Summary dispositions in international arbitration

Abstract

The so-called summary dispositions or disposals are expedited mechanisms for resolving disputes in international arbitration. Their rationale is to avoid protracted and potentially costly proceedings for the parties in cases that are manifestly frivolous, without merit, or outside the jurisdiction of the arbitral tribunal. Their adoption has not been without difficulty, as the hallmarks of efficiency and speed that characterize this type of decisions often come into tension with the parties’ fundamental due process guarantees, such as the right to present their case, the right to be heard, and the right to a fair and impartial treatment by the arbitral tribunal.
In the absence of specific legal provisions or arbitral rules, summary dispositions generally derive from the arbitral tribunal’s authority to conduct the proceedings.
Over time, the possibility of adopting this type of decisions has been expressly recognized in certain arbitration rules, both in international commercial arbitration and in investment arbitration. The recent reform of the English Arbitration Act is a notable example of their adoption at the legislative level.
This article will outline some of the principal features and challenges of this expedited mechanism, which is gaining increasing practical prominence. To that end, and from a methodological standpoint, this study will examine their recognition in legal instruments, as well as their treatment in various international arbitration cases. In that sense, the article also addresses the criteria guiding their application and reflecting their exceptional nature. The central or core proposition advanced in this article is that the threshold for granting summary dispositions is high, such that decisions of this kind –dismissing a claim or defense– ultimately depend on whether a particular issue is obviously, clearly, and manifestly without merit.