Early Dismissal – A Fast and Furious Road to Justice?

With arbitration gaining more and more popularity as a dispute resolution mechanism, the focus is shifting towards finding the “3Es” – “expedited”, “efficient” and “economical” procedural frameworks.

The Singapore International Arbitration Centre (SIAC) has introduced its new draft rules (“SIAC Draft Rules, 2023”), inter alia, with the aim to fine-tune the arbitral process and ensure cost-effectiveness and efficiency. The Hong Kong International Arbitration Centre (HKIAC) has also recently come out with its new rules (“HKIAC Rules, 2024”), with the aim to improve the time and cost-efficiency of the HKIAC administered arbitrations. It may be fair to state that other arbitral institutions are also contemplating/re-looking at their rules to further streamline the same for an expedited disposal in applicable cases.

An “Early Dismissal Application” (EDA) is a well-recognised mechanism which already exists in various arbitral rules. If used judiciously, it may ensure an expedited resolution of the disputes which burden the arbitral process unnecessarily. An EDA provides the parties with the opportunity to apply to the arbitral tribunal for an expedited dismissal of a claim/defence at a nascent stage of the arbitration proceeding. The provision empowers the tribunal with the power to ensure dismissal of patently unmeritorious claims/defences prior to a full-fledged evidentiary hearing. This process seeks to ensure efficiency, of both costs and time, in an arbitration proceeding.

This article seeks to explore the international regime around EDA and the added value (if any) it can bring to the Indian arbitration landscape.

The International Centre for Settlement of Investment Disputes (ICSID) laid down the stepping stones for EDA in the international arbitration regime. The procedure first found its presence in Rule 41(5) of the ICSID Rules, 2006, and gradually in Rule 29 of the SIAC Rules, 2016 and Rule 47 of the SIAC Draft Rules, 2023. Rule 43 of the HKIAC Rules, 2018 and Article 22.1 (viii) of the London Court of International Arbitration (LCIA) Rules, 2020 also explicitly provide for EDA. There are some other rules such as Dubai International Arbitration Centre Rules, 2022, and the Mumbai Centre for International Arbitration (MCIA) Rules, 2016 which do not expressly provide for EDA but impliedly recognise the same, given the wide powers to the tribunal to determine its procedure.

A party may generally apply to the tribunal invoking the early dismissal procedure, on the grounds that a claim/defence: (i) is manifestly without legal merit; (ii) is manifestly outside the jurisdiction of the tribunal; or (iii) even if facts alleged by the other party are assumed to be true, can have no award rendered in favour of that party. As can be seen, the grounds for early dismissal are generally limited, in order to avoid any misuse of the process.

The ordinary dictionary meaning of the English word “manifest” is “palpable”, “clearly revealed to the eye, mind or judgement”, “open to view or comprehension” or “obvious” (OED, Murray). The ordinary meaning of the word requires the applicant to establish its objection clearly and obviously, with relative ease and despatch.

Tribunals have repeatedly held that the applicant ought to apply undisputed rules of law to uncontested facts. The applicant ought not resolve novel and disputed issues in a summary fashion, inevitably limiting the parties’ opportunity to be heard and the tribunal’s opportunity to reflect. The effect of a claim that is “manifestly without legal merit” would be that there is no point in proceeding with the claim, no matter what evidence is adduced.

Tribunals, while deciding on EDAs, have to meet a test of high standard. A case would not be clearly and unequivocally unmeritorious if the claimant has a tenable arguable case. The said standard cannot be met in a matter which entails a detailed evidentiary hearing on the issues which are highly technical and/or voluminous in nature. Any matter which requires detailed examination cannot be shut out by way of a misguided invocation of EDA.

The timeline envisaged under institutional rules within which a tribunal ought to pass a decision, in the form of an order or award, is generally 60 days, subject to extension being granted by the institution. In the authors’ opinion, such an extension ought to be granted sparingly lest it defeat the purpose of EDA.

The requirement that tribunals ought to decide the objections promptly confirms that the early dismissal provision is directed at clear cases and not cases which require detailed enquiry and adjudication by tribunals.

Institutional rules do not generally provide for an automatic injunction on the arbitral process on the mere filing of EDA. Given that the arbitral process is expected to continue in parallel, it may be beneficial for an applicant to (i) initiate EDA at the earliest instance during the arbitral process; and (ii) strive to conclude EDA in the shortest time practicable.

The purpose of an early dismissal procedure is to enhance, rather than impede, efficient disposal of the proceedings. EDA ought to serve the interests of the efficient administration of justice and the interests of both parties in a case.

A party’s invocation of an early dismissal provision may result in scuttling of the legitimate claims of the other party. It is important to bear in mind that the tribunal is the last forum available to a party to present its case, facts and the evidence in support of its claims. If a party seeks to deny a party its right to lead oral evidence (especially when the issues are largely factual and technical in nature), the same amounts to a serious violation of the principles of natural justice and the same cannot be approved by a tribunal.

While some of the institutional rules provide for a broad timeframe within which EDA can be made, the rules fail to identify an upper limit beyond which EDA cannot be entertained. Identification of an upper limit would restrain the parties from using EDAs as guerrilla tactics at the late stages of the proceedings.

India’s rise as a global economic power comes with a spurt in investments accompanied by an overwhelming demand from the international business community for an efficient, economical and effective dispute resolution mechanism. It is in this context that over the last few years, the Indian legal community, the policy makers and the government have joined hands in making India a leading hub for international commercial arbitration. It is public knowledge that currently the government is in the process of amending and reshaping the Arbitration and Conciliation Act, 1996 (“Arbitration Act”).

Given that a large number of arbitration cases in India are ad-hoc, it is important that a mechanism akin to EDA be introduced in the Arbitration Act. The incorporation of such a procedure would play an important role in ensuring that the arbitration proceedings are expedited, efficient and economical. A judicious use of EDA may further expedite India-seated arbitrations, in line with the pro-arbitration approach recently adopted in the country.

The Indian arbitration regime can go further with incorporation of some more effective provisions in the Arbitration Act as well as the institutional rules. This would not only boost the confidence of parties opting for institutional rules to get frivolous/bogus claims thrown out at the outset, but also incentivise the parties of a procedure that aims at cost and time efficiency.