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Alternative Dispute Resolution | MONDAY, AUGUST 7, 2017 | S3
appointed by the institution, with reduced arbitrator fees.
Expedited arbitration procedures are con- densed. The statement of claim and answer must include all facts, claims, counterclaims, and defenses, and be accompanied by all evidence that a party intends to rely on. If oral hearings are permitted, and they not always are, they are abbreviated, and typi- cally do not exceed three days. Finally, the time limits applying to the various stages of the arbitral proceeding, including deadlines for submissions and the tribunal’s orders and decisions, are shortened. In fact, the tribunal is to render the final award in a considerably short time-period, when compared to regu- lar or non-expedited arbitration procedures, sometimes as fast as three months from the commencement of the proceedings.2 Most expedited arbitration rules require the award to be issued within six months of initial filing.
Pros and Cons
In practice, expedited arbitration may have considerable advantages. Where the number and complexity of issues are limited and well- defined, expedited arbitration may yield reduced costs to all parties. Further, because a single arbitrator typically presides over an expedited arbitration, arbitrator fees are typi- cally significantly reduced. Attorney fees are also usually significantly less, although the intensity of the effort required to complete an expedited arbitration may mitigate the
There is no one-size-fits-all answer. The key is to ensure that the dispute resolution process is thoughtfully selected by the parties to meet their needs. Only the parties can make that determination for themselves.
construction or joint venture dispute that arises in the midst of a project in which delay may be very costly to both parties and in which it is more important to get an answer quickly than it is to get the “right” answer (due to the limited time-frame, the evidentiary record will inevitably be more limited than it otherwise could be).
Second, parties should consider whether a sole arbitrator makes sense. Major insti- tutions typically select sole arbitrators for expedited cases from prescribed lists. Par- ties must consider whether a single decision- maker would be able to manage an expedited dispute on his or her own, depending on the anticipated complexity of the dispute and underlying issues.
Third, parties should ponder how fast is too fast. In other words, can the types of disputes which the parties anticipate be resolved on a tight time-frame? If so, how much time will the parties and the tribunal need, given the likely issues, the volume of documents and num- bers of witnesses that will be involved? Also, is management willing to commit the time that will be needed to complete the dispute resolution process on an expedited basis? And finally, are the parties willing to take the inevitable risk that an expedited process may yield an award with less reasoning and time for careful deliberation by the tribunal?
Fourth, if the parties want an expedited arbitration process, it is preferable to use an established institutional framework over an ad hoc expedited procedure. » Page S10
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amount of cost reduction to some extent. Expedited procedures also tend to facilitate a more efficient dispute resolution process. Because deadlines are substantially curtailed, parties do not have time to focus on irrelevant matters, and instead are forced to focus on
key elements of their claims or defences. Nonetheless, expedited proceedings pres- ent some challenges. While arbitrator avail- ability is a hurdle even under traditional rules, it is even more acutely an issue in expedited proceedings. Preferred arbitrators with the necessary expertise may not be available on short notice to immediately immerse them-
selves and produce an expedited award. Limited time and demanding deadlines for counsel and arbitrators may also impact the quality of legal representation and the final award. Furthermore, parties must also con- sider that while the final outcome may be faster, an expedited process will require an intensive time commitment for witnesses, in- house counsel, and executives. Therefore, parties should also consider the complexity of a dispute, and the demands associated with a substantially expedited schedule, when esti- mating fees and costs, being conscious that
there is not an absolute correlation between shorter and cheaper. The parties should also consider that some disputes may be too complex for an expedited resolution, such as disputes that require significant expert witness investigation, analysis and testimony that sometimes cannot be rushed.
Targeting the Right Disputes, Procedures
Because of the idiosyncrasies an expedited process presents, the key for parties consid- ering opting for such procedures is targeting the right disputes. To do so, they should bear in mind five main considerations.
First, parties should consider quantum and complexity. Some major arbitral institutions have a quantum threshold under which expe- dited procedures automatically apply. How- ever, quantum and complexity do not always correlate; some high-dollar value claims turn on a relatively narrow issue that is suitable for expedited resolution, while some lower-dollar claims might present layered, complex issues that cannot be resolved quickly. Further, par- ties may want to resolve high-value disputes quickly for commercial reasons, such as a