This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Is there scope for the wider application of fast-track arbitrations in the resolution of international commercial disputes? Serbest, Fatih Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 31. Jan. 2023 This electronic theses or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Title: Is there scope for the wider application of fast-track arbitrations in the resolution of international commercial disputes? A uthor: Faith Serbest The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENSE AGREEMENT This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. http://creativecommons.org/licenses/by-nc-nd/3.0/ You are free to: Share: to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. IS THERE SCOPE FOR THE WIDER APPLICATION OF FAST-TRACK ARBITRATIONS IN THE RESOLUTION OF INTERNATIONAL COMMERCIAL DISPUTES? Thesis submitted to the Dickson Poon School of Law, King's College London, for the degree of Doctor of Philosophy in Law Research by Fatih Serbest 27 June 2013 ABSTRACT Arbitration has long been the preferred method of resolving commercial disputes as, at its best, it is both cheaper and quicker than litigation. But by the 1980s many international commercial arbitration cases were proving so slow and expensive that its advantages were being questioned. At this time several approaches were tried to make arbitration faster and cheaper. ‘Fast- track arbitration’ was one of these new approaches. In the last 25 years fast- track arbitration has become “institutionalized”, as an increasing number of institutions have enacted specific sets of expedited rules. Despite this trend, there is still uncertainty over whether fast-track procedures can become a viable alternative to conventional international arbitration. With more than 25 years of practical application of FTA to look at, it is time to ask the question which forms the title of this thesis: Is there a scope for the wider application of fast-track arbitrations in the resolution of international commercial disputes? In order to find an answer, this thesis looks at the development of regular arbitration and why it changed from a swift and economic method of solving disputes into the cumbersome and unpopular method of the 1980s. We will then consider the various attempts that were made to improve the situation, culminating in the development of international fast-track commercial arbitration (IFTCA) that we see today. Having examined the defining features of IFTCA, the thesis will be in a position to weigh the evidence on whether there is a scope for the wider application of fast-track procedures. 2 ACKNOWLEDGEMENTS I would like to take this opportunity to thank a number of people who have provided their unreserved support during the course of my PhD study. This thesis would not have been completed if there were not the guidance and encouragement of my primary supervisor, Professor Phillip Capper. He offered a huge amount of time and knowledge from which I have really benefited greatly. My gratitude for his supervision is beyond words. I would also like to thank Mrs Louise Barrington my original supervisor in the early stage of my work, who inspired me profoundly with regard to the research topic. I further wish to express my gratitude to Professor Eva Lomnicka for her guidance, support and encouragement. Many thanks are also due to my two examiners, Professor Julian DM Lew and Professor John Murray, who gave constructive and valuable comments during the viva voce. My emotional gratitude goes to my beloved wife, Ayse Serbest. Throughout all these years she has always been by my side, not just physically, but also spiritually. She is the only person who understands what I have been through and shares everything with me. I am really proud of her. I would also like to thank “Anneme, Babama ve Kardeşime”: my family for their love and continuous support. Special thanks go to Mr Peter A. Reynolds for proofreading the draft of my thesis. Thanks are also due to the staff, particularly Dr Cian Murphy, Mrs Lee Annette and Lindsey McBrayne at the Dickson Poon Law School, King’s College London for their kind assistance. Without such support I could not have concentrated one hundred percent on finishing this thesis. 3 TABLE OF CONTENTS ABSTRACT 2 ACKNOWLEDGEMENTS 3 TABLE OF CONTENTS 4 ABBREVIATIONS 6 INTRODUCTION 23 1 SPEED AND ECONOMY DURING THE DEVELOPMENT OF INTERNATIONAL COMMERCIAL ARBITRATION 29 1.1 SPEED AND ECONOMY AS A TRADITIONAL FEATURE 29 1.2 SPEED AND ECONOMY AS AN AXIOM 33 1.3 SPEED AND ECONOMY ARE INTERNATIONALLY CODIFIED 34 1.3.1 ENFORCEMENT OF ARBITRATION AGREEMENTS 40 1.3.2 ENFORCEMENT OF ARBITRAL AWARDS 44 1.4 HARMONISATION OF ICA 48 1.4.1 PARTY AUTONOMY 51 1.4.2 LIMITED COURT INTERVENTION 52 1.4.3 THE GROWTH OF INSTITUTIONS 52 1.4.4 HAS HARMONIZATION GONE TOO FAR? 55 1.5 CONCLUDING REMARKS 56 2 CONCERNS FOR EXCESSIVE COST AND DELAY IN ICA 57 2.1 EXCESSIVE LENGTH OF ARBITRATION 60 2.2 EXCESSIVE COST OF ARBITRATION 62 2.3 THE REASONS FOR EXCESSIVE COST AND DELAY IN ICA 70 2.3.1 PROVIDING FOR UNKNOWN CIRCUMSTANCES 71 2.3.2 DELAYING TACTICS 72 2.3.3 DIFFERENCES IN CULTURAL AND LEGAL BACKGROUNDS 75 2.3.4 AMERICANIZATION OF INTERNATIONAL COMMERCIAL ARBITRATION 79 2.3.5 SPECIALISTS ARBITRATION LAWYERS COULD NOT REDUCE EXCESSIVE COST AND DELAY IN ICA 80 2.3.6 REPRESENTATION BY INEXPERIENCED LAWYERS 83 2.3.7 E-‐DOCUMENT PRODUCTION 84 2.4 SLOWNESS AND EXPENSE MAY BE ACCEPTABLE TO PARTIES IN SOME TYPE OF INTERNATIONAL COMMERCIAL DISPUTES 85 2.5 WHAT MAKES ICA SLOW AND EXPENSIVE? 87 2.6 CONCLUDING REMARKS 90 3 AVOIDING COST AND DELAY 94 3.1 PARTY AUTONOMY ENABLES SPEED AND ECONOMY 94 3.2 ARBITRATORS ARE UNIQUELY PLACED TO CHANGE THE PACE OF AN ARBITRATION 97 3.3 STATUTORY PROVISIONS FOR TIME AND COST CONTROL 100 3.4 INSTITUTIONAL ADAPTATION TO SPEED AND ECONOMY 102 3.5 GUIDELINES ON COUNSEL CONDUCT 110 3.6 CONCLUDING REMARKS 113 4 FAST-‐TRACK ARBITRATION AS A PARADIGM 114 4 4.1 DEFINITION OF FAST-‐TRACK ARBITRATION 114 4.2 THE DEVELOPMENT OF INSTITUTIONAL FTA RULES 116 4.2.1 EARLY SUGGESTIONS FOR IMPROVING THE SPEED OF ARBITRATION 116 4.2.2 THE MODERN CONCEPT OF FTA 119 4.3 DUE PROCESS AND FAST-‐TRACK PROCEDURES 124 4.3.1 IMPARTIALITY AND INDEPENDENCE OF ARBITRATORS 126 4.3.2 RIGHT TO BE HEARD 128 4.3.3 EQUAL TREATMENT 131 4.4 ESTABLISHING A FAST-‐TRACK ARBITRATION 133 4.4.1 PRE-‐DISPUTE FTA CLAUSES AND FAST-‐TRACK METHODS 134 4.4.2 GENERAL DRAFTING CONSIDERATIONS FOR FTA CLAUSES 150 4.4.3 FTA SUBMISSION AGREEMENT (POST DISPUTE, PRE-‐TRIBUNAL) 159 4.4.4 SUPPLEMENTARY (POST-‐TRIBUNAL) AGREEMENT 163 4.4.5 CHOICE BETWEEN AD-‐HOC AND INSTITUTIONAL FTA 165 4.4.6 INSTITUTIONAL FTA PROCEDURES -‐ VARIETY OF APPROACHES 168 4.4.7 THE SEAT OF FAST-‐TRACK ARBITRATION 180 4.5 PROCEDURAL ELEMENTS OF FTA 192 4.5.1 COMMENCING FAST-‐TRACK ARBITRATION 192 4.5.2 CONSTITUTION OF THE ARBITRAL TRIBUNAL 200 4.5.3 ORGANISING THE FAST-‐TRACK PROCEEDINGS 217 4.5.4 WRITTEN SUBMISSIONS 225 4.5.5 GATHERING OF EVIDENCE 236 4.5.6 PRE-‐HEARING CONFERENCE 249 4.5.7 CONDUCTING THE HEARING 250 4.5.8 POST-‐HEARING MATTERS 260 4.6 CONCLUDING REMARKS 263 5 IS THERE SCOPE FOR THE WIDER APPLICATION OF FTA IN INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION? 266 5.1 THE CURRENT LEVEL OF USE OF FTA 266 5.2 RISKS ASSOCIATED WITH FTA WHEN COMPARED WITH RA 279 5.2.1 FEAR OF COMPROMISING DUE PROCESS 280 5.2.2 THE IMPACT OF MANDATORY PROCEDURAL REQUIREMENTS ON FTA 287 5.2.3 INTERNATIONAL ENFORCEABILITY OF FTA AWARDS UNDER THE NYC 292 5.3 DEVELOPING WIDER SCOPE FOR FTA – PROCEDURAL ISSUES 318 5.3.1 DRAFTING CLEAR CLAUSES 318 5.3.2 INCREASING THE NUMBER OF COMPETENT AND AVAILABLE FTA PARTICIPANTS 324 5.3.1 REDUCING THE TIME AND COST OF PRODUCING THE AWARD 336 5.3.2 CASES RESISTANT TO THE APPLICATION OF FTA 339 5.3.3 DISPUTE IDEALLY SUITED TO FTA 341 5.4 CONCLUDING REMARKS 342 5.5 RECOMMENDATIONS TO INCREASE SCOPE OF FTA 346 6 CONCLUSION 352 6.1 CHAPTER CONCLUSIONS 352 6.2 ANALYTICAL CONCLUSION 357 APPENDIXES 359 BIBLIOGRAPHY 361 5 ABBREVIATIONS Institutions, Organisations and Rules AAA American Arbitration Association AAA Rules AAA Commercial Arbitration Rules of 2009 AAA/ICDR Rules AAA/ICDR International Arbitration Rules of 2009 ACICA Australian Centre for International Commercial Arbitration ACICA Rules ACICA Arbitration Rules of 2011 ACICA FTA Rules ACICA Expedited Arbitration Rules of 2011 ABA American Bar Association AIA Italian Arbitration Association ASA Association Suisse de l’Arbitrage (Swiss Arbitration Association) ASEAN Association of Southeast Asian Nations BCC Basel Chamber of Commerce BCC Rules Basel Chamber of Commerce Arbitration Rules of 1995 CAM Camera Arbitrale Milano (Chamber of Arbitration of Milan) CAM Rules CAM Arbitration Rules of 2010 CAMARA The Court of Arbitration of Madrid Official Chamber of Commerce and Industry of Madrid CAMARA Rules CAMARA Arbitration Rules of 2008 CAMCA Commercial Arbitration and Mediation Centre for the Americas CAS Court of Arbitration for Sport CAS-Code Court of Arbitration for Sport Code CAS Rules Court of Arbitration for Sport Rules CCA College of Commercial Arbitrators 6 CCIG Chamber of Commerce and Industry of Geneva CCIG Rules Chamber of Commerce and Industry of Geneva Arbitration Rules (1992) CCPIT China Council for the Promotion of International Trade CEDR Centre for Effective Dispute Resolution CEDR Rules CEDR Rules for the Facilitation of Settlement in International Arbitration (2009) CEPANI Belgian Centre for Arbitration and Mediation CEPANI Rules Arbitration Rules of the Belgian Centre for Arbitration and Mediation CIArb Chartered Institute of Arbitrators CIDRA Chicago International Dispute Resolution Association CIDRA Rules CIDRA Arbitration Rules of 2005 CIETAC China International Economic and Trade Arbitration Commission CIETAC Rules CIETAC Arbitration Rules of 2012 CIMAR Construction Industry Model Arbitration Rules CMI Comité Maritime International CPR Institute for Center for Public Resources Institute for Dispute Resolution CPR Rules Global Rules for Accelerated Commercial Arbitration of 2009 CRCICA Cairo Regional Centre For International Commercial Arbitration CRT Claims Resolution Tribunal for Dormant Accounts in Switzerland CTF Coffee Trade Federation DAC Departmental Advisory Committee on Arbitration Law 7 DIS Deutsche Institution für Schiedsgerichtsbarkeit (German Institute of Arbitration) DIS Rules DIS Arbitration Rules (1998) DIS SREP DIS Supplementary Rules for Expedited Proceedings (2008) EC European Community ECA European Court of Arbitration ECA Rules ECA Pre‐Arbitral Referee Rules of 1997 ECAFE United Nations Economic Commission for Asia and the Far East ECOSOC United Nations Economic and Social Council EEC European Economic Community EU European Union FAA Federal Arbitration Act of United States of America (1926) FALCA Fast and Low Cost Arbitration (LMAA) FCC Finland Chamber of Commerce FCC Rules FCC Arbitration Rules of 2004 FCC FTA Rules FCC Expedited Arbitration Rules of 2004 Fed.R. Civ. Proc. Federal Rules of Civil Procedure of United States FIDIC International Federation of Consulting Engineers FOSFA Federation of Oils, Seeds and Fats Association FTA Fast-track Arbitration FTAC Foreign Trade Arbitration Commission GAFTA Grain and Feed Trade Association GATT General Agreement on Tariffs and Trade HKIAC Hong Kong International Arbitration Centre HKIAC Rules HKIAC Arbitration Rules of 2008 IACAC Inter-American Commercial Arbitration Commission IBA International Bar Association 8
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