from among the names approved on the lists returned to it and in accordance with the order of preference indicated by the parties; (d) If for any reason the appointment cannot be made according to this procedure, the appointing authority may exercise its discretion in appointing the sole arbitrator."