Young ICCA Debate: The Use of Summary Proceedings in International Arbitration

In response to calls for increased efficiency, many of the leading arbitral institutions have introduced procedures designed to allow parties and arbitrators to dispose of non-meritorious claims and defenses at an early stage of the proceedings, in summary fashion.  In circumstances where a party has advanced an undeveloped claim or defense or worse—raised frivolous arguments as a guerilla tactic—summary disposition procedures can significantly shorten the duration of the dispute and promote a just and fair outcome.  Statistics suggest, however, that parties infrequently call upon such procedures—and when they do, arbitrators are often reluctant to grant the relief requested.  This reflects some of the concerns about summary disposition procedures, including that they may deny the parties due process, and begs the question:  are summary disposition procedures underused in international arbitration, or is the due process paranoia justified?  Our debaters will explore this question, taking into account both the potential benefits of summary disposition procedures, as well as the potential risks.

Meet the speakers

Athina Fouchard Papaefstratiou:  Athina is a lawyer based in Paris, and registered with the Bar in Paris and in Athens. She worked for 15 years in very renowned international arbitration groups of global firms, before establishing her own practice in 2022 (www.afparbitration.com), focusing on missions as arbitrator.

Athina has significant experience in Africa-related arbitration, as well as in arbitration involving States, State entities and international organisations. 

She a founding member (and former co-head) of AfricArb, an association of professionals focusing on Africa-related arbitration, a member of the ICC Commission on Arbitration and ADR and a Board member of the Arbitration Committee of ICC Greece. She is a CIArb Fellow, and a member of the Executive Committee of the CIArb European Branch.

Cameron Murphy:  Cameron is Managing Director and Head of Legal at Profile Investment.  He joined the firm in June 2022 following a 19-year career at Cleary Gottlieb Steen & Hamilton, where he was one of the firm’s senior lawyers specialised in international arbitration. Cameron worked in Cleary’s New York, Paris, and London offices acting as lead counsel for multi-national corporations in cross-border commercial disputes and both investors and States in large-scale investment treaty arbitrations across a range of industries, including mining, energy, and telecommunications. Cameron also has extensive experience with the enforcement of arbitration awards in domestic courts around the world. 

A recognised expert in the field of international arbitration including by Who’s Who Legal and Legal 500, Cameron is admitted to the New York and Paris bars. He earned a law degree from Stanford University and a dual degree in Philosophy and History with Honours and Highest Distinction from the University of North Carolina at Chapel Hill, where he was a Morehead Scholar.  Cameron also teaches a course on international arbitration in a joint master’s program in Paris between Columbia Law School, Sciences Po and La Sorbonne.

Ana Gerdau de Borja:  Ana is a senior associate at Derains & Gharavi (Paris). She has over 15 years of experience as counsel, arbitrator and secretary to arbitral tribunals in arbitrations under the ICSID, the ICC, the LCIA-MIAC, and the ICDR/AAA rules, and under the main Brazilian institutions’ rules. Her cases have included commercial transactions and joint ventures, large infrastructure projects (in construction, renewable energy, oil & gas and transportation), M&A deals, and projects in real estate, mining and shipping. 

Ana is a member of the ICC Commission on International Arbitration and ADR and a co-coordinator of Track 5 of the ICC Task Force entitled “Corruption in International Arbitration.” Ana is a co-founder of the Rising Arbitrators Initiative and a former deputy chair of CIArb’s YMG Global Steering Committee. Ana holds a Ph.D. and an LL.M. from the University of Cambridge and works in French, English, Portuguese and Spanish.

Yuri Mantilla:  Yuri is a Senior Associate at Freshfields Paris. Qualified in the US (Florida & DC) and France (Paris), he has acted as counsel for governments, State entities, and private parties in a broad range of investor-State and international commercial arbitrations arising out of projects in Latin America, Europe, Africa, Asia, and the Middle East. He is likewise experienced in State-to-State disputes, having acted in dispute settlement proceedings before the World Trade Organization and defended Chile in the International Court of Justice against Bolivia’s historical claim concerning an alleged obligation to negotiate sovereign access to the Pacific Ocean for Bolivia.     

Paul Kleist (Moderator):  Paul is an associate at Cleary Gottlieb where he has worked in the firm’s New York and London offices.  His practice focuses on international arbitration and litigation and he has a wide variety of experience before both international arbitral tribunals and domestic courts, with a particular focus on commercial arbitration (including matters before all of the major arbitral institutions).

Paul currently serves as Co-Director of Events for Young ICCA and in that capacity has lead workshops aimed at developing practical skills in arbitration as well as panel discussions on hot topics in arbitration, including arbitration as a mechanism for resolving technology disputes.  He holds a J.D. from NYU School of Law and prior to joining Cleary Gottlieb served as a law clerk on the U.S. Court of Appeals for the Third Circuit.

Report on 

Young ICCA  Paris Arbitration Week Debate: 

The Use of Summary Proceedings in International Arbitration

Left to right: 

Ana GERDAU DE BORJA MERCEREAU - Derains & Gharavi; Yuri MANTILLA - Freshfields Bruckhaus Deringer LLP; Athina FOUCHARD PAPAEFSTRATIOU - AFP Arbitration; Cameron MURPHY – Profile Investment.

The author:

Francesca MASTRAGOSTINO, candidate to the Luxembourg Bar, currently working as a Juriste at Bonn Steichen & Partners in Luxembourg. She was previously working as a Legal Analyst for Qanlex.

She holds a Master 2 in Droit des affaires européen et international from Université Savoie Mont Blanc, and a Master 1 in European Legal Studies from Università degli Studi di Torino.

Host Speakers

Shirin GURDOVA -Young ICCA

Eva CHAN - Skadden, Arps, Slate, Meagher & Flom LLP

Paul KLEIST - Cleary Gottlieb Steen & Hamilton LLP

Munia EL HARTI ALONSO - Concepcion Global PLLC

Stefanie EFSTATHIOU – DB Schenker

Guest Speakers

Athina FOUCHARD PAPAEFSTRATIOU - AFP Arbitration

Cameron MURPHY - Profile Investment

Yuri MANTILLA - Freshfields Bruckhaus Deringer LLP

Ana GERDAU DE BORJA MERCEREAU - Derains & Gharavi

On the 20th of March 2024, Young ICCA held its Paris Arbitration Week Debate at Freshfields Bruckhaus Deringer. Shirin GURDOVA delivered opening remarks introducing Young ICCA, its four pillars, namely the events, mentoring, editorial and scholarships as well as initiatives for the ICCA Congress to be held in Hong Kong in May 2024. Paul KLEIST opened the debate, noting that many arbitral institutions have recently passed summary disposition procedures in an effort to promote efficiency, however statistics suggest that such procedures are not frequently used by practitioners—and when used, arbitrators may be reluctant to grant the relief requested, often citing concerns over due process.  In this context, the debate would tackle the question whether summary disposition procedures are underused in international arbitration, or the due process paranoia surrounding them is justified.

Note:  The guest speakers’ roles in the debate were assigned, and the views expressed by them during the discussion do not necessarily reflect their personal views.

The Debate: Efficiency and Fairness, Two Sides of the Same Coin?

Arguing for the motion—in other words, that summary disposition procedures are underused—Yuri MANTILLA underscored the primary objective of international arbitration: resolving cross-border disputes efficiently and fairly. Summary procedures in this context aim to assist in dispute resolution without replacing other arbitration mechanisms such as expedited procedures or emergency arbitration. He emphasised that parties should not be compelled to litigate unmeritorious claims, as this contradicts the purpose of international arbitration. Summary procedures serve as a crucial tool for addressing these issues.

One major efficiency gain of summary procedures is their ability to motivate settlement, given the practical considerations of international arbitration users. Yuri outlined several factors contributing to this efficiency, including exposing case weaknesses to arbitrators, and forcing parties to carefully and strategically consider the merits of their claims and defences.

Furthermore, he stated that summary proceedings may help avoid unnecessary friction with commercial partners by allowing for the earlier and less costly resolution of disputes. He also highlighted a scenario where the absence of summary proceedings could result in unfair burdens on weaker parties when facing frivolous litigation initiated by a stronger party. Lastly, he pointed to research indicating that ICSID proceedings conduct on a summary basis tend to be resolved more quickly, and thus summary disposition may save both time and resources.

Arguing against the motion, Athina FOUCHARD PAPAEFSTRATIOU recalled the extensive adoption of summary disposition procedures in major arbitration institution rules since 2016, but suggested that they were not frequently used because they are not necessary. In contrast, arbitral institutions already permit expedited arbitration and this may better serve the needs of fairness and efficiency, with 30% of recent ICC cases decided under the expedited rules. 

Athina also discussed existing rules allowing for summary dismissal and bifurcation, noting variations across different arbitration frameworks. She pointed to potential procedural challenges, particularly when tribunals have time frame constraints and extensions are not granted, which may result in unfair awards and undermine the efficiency and fairness of the process. Lastly, she referenced ICSID cases where summary dismissal led to faster resolutions compared to those without such procedures, but questioned the extent to which lessons can be drawn from these cases given the relatively limited number and fact-specific nature of this issue.

Ana GERDAU DE BORJA MERCEREAU, also arguing for the motion, began by saying that “arbitration loves tailored fashion, and hates fast fashion”, alluding to parties’ preference for bespoke dispute resolution procedures. She emphasised how summary disposition procedures can address efficiency concerns in arbitration. She highlighted instances where such applications have been granted, emphasising their role as case management tools tailored to specific needs. Additionally, she noted that arbitral institutions have recognized the benefits of these proceedings, incorporating changes into their rules to support them, while ensuring procedural safeguards to uphold due process.

Ana stressed the importance of striking a balance between efficiency and due process, with many arbitral rules setting standards to provide for additional safeguards, such as high thresholds for summary disposition. She concluded her remarks by underscoring the role of arbitrators in ensuring that due process is maintained, in order to ensure the enforceability of awards.

Continuing the debate, Cameron MURPHY, arguing against the motion, outlined the significant risks associated with using summary disposition tools in arbitration, summarising them as follows:

• Increased costs and delays: summary disposition procedures may be wielded as a guerrilla tactic,  prolonging the arbitration process, making it costly and lengthy. 

• Risk of unenforceable awards: awards rendered after summary dismissal procedures may be weaker and more susceptible to challenge. Post-award litigations, including annulment actions and challenges to enforcement, may undermine the enforceability and integrity of the award.

Taking into account the risk that summary disposition could lead to unenforceable awards, Cameron posited that summary procedures are already utilized adequately and do not need further expansion. In some cases, they may even be inappropriate and should be avoided altogether.

Yuri MANTILLA then countered the argument by highlighting that summary disposition are just one of many tools that may be used for the efficient resolution of disputes, and there may be circumstances in which such procedures are more appropriate than expedited proceedings or other efficiency-oriented mechanisms.

Cameron MURPHY disagreed with this point, recalling the risks involved, while Ana GERDAU DE BORJA MERCEREAU acknowledged that despite the fact that both summary disposition and bifurcation may lead to delays, the benefit of weeding out non-meritorious claims would outweigh this. Cameron MURPHY then pointed to the risks of bifurcation (citing to trifurcation and even “quadrifurcation”), particularly when considering the possibility of further procedural complications.

Moderator Paul KLEIST brought the panellists back to the topic of efficiency and fairness, questioning the fundamental fairness of forcing parties to litigate frivolous claims for extended periods. Ana GERDAU DE BORJA MERCEREAU agreed while Cameron MURPHY suggested that counsel may be incentivized to deploy delay tactics.

Paul KLEIST asked if the panel's views would change in cases where summary disposition could resolve the entire dispute. The panellists noted that the efficacy of summary procedures depends on the complexity and size of the case, and further discussed the complexities influencing such decisions.

Voting on the Motion - Yay or Nay?

The members of the audience proceeded to vote on the motion, resulting in a 55% vote against the motion: “this house believes that summary disposition procedures are underused in international arbitration”.

Munia EL HARTI and Stefanie EFSTATHIOU closed the debate by concluding that all panellists and attendees agreed in the need for tailored approaches in international arbitration, to foster efficiency. The crux of the division relied on the degree in which the “tool-box” of procedural devices (including summary proceedings) was to be relied upon by arbitral tribunals.