My first encounter with the world of arbitration came while competing in the VIS International Commercial Arbitration Moot, representing Middle Temple. It opened my eyes to a new world of adjudication, with its own international legal regime and legal challenges. With no academic knowledge of arbitration, I began by reading introductions to arbitration through blogs and practitioners' textbooks.

Authors repeatedly emphasised the benefits of arbitration over litigation, most notably the international enforcement of awards but equally its cost and instances of inefficiency were repeated criticisms. This made me wonder whether the world of arbitration could learn from civil procedure how to overcome these shortcomings. 

In my essay entry, I argue that the ambiguity of the law and risks of enforcement make it difficult for parties to predict if and how summary procedures can be used by arbitral tribunals in practice. Beyond this, there are essentially three problems with the law: (1) the use of summary procedures becomes arbitrary as between arbitrators and tribunals; (2) it is difficult to assure individuals and commercial actors that they will not be drawn into full arbitration proceedings for an unmeritorious or vexatious claim, which particularly discourages the banking and finance sectors from embracing arbitration; and (3) there may be negative cost implications, as it is expensive to become a party to a full arbitration over a vexatious claim, not to mention the cost of any appeals to court. 

By way of explanation, summary judgment is available in civil litigation where the claimant or defendant have no real prospect of succeeding on/defending the claim or issue, and there is no other compelling reason why the case or issue should be disposed of at trial (CPR 24.4(2)). This rule means that a party facing an unmeritorious or vexatious claim need not be dragged into a lengthy and costly litigation process. In short, it is one of many rules in the CPR which exist to ensure the efficient administration of justice. By contrast, the availability of summary procedures in English arbitration law is not certain. 

Generally, an arbitral tribunal has the power to summarily dispose of an unmeritorious or vexatious claim if (1) the arbitration agreement expressly grants the tribunal the power to use such procedures; (2) the incorporated procedural rules provide for specific summary procedures; or (3) the arbitration law of the seat so empowers the tribunal. English law currently makes it difficult for arbitral tribunals to know if they have the power to summarily dispose of a claim, if institutional procedural rules which have such procedures are not incorporated into the arbitration agreement. 

The Arbitration Act (AA) 1996 does not specifically provide for the summary disposal of unmeritorious claims. Such procedures are arguably implicitly provided for under s33(b) AA which confers a duty on tribunals to adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. However, this duty needs to be balanced against the further duty on the tribunal to act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent (s33(a) AA).

Therefore, arbitral tribunals may summarily dispose of a claim if the arbitration agreement expressly grants this power, or can be interpreted sufficiently widely. While courts have been open to permitting wide readings of arbitration agreements for this purpose, it is by no means guaranteed. 

There is also a risk that awards rendered following a summary procedure will be unenforceable under s68 AA, on grounds of serious irregularity which have caused substantial injustice to the applicant and is of a type listed therein. This list includes failure by a tribunal to comply with the duty under section 33 and failure to conduct the proceedings in accordance with the procedure agreed by the parties. Consequently, there is a risk that in the absence of a full merits hearing, an award delivered following a summary procedure is liable to be overturned. 

Therefore, I proposed amending the Arbitration Act to expressly include provisions that empower tribunals to summarily dispose of vexatious or unmeritorious claims. It would confirm that tribunals indeed have these powers and reduce risks of unenforceability, thereby removing the arbitrariness inherent in the current law and provide a safeguard against parties being drawn into long and expensive proceedings for such claims. 

I was delighted that the Law Reform Committee chose my essay as the winning entry. I am also grateful to the Bar Council Scholarship Trust for sponsoring the competition. While most of the prize money will be spent on my legal education, there are a couple of books I cannot resist.

Penny Tridimas, winner of the 2019 Bar Council Law Reform Essay Competition