EFFICIENCY. WHAT ELSE?

EFFICIENCY AS THE EMERGING DEFINING VALUE OF INTERNATIONAL

ARBITRATION: BETWEEN SYSTEMS THEORIES AND PARTY AUTONOMY

Loukas Mistelis

I. INTRODUCTION AND THEORETICAL FRAMEWORK____________________________1

II. ORIGINS OF EFFICIENCY AND ITS ESTABLISHMENT AS A VALUE OF
INTERNATIONAL ARBITRATION_________________________________________________________6
1. Origins and Justification of Efficiency Mandate___________________________________8
2. Efficiency as a Value of International Arbitration______________________________11
III. ROLE OF ARBITRATORS________________________________________________________15
1. Power and Duties of Arbitrators__________________________________________________16
2. Balancing Due Process, Fairness and Efficiency- the Due Process Paranoia
18
3. Effective and Efficient Management of the Arbitration Process______________25
IV. ROLE OF ARBITRAL INSTITUTIONS___________________________________________29
1. Party Autonomy and Powers of Arbitral Institutions__________________________30
2. “Judicialization” and Efficiency of International Arbitration_________________35
V. CONCLUDING REMARKS: THE EFFICIENCY PARADIGM_______________________37

I. INTRODUCTION AND THEORETICAL FRAMEWORK

International arbitration case numbers slowly but steadily increase and

arbitration gains acceptance in jurisdictions where arbitration was previously
underutilized or not encouraged; at the same time the subject matters of
disputes referred to arbitration also expand– to include, for example, financial
disputes1, technology, media and telecommunications disputes.2 As a corollary, it

Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration; Director,
School of International Arbitration, Queen Mary University of London. I wish to acknowledge
with thanks the research support provided by Giammarco Rao.
1
In 2013 the School of International Arbitration surveyed corporate counsel around the world to
explore the views of major industry sectors towards arbitration. In addition to the well-
established sectors of construction, infrastructure and energy, financial services have also
emerged as an industry sector which has slowly embraced arbitration. See
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/pwc-international-arbitration-
study2013.pdf Corporate Choices in International Arbitration: An Industry Approach (last visited
on 18 March 2019).
2
The use of international arbitration in Technology, Media and Telecommunications Disputes has
been surveyed in 2016 by the School of International Arbitration and presented in the executive
summary at:
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/Fixing_Tech_report_online_singles.

1
is an inevitable consequence that the level and frequency of scrutiny and
criticism towards arbitration also increases. One key concern is the extent to
which arbitration is and can be characterized as an efficient process. For many
years, there was a presumption or perhaps a false impression that arbitration
was quick and inexpensive.

There is also an interesting tension between party autonomy3 – arbitration being

a creature of the parties – and the desire of various authors (supported
nowadays by arbitral institutions) to attribute to arbitration systemic qualities 4
and features of private ordering.5 The simple reality is that arbitration continues
to be the result of party autonomy (the joint intent of parties to resolve their
disputes by arbitration) and as such, it is a process designed whether by
disputing parties, arbitral institutions or arbitral tribunals to meet the parties
objectives and expectations. The tension between bespoke (or ad hoc) arbitral
procedural regulation and more predictable (“systemic”) regulation is ongoing.
Arguably, the latter seems to win as more often parties opt for institutional
arbitration which provides for a pre-designed regulatory framework for
arbitration to be conducted and organised. Most importantly, institutional
arbitration also respects and honours party autonomy, and this is confirmed by

pdf (last visited on 18 March 2019). See also Queen Mary University of London, 2018
International Arbitration Survey: The Evolution of International Arbitration, available at
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-
Survey---The-Evolution-of-International-Arbitration-(2).PDF.
3
See, e.g., Franco Ferrari (ed), Limits to Party Autonomy in International Commercial Arbitration
(Juris 2016).
4
See, e.g. Roger Cotterrell, ‘Transnational Communities and the Concept of Law’ (2008) 21 Ratio
Juris, 1, 5-6; Gunther Teubner, "Global Bukowina": Legal Pluralism in the World Society, in Global
Law Without a State, 3 (Gunther Teubner ed., 1997), at 13, 15; Gunther Teubner, ‘Global private
regimes: Neo-spontaneous law and dual constitution of autonomous sectors?’ In Public
Governance in the age of globalization (Routledge, 2017) 71-87; Stephan W. Schill, ‘International
Arbitrators as System-Builders’ (2012) 106 Proceedings of the Annual Meeting (American
Society of International Law) 295); Niklas Luhmann, Law as a Social System (2009); Joseph
Weiler, ‘The Geology of International Law-Governance, Democracy and Legitimacy’, (2004) 64 3
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 547, 549 (2004).
5
See, e.g., Stephen Ware, ‘Private Ordering and Commercial Arbitration: Lasting Lessons from
Mentschikoff’, 1 Journal of Dispute Resolution 1-18 (2019); Steven Schwarcz, ‘Private Ordering’,
97 Northwestern University Law Review 319 (2002).

2
the most important relevant regulatory sources6 and all leading arbitration
rules.7

Against this background, institutional rules relating to arbitration appear to

strive for an efficient and economic process and try to moderate the effect of
party autonomy.

While, looking back, efficiency was not featuring as a typical feature of

international arbitration, some twenty odd years ago, serious concerns were
expressed about the cost and length of proceedings. 8 Paradoxically, at the same
time, arbitration has been seen as a method of dispute resolution which saves
money and time for the users.9 However, in the last ten years, or perhaps a bit
longer, there has been a marked awareness and indeed demand for a higher level
of efficiency in the arbitral process.10
6
See Convention on the recognition and Enforcement of Foreign Arbitral Awards (New York,
1958, entered into force on 7 June 1959) (New York Convention) Article V(1)(d) which reads as
follows:

The composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place;
7
See ICC Rules of Arbitration (‘ICC Rules’) (March 2017), LCIA Arbitration Rules (‘LCIA Rules')
(October 2014), SIAC Rules of Arbitration (‘SIAC Rules’) (August 2016), HKIAC Rules, (‘HKIAC
Rules’) (November 2018), AAA-ICDR Arbitratio Rules (‘AAA-ICDR Rules’) (June, 2014).
8
See http://www.arbitration.qmul.ac.uk/media/arbitration/docs/IAstudy_2006.pdf (2006), at
pages 6, 7 and 19 (last visited on 18 March 2019) where 50% of the respondents to the survey
identified the cost associated with the arbitration as the primary concern about arbitration with
the time needed for the resolution of the dispute as the second main disadvantage. See further,
with more analysis, Loukas Mistelis, ‘International Arbitration – Corporate Attitudes and
Practices – 12 Perceptions Tested: Myths, Data and Analysis Research Report’, (2004) 15(3-4)
Am. Rev. of Int’l Arb. 525, 545-550.
9
Richard Naimark and Stephanie Keer, ‘International Private Commercial Arbitration:
Expectations and Perceptions of Attorneys and Business People’, (2002) 30 Int’l Bus. Lawyer
203; Dispute Wise Business Management, An American Arbitration Association Sponsored Study
(2003), p. 9, available at
http://fundacionsignum.org/wp-content/uploads/2016/07/aaa_mediacion-arbitraje-
resolucion-conflictos-dispute-wise_study_research_report_2011.pdf (last visited on 10 January
2019).
10
See Hermann Bietz, ‘On the State and Efficiency of International Arbitration – Could the German
“Relevance Method” be useful of not?’ (2014) 12 30 SchiedsVZ 121; Michael Dunmore, ‘Increased
Efficiency and Lower Costs in Arbitration: Sole Member Tribunals’, (2015) IV(1) Indian J. Arb. L.
27-33; Debevoise & Plimpton LLP Protocol to Promote Efficiency in International Arbitration, at
http://www.debevoise.com/~/media/files/capabilities/arbitration/protocol_promote_efficienc
y_intl_arbitration1.pdf (2010) (last visited on 18 March 2019); Diane Desierto, ‘Rawlsian
Fairness and International Arbitration, 36(4) (2015) U. Pa. J. Int’l L. 939-993; David Earnest, Raul
Gallardo, Gardar Vidir Gunnarsson and Tobiasz Kaczor, ‘Four Ways to Sharpen the Sword of
Efficiency in International Arbitration’, (2013) available at
http://www.arbitration-icca.org/media/0/13630881906410/four_ways_to_sharpen_the_sword_

3
It is unclear, and indeed debatable, whether international arbitration is innately
efficient or whether efficiency is what disputing parties seek from arbitration. It
also equally unclear what efficiency in international arbitration means. In
addition, it is not always clear as to what disputing parties consider as efficiency.
The Oxford dictionary suggests that efficiency is ‘the state or quality of being
efficient’ and identify the origin of the word in Latin and in the ‘late 16th century
(in the sense ‘the fact of being an efficient cause’): from Latin efficientia, from
efficere accomplish’.11 Relying on the historical meaning of the word, any
arbitration that results in an award would be considered an efficient arbitration.

of_efficiency_yicca_group_paper.pdf (last visited on 18 March 2019); John Fellas, ‘A Fair and

Efficient International Arbitration Process’, PLI Course Handbook, (2007) International
Arbitration, no 10796; Cristina Florescu, ‘The Arbitration Agreement and Arbitrability - Towards
Achieving Efficiency in International Arbitration’, (2015) Austrian Yearbook Int’l Arb. 51-71;
Fabricio Fortese and Lotta Hemmi. ‘Procedural Fairness and Efficiency in International
Arbitration’, (2015) 3(1) Groningen J. Int’l L. 110-124; Lucy Greenwood, ‘Does Bifurcation Really
Promote Efficiency?’, (2011) 28(2) J. Int’l Arb. 105-111; Veijo Heiskanen, ‘Key to Efficiency in
International Arbitration’, (2015) 30 ICSID Review 481-485; ICC Commission on Arbitration and
ADR, Task Force on Reducing Time and Costs in Arbitration, available at
http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Arbitration-
Commission-Report-on-Techniques-for-Controlling-Time-and-Costs-in-Arbitration/ (last visited
on 18 March 2019); JAMS International Efficiency Guidelines 2011 For the Pre-Hearing Phase of
International Arbitrations, at http://www.jamsinternational.com/international-arbitration-
efficiency-guidelines (last visited on 18 March 2019); Nana Japaridze, ‘Fair Enough? Reconciling
the Pursuit of Fairness and Justice with Preserving the Nature of International Commercial
Arbitration’, (2008) 36(4) Hofstra L. Rev. 1415-1446; Jennifer Kirby, ‘Efficiency in Arbitration:
Whose Duty Is It?’, (2015) 32(6) J. Int’l Arb. 689-696; Elisabeth Leimbacher, ‘Efficiency under the
New ICC Rules of Arbitration of 2012: first glimpse at the new practice’, (2013) 31(2) ASA
Bulletin 298-315; Michael McIlwrath, ‘Faster, Cheaper: Global Initiatives to Promote Efficiency in
International Arbitration’, (2010) 76 Arbitration 532-537; Michael Moser, ‘The ‘Pre-Hearing
Checklist’ – A Technique for Enhancing Efficiency in International Arbitral Proceedings’, (2013)
30(20 J. Int’l Arb. 155-159; Christopher Newmark, ‘Controlling Time and Costs in Arbitration’, in:
Newman and Hill, eds., The Leading Arbitrators’ Guide to International Arbitration (Juris, 2008)
81-96,; Veit Öhlberger and Jarred Pinkston, ‘The Arbitrator and the Arbitration Procedure, Iura
Novit Curia and the Non-Passive Arbitrator: A Question of Efficiency, Cultural Blinders and
Misplaced Concerns About Impartiality’, (2016) Austrian Yearbook Int’l Arb. 101-117; Wilson
Pimentel, ‘Efficiency and Equilibrium in the Allocation of Costs’, (2015) XII Revista Brasiliera de
Arbitragem 59-67; Karl Pörnbacher and Alexander Dolgorukow, ‘Reconciling Due Process and
Efficiency in International Arbitration – The Arbitrator’s Task of Achieving the One without
Sacrificing the Other’, (2013) LXI(3) Annals FLB – Belgrade Law Review 50-62; Andreas
Respondek, ‘Five Proposals to Further Increase the Efficiency of International Arbitration
Proceedings’, (2014) 31(4) J. Int’l Arb. 507-513 Jorg Risse, ‘Ten Drastic Proposals for Saving Time
and Costs in Arbitral Proceedings’, (2013) 23(3) Arb. Int’l 5; Paola Sanchez, ‘Introducing
Efficiency into the 2010 IBA Rules on Evidence: Does this Create a Back Door for Introducing
Additional Inefficiencies into the System?’, (2011) 1(1) International Commercial Arbitration
Brief 3-4; Anne-Veronique Schläpfer and Marily Paralika, ‘Striking the Right Balance: The Roles of
Arbitral Institutions, Parties and Tribunals in Achieving Efficiency in International Arbitration’,
(2015) 2(2) BCDR Int’l Arb. Rev. 329-342 (2015); Albert Jan van den Berg (ed.), Planning
Efficient Arbitration Proceedings – The Law Applicable to International Arbitration, ICCA
Congress Series no 7, (Kluwer 1996); George von Mehren and Alana Jochum, ‘Is International
Arbitration Becoming Too American?’ (2011) 2 Global Bus. L. Rev 47-58; Irene Welser, ‘Efficiency
– Today’s Challenge in Arbitration Proceedings’, (2014) Austrian Yearbook Int’l Arb. 151-166.
11
https://en.oxforddictionaries.com/definition/efficiency (last visited on 18 March 2019).

4
However, perhaps this historical definition does not work well with a modern
business-like approach that many parties expect from arbitration. It is not
merely a matter of getting an outcome but also getting an outcome in a process
which itself appears and perhaps also is efficient.

For many, if not all, arbitration users, efficiency seems to be a relative value: if
local court proceedings with an international element last for years and with the
possibility of remedies after the decision by the court of first instance, then
proceedings in typical arbitration cases (which last for twelve to eighteen
months) would be considered to be rather fast. For parties used in efficient and
fast local courts, arbitration may appear to be somehow slow. Legal fees are
comparable in litigation and arbitration proceedings, but court fees and
arbitration fees may differ substantially. At the same time the lack of an appeal
mechanism in arbitration also ensures that the outcome of arbitration is final,
and the process appears to be more efficient. Consequently, there may be no
universal concept of efficiency: parties may have different efficiency expectations
depending on their legal background, culture, expectations, and experiences.
However, there may also be a ‘transnational’ or ‘international arbitration
autonomous’ concept of efficiency.

In any event, it is arguable whether efficiency can only be linked to “quantitative”

criteria such as time and cost of arbitration proceedings. Ultimately arbitration is
typically established to ensure a fair resolution of a dispute in a procedure
guided and informed by party autonomy (a consensus between the parties to the
extent possible) and due process. In most cases tribunals would be prepared to
sacrifice efficiency in order to ensure full observance of due process, a
phenomenon recently coined as ‘due process paranoia’ 12 although tribunals
increasingly assume their role as efficient procedural managers. Ideally due
process, party autonomy and efficiency ought to be aligned in perfect harmony

12
See the 2015 Queen Mary School of International Arbitration Survey, entitled Improvement and
Innovations in International Arbitration, at
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Sur
vey.pdf, page 5 and 10 (last visited on 18 March 2019); see also Klaus Peter Berger and Ole
Jensen, ‘Due process paranoia and the procedural judgment rule: a safe harbour for procedural
management decisions by international arbitrators’, (2016) 32 Arb. Int’l 415-435.

5
ensuring also that the outcome of the case is also correct.13 One of the key
advantages of arbitration is its flexible and adaptable procedure.14

This chapter first explores the origins of the quest for efficiency in international
arbitration and its establishment as a value of international arbitration (II.)
before exploring and assessing the role of the arbitrators (III.), and arbitral
institutions (IV.) in ensuring efficiency. In the concluding remarks (V.), the
efficiency paradigm is presented as well as an assessment as to whether we have
moved to a law and economics approach in international arbitration. The law
and economics approach to international arbitration is not new15 but it is not well
established either.

II. ORIGINS OF EFFICIENCY AND ITS ESTABLISHMENT AS A

VALUE OF INTERNATIONAL ARBITRATION

Since arbitration is an alternative to adjudication by a national court in the public

sector, funded by the state via the taxpayers and the disputing parties, any
departure from national courts would imply additional costs for disputing
parties.

If one were to draw a parallel, if national litigation is the equivalent of a public

transport system (buses or trains), then arbitration would most likely be a taxi
(perhaps equivalent to institutional arbitration) or other private car (perhaps
equivalent to ad hoc arbitration) hired by the disputing parties. The public
transport is normally available for a small fare, it is generally predictable and
familiar but may or may not be suitable for a particular journey and its use may
be intimidating if a party is foreign, does not speak the language of the driver,
cannot read the signs, and is unfamiliar with local customs. While public
transport is funded by the states and taxpayers, the private car or taxi is
13
See Fortese and Hemmi, supra note 10, at p. 116.
14
See Julian Lew, Loukas Mistelis & Stefan Kröll, Comparative International Commercial
Arbitration, Kluwer 2013, paras. 1-7, 1-14 – 1-18.
15
See Orley Aschenfelter and Radha Iyengar (eds.), Economics of Commercial Arbitration and
Dispute Resolution, (Elgar 2009) (it is worth noting that some of the essays date back to 1961);
Alessandra Casella, ‘On market integration and the development of institutions: The case of
international commercial arbitration, (1996) 40 European Economic Review 155-186.

6
something the users will have to pay themselves; in exchange the parties can also
choose the actual car, dictate the route, choose a driver of their liking and
confidence and ensure that the service is what they wish for by expressing their
choices. And while the public transport is almost always available as a default,
users may positively opt not to use it because the private transport seems more
appropriate or convenient for their own purposes.

Therefore, it seems that users of international arbitration like users of private

car hire are aware that this is a bespoke and perhaps more expensive service;
they also know that the speed of the service is subject to external factors and
may or may not be predictable, although the typical expectation is that the
service would be quicker than the public one and also more comfortable and
accommodating to personal needs of the parties. And indeed, this is what parties
choose and pay for: they can always enjoy some privacy and even comfort in
using a tailor-made service of their own liking.

It seems that international arbitration may compromise on efficiency but offers

other benefits that may significant outweigh the potential risk of lack of
efficiency. In cross-border matters the comfort and convenience of not having to
submit to the jurisdiction of the courts of the other party is so significant that any
additional cost and complication may be well justified as a business risk.

As we have already seen, in recent years, the quest for efficiency has been clearly
expressed and accentuated as corporate users of arbitration wish to receive
promptly better service by the arbitration service providers (arbitral institutions
and arbitrators) and ‘value for money’.16 In this section, the origin and
justification of the efficiency mandate (1.) and the establishment of efficiency as
a value of international arbitration (2.) are explored.

1. Origins and Justification of Efficiency Mandate

It has been suggested that ‘economics and process control have been identified
as the main reasons why many companies have moved toward[s] arbitration to

16
See McIlwrath, supra note 10; and Loukas Mistelis and Crina Baltag, ‘Trends and Challenges in
International Arbitration: Two Surveys of Inhouse Counsel of Major Corporations’, (2008) 5(2)
WAMR – World Arbitration and Mediation Review 83-110.

7
resolve disputes’.17 In a nearly historical context, Mentschikoff, in 1961, was
suggesting relying on a survey that ‘the reasons commonly given for arbitration –
speed, lower expense, more expert decision, greater privacy – are appealing to
all businessmen, and yet not all utilize arbitration’. 18 Moreover, as suggested in
1985 by David,19 arbitration’s purpose was to maintain harmony between
“persons who were destined to live together […]” in cases where the rules and
procedures were too rigid.

In the same way, some more than thirty years ago, also national courts
applauded arbitration as demonstrated by the US Supreme Court in Mitsubishi v.
Soler.20 In this case, the US Supreme Court in considering the arbitrability of
antitrust claims took into consideration the characteristics of international
arbitrational and stated that “adaptability and access to expertise are hallmarks
of arbitration”.21 More interestingly, it stated that arbitration flexibility and the
expeditious results provided by it would best serve parties’ needs.22

For these reasons, in the following years, arbitration had been considered a
successful method for resolving disputes in an international context 23 and had
witnessed an exponential growth. This phenomenon was the result of different
factors. Of course, the development of international commerce played an
important role in it.24 However, a number of reasons have contributed to the
growth of international arbitration. In particular, arbitration was considered to
be cheaper, less time consuming, and more confidential than court proceedings.
More importantly, parties could establish their own dispute resolution
mechanism by designing every stage of the procedure. Furthermore, the
enforcement of the arbitral award was made easier by the New York Convention,
namely the “single most important pillar on which the edifice of international
arbitration rests”. Above all, another factor was neutrality. Parties from different
17
Orley Aschenfelterand Radha Iyengar, “Introduction”, in Orley Aschenfelter and Radha Iyengar
(eds.), Economics of Commercial Arbitration and Dispute Resolution, Elgar 2009, p. x.
18
Soia Mentschikoff, ‘Commercial Arbitration’, (1961) 61 Columbia L. Rev. 846, at p. 850.
19
René David, Arbitration in International Trade, Kluwer 1985, at p. 29..
20
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 105 S. Ct. 3346 (1985).
21
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 105 S. Ct. 3346 (1985) 633.
22
Ibid.
23
Philippe Fouchard and others, Fouchard, Gaillard, Goldman on International Commercial
Arbitration Kluwer 1999, p. 1.
24
Ibid.

8
nations could choose a neutral method of settling commercial disputes rather
than going before the respective national courts.

In line with these considerations, Rivkin defined the original concept of

arbitration as a dispute resolution method involving “two business people taking
their dispute to a wise business person in whom they both trusted, describing
their respective claims, and then asking the arbitration to provide them with the
best solution to their dispute”.25

Thus, in principle, arbitration is seen by practitioners and scholars as an efficient

method for the resolution of international commercial disputes.

It is in the last 15-20 years that some issues were raised with respect to
international arbitration. In fact, while certain aspects of arbitration have
remained the same, other ones have drastically changed. In particular, costs and
duration have been identified as the factors that might put in danger the
existence of international arbitration itself.26 Indeed, parties started complaining
about the duration of arbitration procedures resulting in a magnitude of legal
fees that made up most of the costs.27 This is true, the “longer a process takes, the
more it is likely to cost”.28 In 2006, the average duration of an arbitration was two
years while a number of arbitrations could conclude within four years. 29
Moreover, the costs involved in the process were surprisingly high. It was also
established that the lion share of the costs, between 85 and 90 percent would be
costs for legal representation (counsel fees) while about 10 to 15 percent of the
costs was representing what was paid for arbitrators, counsel and institutions. 30
As a consequence, as shown in 2008 by a Queen Mary University survey, 41 per

25
David W Rivkin, ‘Towards a New Paradigm in International Arbitration: The Town Elder Model
Revisited’ (2008) 24 Arbitration International 379.
26
See Risse, supra note 10, 453.
27
Lucy Greenwood, ‘Sketch: The Rise, Fall and Rise of International Arbitration – a View from
2030’ (2011) 77 Arbitration, Issue 4, 437.
28
Peter Morton, ‘Can a World Exist Where Expedited Arbitration Becomes the Default
Procedure?’ (2010) 26 Arbitration International,103.
29
Queen Mary University of London, 2006 International Arbitration Study: Corporate Attitudes
and Practices, supra note 8, 7.
30
Queen Mary University of London, 2008 Corporate Attitudes and Enforcement of Arbitral
Awards, at p. 5, available at
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/IAstudy_2008.pdf (last visted 18
March 2019).

9
cent of in-house counsel said they were prepared to use transnational litigation
to solve international disputes.

The arbitration community tried to address these issues. For example, the ICC
issued in 2007 the report (updated in 2012 and 2018) entitled Techniques for
Controlling Time and Costs in Arbitration.31 On the other hand, law firms made
efforts as well. For example, Debevoise & Plimpton LLP published a protocol on
the promotion of efficiency in international arbitration in 2010, 32 in which they
ensured they would attempt to streamline the arbitral process by drafting a
detailed statement of claim or through the request of fast track schedules.

Since then, the situation has changed quite significantly. For example, the Hong
Kong International Arbitration Centre (HKIAC) has introduced in its 2018 rules a
number of changes aimed at improving the efficiency of the process such as a
procedure for an early determination of points of law or fact. 33 At present,
arbitration has been confirmed as the preferred method of dispute resolution.34
However, there are still concerns relating to the efficiency of arbitration. As
shown in the 2018 Queen Mary Survey on International Arbitration,35
respondents have proposed a plethora of solutions that might be adopted to
improve efficiency of the arbitral process. Interestingly enough, they highlighted
the importance of an early case management conference. In addition, they
pointed out the need for both arbitrators and counsel to ‘get creative’ so as to
design the proceedings according to the needs of the case. In particular, it has
been suggested to tailor the procedural orders and not use the standardised
ones. Moreover, they stated that arbitrators should limit the number of rounds of
submissions that might be sometimes too lengthy and not focused on the key
disputed issues.36

31
ICC Commission on Arbitration and ADR, Task Force on Reducing Time and Costs in
Arbitration, available, supra note 10.
32
Debevoise & Plimpton LLP Protocol to Promote Efficiency in International Arbitration supra
note 10, 1-2.
33
2018 HKIAC Administered Arbitration Rules.
34
Queen Mary University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration, supra note 2, 5.
35
Ibid 25.
36
Ibid.

10
It is now undisputed that efficiency has acquired centre stage as far as disputing
parties and arbitration institutions are concerned. Arbitration institutions are
expected to safeguard and even deliver the efficiency mandate in co-operation
with the disputing parties. Reconciling expectations of disputing parties with the
desire for efficiency is not always a simple exercise.

Therefore, efforts are still needed to improve arbitration efficiency. Whether

these efforts come from arbitral institutions, the arbitration community 37 or the
disputing parties themselves, it is essential that the disputing parties participate
in the efficiency discussions and related arbitral procedure design and are not
alienated.

Before exploring how to improve the efficiency of the arbitral process, the wider
question would be to understand what efficiency means, or better, what are the
different factors falling within the concept of efficiency. In the next section, we
look at efficiency as a value in international arbitration with the purpose of
understanding what this concept entails.

2. Efficiency as a Value of International Arbitration

As a starting point, it should be noted that there is no definition of efficiency.

Arbitration is a product of party autonomy and, as a result, the efficiency of the
process itself is the result of the parties’ choices according to their own
priorities. Thus, it would not be possible to give a general definition of efficiency
in arbitration. What can be said is that efficiency is a relative concept and as such
has to be assessed by taking into account different factors. In particular, an
evaluation has to be made in accordance with the dispute or the main agreement
between the parties. It is only by taking into account the underlying dispute that
it would be possible to assess the efficiency of the arbitral process.

First of all, a factor to be considered is time. Of course, in general, the shorter the
process, the better it is. However, as suggested by Heiskanen, it is not the
duration of an arbitration per se to be taken into account.38 Indeed, the duration

37
Emmanuel Gaillard, ‘Sociology of International Arbitration’ (2015) 31 Arbitration International
1.
38
Heiskanen, supra note 10, 482.

11
of an arbitration has to be put in relation with the dispute at stake. For example,
if a 20-year oil and gas concession agreement dispute took two years to
conclude, the arbitration would be considered efficient while if the situation
were the opposite, the efficiency of the arbitration might be in question. Indeed,
considering the potential duration of an arbitral procedure in relation with the
agreement underlying the dispute might allow to understand how efficient the
arbitral process is.

Secondly, the efficiency of arbitration proceedings can be assessed by putting

into relation the value of the dispute and the cost of the arbitral proceedings. 39
This evaluation might focus also on the value of the transaction underlying the
dispute. However, in this case, the problem would be that the value of the dispute
is different from the one of the underlying agreements generally. Thus,
comparing the foreseeable costs of the arbitration with the value of the
transaction might give rise to some issues when the amount claimed in the
proceedings is considerably less than the value of the transaction between the
parties. To the contrary, the relation between the value of the claim and the cost
of the proceedings might allow to have a more realistic picture. Indeed, it allows
us to apprehend whether the process would be cost efficient by measuring the
difference between the costs to be borne and the amount to be awarded.

Furthermore, another factor to take into account is the value of the award itself. 40
The value of arbitral awards is twofold. It lies on the legal framework that allows
recognition and enforcement in all the signatory States of the New York
Convention. At the same time, arbitral awards maintain an economic value
regardless of whether the award has been enforced or not.

As to compliance and enforcement, it has to be noted that awards are typically

voluntarily complied with. As shown by the 2008 survey of the School of
International Arbitration,41 only in a very small number of occasions enforcement

39
Ibid 482-3.
40
Loukas Mistelis, ‘Award as an investment: The Value of an Arbitral Award or the cost of non-
enforcement’, (2013) 28 ICSID Review 64, 71.
41
Loukas Mistelis and Crina Baltag, ‘Recognition and Enforcement of Arbitral Awards and
Settlement in International Arbitration in Practice: Corporate Attitudes and Practices’ (2008) 19
Am Rev Intl Arb 319, 343.

12
proceedings had been initiated to ensure enforcement. Indeed, only in 11 per
cent of cases respondents of the survey needed to proceed to courts or other
enforcement agencies to enforce an award.42 And even in such cases, only a small
number of respondents reported they encountered difficulties when seeking
recognition and enforcement.43 Moreover, in the same survey, in-house lawyers
reported that “the difficulties in enforcing an award often arose because of the
circumstances of the award-debtor rather than deficiencies in the arbitral or
court proceedings”.44 As a consequence, the survey indicated that 70 per cent of
the mentioned difficulties related to the lack of assets and the inability to locate
the debtor’s assets.45 Furthermore, there might be some concerns as to the
effectiveness and the efficiency of the New York Convention. 46 This is the reason
why it has been suggested that settlement may present a better option than the
attempt to enforce through national courts.

In particular, according to the 2008 survey, counsel stated that the enforcement
issues are generally connected to the attitude of local bureaucrats and courts,
and in the 10 per cent of cases survey respondents made reference to difficulties
arising from corruption at local courts.47 However, notwithstanding such
difficulties, it has to be pointed out that 84 per cent of respondents reported they
have recovered between 76 and 100 per cent of the awarded sum. 48 This is not to
be seen as a defect of arbitration. To the opposite, it should be noted that most
awards are the basis for the enforcement of a very substantial percentage of the
sum awarded.

More importantly, the value of arbitral awards can be assessed independently of

recognition and enforcement. In fact, it is worth mentioning that alternative
options to enforcement have been developed. For example, post awards

42
Queen Mary University of London, 2008 Corporate Attitudes and Enforcement of Arbitral
Awards, supra note 30, 6.
43
Mistelis and Baltag, supra note 41, 345.
44
Ibid.
45
Queen Mary University of London, 2008 Corporate Attitudes and Enforcement of Arbitral
Awards, supra note 30, 10.
46
See Stavros Brekoulakis, ‘Enforcement of Foreign Arbitral Awards: Observations on the
Efficiency of the Current System and the Gradual Development of Alternative Means of
Enforcement’, (2013) The American Review of International Arbitration, 415.
47
Mistelis and Baltag, supra note 41, 348-9.
48
Mistelis supra note 40, 72.

13
settlement has been used as a successful means to recover a substantial part of
the amount awarded.49 In the same way, the assignment of awards seems to be an
increasing practise in order to facilitate the enforcement of an award even
though only a small a number of examples is available. 50 For example, it has been
reported that the award in CMS v. Argentina51 was assigned to a fund, Blue Ridge
Investment LLC, which ensured the enforcement by exercising diplomatic
protection.52

As the above considerations demonstrate, the efficiency in arbitration does not

relate to only one particular aspect. It involves the whole arbitral process. And
different factors should be taken into account to arrive at a possible definition of
efficiency. Moreover, efficiency is a relative concept and its content might vary
according to the perspective from which we look at it. What arbitrators could
consider efficient might not be considered so by the parties. Thus, in general, it
can be said that efficiency might concern different aspects of international
arbitration. For this reason, the efficiency of international arbitration should be
assessed by looking at the different players involved in the process. This way, it
would be possible to understand what they believe is efficient and, at the same
time, what they could do to improve the efficiency of the proceedings.

The next sections will look at the players involved in international arbitrations in
order to show how the concept of efficiency might vary through the eyes of
different observers. The paper does not specifically address the role disputing
parties may have in ensuring efficiency.

49
See Loukas Mistelis, ‘The Settlement-Enforcement Dynamic in International Arbitration’ (2008)
19 American Review of International Arbitration 377, 383–7.
50
See Gregory Lazarev, ‘Assignment of arbitral awards’, available at
http://arbitrationblog.practicallaw.com/assignment-of-arbitral-awards/ accessed on 11
December 2018.
51
CMS Gas Transmission Company v Argentine Republic, ICSID Case No ARB/01/8, Award (12 May
2005).
52
Jorge E. Vinuales and Dolores Bentolila, ‘The Use of Alternative (Non-judicial) Means to Enforce
Investment Awards’ in Laurence Boisson de Chazournes, Marcelo Kohen and Jorge E. Vinuales
(eds), Diplomatic and Judicial Means of Dispute Settlement: Assessing their Interactions (Brill
2012), also in SSRN: SSRN-id2125051, 13.

14
 III. ROLE OF ARBITRATORS

There is not doubt that arbitrators can play an essential role in assessing and
improving the efficiency of the arbitral proceedings. In particular, the area for
improvement is the management of the case. Indeed, an efficient management of
the proceedings might result in reducing their costs substantially. This is the
challenge arbitrators are facing in striving to be effective ‘managers’ of the
arbitral proceedings.53

The management of the case refers to the procedural decisions of arbitrators,

namely the ones planning, organising and structuring the conduct of the process,
and the ones rendered during the proceeding as a response to requests of the
parties.54 Of course, in rendering such decisions, arbitrators have more or less
discretion depending on the type of decision and the rules with which they have
to comply (applicable arbitration rules and laws). In addition, when a degree of
discretion can be exercised, the arbitrators have to observe and protect the due
process rights of the parties. Indeed, the protection of due process rights among
with the legitimacy of arbitration is part of the arbitrator’s role as a guardian of
the system. Therefore, it is within the limits established by the need to protect
due process rights that arbitrators have to exercise their discretion in managing
the arbitral proccedings.

In this section, we will look, first, at the power and duties of arbitrators (1.) and,
secondly, at the need to balance due process with the efficiency and fairness of
the process (2.). Furthermore, we will consider which measures the arbitrators
might take to improve the efficiency of the system (3.).

1. Power and Duties of Arbitrators

To begin with, we need to identify the extent to which arbitrators have the
power to streamline the arbitral proceedings. Of course, as mentioned,
arbitration is the result of party autonomy. It is for the parties to decide, first,
whether they want arbitral proceedings, and secondly, how they want them to be

53
Alan Redfern, ‘The Changing World of Arbitration’ in David D Caron and others’ (eds),
Practising Virtue: Inside International Arbitration (OUP 2015) 50.
54
Berger and Jelsen, supra note 12, 417.

15
structured and conducted. This is the flexibility that has always been considered
one of the essential features of international arbitration.55 However, as suggested
by Berger and Jensen, parties’ freedom to design the proceedings more often
than not results in ‘nothing more than a rough-cut overcoat’.56 In fact, when the
arbitration clause does not provide further procedural specifications or it is an
institutional clause, the procedural framework would be quite broad. In
particular, arbitral institutional rules as well as national laws allow the arbitral
tribunals to execise a broad discretion concerning the procedural management
of the proceedings.

As to arbitral institutions, for example, Article 14.4 of the LCIA Rules 57 deals with
the conduct of the proceedings by providing the general duty to act fairly and
impartially as between the parties. Moreover, it provides the duty to adopt
procedures depending on the circumstances of the case with the purpose of
avoiding delays and guarantee efficient and expeditious means for the resolution
of the dispute. And in doing so, according to Article 14.5, the Tribunal will have a
wide discretion.

In the same way, Article 22 of the ICC Rules 58 provides that the Tribunal and the
parties ‘shall make any effort to conduct the arbitration in an expeditious and
cost effective-manner’ by taking into account the complexity and value of the
dispute. Moreover, according to Article 25, the Tribunal within as short a time as
possible shall establish the facts by all appropriate means.

In the HKIAC Rules59, similar provisions can be found as to the conduct of

arbitration. In particular, Article 13.1 provides that it is for arbitrators to adopt
suitable procedures for the conduct of the proceedings in order to avoid
unnecessary delay or expense. In discharging such duties, arbitrators have to
take into accout the complexity, the amount in dispute and the use of technology
provided that the parties’ reasonable opportunity to be heard will be protected.

55
Julian DM Lew, Loukas A Mistelis and Stefan M Kröll, Comparative International Commercial
Arbitration (Kluwer 2003) 1-14–1-16.
56
Berger and Jelsen, supra note 12, 419.
57
LCIA Arbitration Rules (‘LCIA Rules') (October 2014).
58
ICC Rules.
59
HKIAC Rules, supra note 7.

16
Finally, the UNCITRAL Arbitration Rules in Article 1760 also provide that the
tribunal ‘shall conduct the proceedings so as to avoid unnecessary delay and
expense and to provide a fair and efficient process for resolving’ the dispute.

The situation is not very different if we look at national arbitration laws. For
instance, under Section 33 of the English Arbitation Act,61 the Arbitral Tribunal
shall act fairly and impartially, and adopt procedures suitable to the
circumstances of the case. Moreover, as provided by Section 34, the Tribunal has
the power to deal with all procedural and evidential matters, with the possibility
of parties to agree on any matter. As matter of the fact the English Arbitration Act
was one of the first national arbitration legislation to introduce efficiency as a
factor for the exercise of discretion by arbitral tribunals.

In the same way, French law allows arbitrators to exercise discretion in the
conduct of arbitral proceedings as well. Indeed, unless otherwise agreed by the
parties, the Tribunal shall define the procedure in accordance with Article 1509
(2) of the CPC62. Swiss law has a provision of the same token as well. In fact, the
Federal Law on Private International Law, under Article 182 (1) 63 provides that
the parties may determine the procedure either directly or by reference to rules
of arbitration. In case the parties have not determined the procedure, under
Article 182 (2), it is for the tribunal to determine the procedure, and abritrators
can do it directly or refer to a statute or to rules of arbitration.

Therefore, Arbitral Tribunals are generally allowed either by national laws or

institutions rules to exercise a significant degree of discretion in dealing with the
procedural management of the case. And it could not be otherwise, given the
flexibility of the arbitral proceedings. However, on the other side, a relevant
question remains open. Indeed, it is not clear as to what extent arbitrators can
exercise such a discretion. In the next paragraph, we will attempt to establish
whether arbitrators face any limits in the management of the case.

60
UNCITRAL Arbitration Rules 2013.
61
English Arbitration Act 1996.
62
French Civil Procedeural Code.
63
Private International Law Statute of 18 December 1987.

17
 2. Balancing Due Process, Fairness and Efficiency- the Due
Process Paranoia

Identifying the limits to which Arbitral Tribunals are subject when dealing with
the management of the case is an easy task, at least in theory.

First of all, arbitrators have always to respect expressed agreements between the
parties concerning the management of the proceedings. Secondly, they have to
respect the parties’ rights to present their case and be treated equally. In
particular, as pointed out by Berger and Jensen,64 these are the grounds for
annulment or non-enforcement that might be preventing arbitrators from
streamlining the proceedings. Further, the violation of the parties’ right to
present their case is the ground on which the so called ‘due process paranoia’
lies.65

This phenomenon was defined in the Queen Mary 2015 International Arbitration
Survey66 as the ‘reluctance by tribunals to act decisively in certain situations’ to
avoid challenges based on the violation of the parties’ right to present their case.
In particular, interviewees made reference to ‘situations where deadlines were
extended repeatedly, evidence was admitted late in the process, and disruptive
behaviour was accepted given the concern that the award would otherwise be
vulnerable to challenge.’ However, the question remains as to whether this
phenomenon is justified or, as its name suggests, it is based only on a false
perception of reality. The answer seems to be in the latter sense, or better, it
seems to be so if we consider the so called arbitration friendly jurisdictions.

Indeed, understanding if such a phenomenon is justified requires looking at how

national courts deal with challenges based on the aforementioned behaviour. As
to the requests for extension of deadlines, it can be seen that national courts
confirmed arbitral awards despite the fact that the Tribunals denied such
requests.

64
Berger and Jensen, supra note 12, 421.
65
Ibid.
66
2015 Queen Mary School of International Arbitration Survey, supra note 12, 10.

18
In Triulzi Cesare SRL v Xinyi Group, the Singapore High Court confirmed the
decision of the arbitral tribunal despite the fact that the Tribunal did not grant
the extension of a deadline.67 The underlying dispute arose between Triulzi
Cesare SRL, an Italian company manufacturing and producing washing machine
for glass sheets and Xinyi Group, a Hong Kong company selling glass products. 68
During the arbitration proceedings, the tribunal did not grant the extension of a
deadline for the submission of an expert’s witness statement since it would have
been in conflict with the procedural timetable. 69 Moreover, the initial deadline set
by the tribunal was extended by ten days even though this period of time was not
considered sufficient by the claimant.70 As a result, the award was challenged
before the Singapore High Court on the base that the tribunal violated the
claimant’s right to be heard.71 However, the Singapore High Court confirmed the
decision of the tribunal by stating that the claimant was not denied a reasonable
opportunity to file the expert witness statement and the tribunal had exercised
his case management powers reasonably and properly.72 Notably, the Court
relied on a previous case where an arbitral tribunal was described as ‘a master of
his own procedure’ with wide discretionary powers.73 Moreover, the court
pointed out that even though the exercise of case management is subject to the
rules of natural justice, which includes the right to be heard, arbitral tribunals
are subject also to other competing factors. 74 The court mentioned as an example
Article 22 (1) ICC Rules 2012 according to which the tribunal has to conduct the
arbitration in an expeditious and cost-effective manner taking into account the
complexity and value of the dispute. Thus, it stated that the tribunal has to
accord weight to the ‘practical realities of the arbitral ecosystem such as
promptness and price’.75 Then, the court went on to analyse the factual
circumstances of the case, and in light of them, confirmed the decision of the
Arbitral Tribunal.

67
Triulzi Cesare SRL v XinyiGroup (Glass) Co Ltd [2014] SGHC 220.
68
Ibid para 1.
69
Ibid para 148.
70
Ibid para 142.
71
Ibid para 17.
72
Ibid para 151.
73
Ibid para 131; Soh Beng Tee & Co Pte Ltd v Fairmount DevelopmentPte Ltd [2007] 3 SLR(R) 86,
60.
74
Ibid para 131.
75
Ibid.

19
In case n. 11 Sch 02/08 76 the Dresden Court of Appeal arrived at a similar
conclusion. After a tribunal rendered an award in Norway on 30 October 2007,
the respondent commenced an action for annulment of the award before the
Dresden Court of Appeal.77 Among other complaints, it alleged the violation of
due process on the basis that it had not received the claimant’s response to its
statement timely and that the tribunal had not extended the time limit to reply. 78
The court confirmed the decision of the tribunal. In particular, it stated that the
Tribunal simply had not believed the statement of the respondent according to
which the claimant’s e-mails and letters containing the claimant’s response were
not received by the former’s attorney.79 The tribunal’s conclusion was supported
by the fact that when the response was sent by e-mail in August 2007, the e-mail
was allegedly caught in the spam-filter. The court did not cosider the award to be
in violation of the defendant’s right to due process.

In the same way, in case 4A 490/2016, 80 the Swiss Federal Tribunal denied the
violation of the right to be be heard for the tribunal did not grant an extension
for the submission of comments on the concept of ‘simulated contracts’. In
particular, the dispute arose out of an agreement between Lybian companies for
the construction of a mixed purpose building.81 At a prepararotry meeting, the
parties agreed that the tribunal should first rule on its jurisdiction and the
applicable law.82 Following the receipt of the parties’ submissions on jurisdiction,
the tribunal asked the parties to submit their comments on the concept of
simulated contract.83 While the claimant submitted such comments timely, the
respondent did not do so. The tribunal then issued an interim award confirming
its jurisdiction over the matter, and the claimant applied to have the award set
aside by the Swiss Federal Tribunal.84 In particular, the claimant contested that
the tribunal violated its right to be heard for not having granted the extension of

76
Judgment of 6 August 2008, (2009) XXXIV YB Comm Arb 522 (OLG Dresden 2008).
77
Ibid 522.
78
Ibid.
79
Ibid 524.
80
Judgment of 6 March 2017, (2017) 35 ASA Bull 428 (Swiss Federal Tribunal 2017) English
version available at http://www.swissarbitrationdecisions.com/atf-4a-490-2016.
81
Ibid para A.a.
82
Ibid para B.a.
83
Ibid.
84
Ibid para C.

20
time.85 The Swiss Federal Tribunal did not agree with the claimant. In particular,
it stated that its request to grant an extension of time due to its counsel’s holiday
absence was not sufficient to show a violation of the right to be heard. 86
Moreover, the Tribunal pointed out that in any case the claimant could not allow
the period granted to elapse without any further action. In fact, the claimant did
not submit any comments in the period they set even though it received
respondent’s comments in a timely manner.

When it comes to the submission of new arguments or new evidence it seems

that only egregious cases would lead to the annulment of the award. 87 Indeed, the
general tendency of national courts is to confirm the decisions of arbitral
tribunals unless there has been an egregious violation of the right to be heard on
the part of the tribunals.

In case n. 25 Sch 09/08,88 the Hamm Court of Appeal confirmed the decision of
the arbitral tribunal notwithstanding the latter ignored a brief which was
submitted by the claimant three days before the oral hearing. In this case, the
dispute arose out of supply contracts the conclusion of which was provided by a
framework contract between the parties.89 Arbitration proceedings were
commenced in Moscow and the tribunal rendered four decisions in favour of the
claimant. Then the latter sought to enforce the arbitral awards in Germany
where the respondent raised certain defences undert Article V (1) of the New
York Convention.90 Among other allegations, the respondent argued that there
had been a violation of due process since it was not given the possibility to reply
to a brief submitted lately by the claimant.91 With respect to this argument, the
Hamm Court of Appeal stated that there was no violation of due process since in
the award the tribunal did not take into account the document. At the same time,

85
Ibid para 3.3.3.
86
Ibid.
87
For example, see Société MORS v Société Supermarket Systems 1995 Rev arb 887 (Paris Cour
d’appel 1991), where the Paris Court of Appeal annulled an arbitral award on the basis that the
Tribunal relied on evidence that was previously excluded.
88
Judgment of 28 November 2008, (2009) XXXIV YB Comm Arb 536 (OLG Hamm 2008).
89
Ibid 536-7.
90
Ibid 537.
91
Ibid

21
the tribunal stated that the respondent did not prove the contrary nor the the
fact that the documents contained new factual arguments.92

Even considering the submission of documents after a cut-off date, the result
does not change. In Pacific China Holdings Ltd (In Liquidation) v Grand Pacific
Holdings Ltd, the Hong Kong Court of Appeal confirmed the decision of a Tribunal
to refuse additional authorities.93 The dispute arose out of a loan agreement
concluded by the parties. After the Tribunal rendered an award in favour of the
respondent, the claimant applied to the Hong Court of First Instance to have the
award set aside on the ground that it was not able to present its case and the
procedure was not in accordance with the agreement of the parties. 94 The Court
of First Instance considered that the refusal on the part of the tribunal to receive
and take into account the additional authorities submitted belatedly prevented
the claimant from presenting its case.95 The Hong Kong Court of Appeal did not
agree with such a decision. To the contrary, it stated that the Court of First
Instance was not entitled to interfere with a case management decision falling
within the discretion of the Tribunal,96 and as a result, it set aside the order of the
Court of First Instance.

However, it should be noted that even the late submission of a statement on the
eve of a hearing might be accepted by an arbitral tribunal. The English High
Court decided so in Ispat Industries Ltd v. Western Bulk Pte Ltd97 which was a case
concerning the cancellation of a charterparty.98 During the arbitration
proceedings, the claimant produced a statement on the eve of the hearing and
the tribunal accepted it arguing that the witness could be cross-examined on the
second day of the hearing. Such a conduct was contested by the counterparty. 99
After the award was rendered the respondent filed an application under sections

92
Ibid 541.
93
Pacific China Holdings Ltd (In Liquidation) v Grand Pacific Holdings Ltd [2012] 4 HKLRD 1,
para 68 (Hong Kong Court of Appeal 2012).
94
Ibid 2.
95
Ibid para 68.
96
Ibid.
97
Ispat Industries Ltd v. Western Bulk Pte Ltd [2011] EWHC 93 (Comm.). On challenges based on
section 68 of the English Arbitration Act, see Bruce Harris, Rowan Planterose, Jonathan Tecks,
Lord Neuberger and Garth Stewart, The Arbitration Act 1996, (Wiley Blackwell 2014).
98
Ibid 2.
99
Ibid 26.

22
68 and 69 of the Arbitration Act 1996. 100 The respondent’s application was based
on the ground, amongst others, that the tribunal had breached its duty under
section 33 to act fairly and to give the respondent a reasonable opportunity of
dealing with the claimant’s case. In particular, it argued that there was no
sufficient time to prepare for cross-examination and that, given the failure on the
part of the claimant to disclose relevant documents, it was not possible to
prepare an effective cross-examination.101 The court did not agree with the
respondent since it considered the decision of the tribunal to be a case
management decision.102 In particular, it stated that the tribunal did not fail to
consider whether the counsel would have the opportunity to read and take into
account the statement produced by the claimant. 103 Moreover, on the disclosure
point, it stated that conducting the cross-examination without the relevant
documents ‘is always and necessarily the case where a party at trial cross-
examines a witness about an alleged failure to disclose relevant documents’.104

Concerning other hypothetical disruptive conduct, a request for a postponement

of a hearing immediately before its commencement is the most prevalent
scenario.105 However, even in this case, it has to be noted that only egregious
cases would lead to the annulment of the award.

In ASM Shipping Ltd of India v TTMI Ltd of England,106 the request to postpone a
hearing given the absence of one of the parties’ lead counsel was denied by the
tribunal. The arbitration concerned a disputes related to a charterparty. 107
Following the issue of the award, an application under Section 68 of the English
Arbitration Act 1996 was made by the respondent on the grounds that one of the
arbitrators should have recused himself and that the tribunal refused an
adjournment following the absence of the respondent’s counsel.108 Notably, as to
the refusal to grant an adjournment the High Court confirmed the decision of the
100
Ibid 1.
101
Ibid 26.
102
Ibid 27.
103
Ibid.
104
Ibid.
105
Berger and Jelsen, supra note 12, 427.
106
ASM Shipping Ltd of India v TTMI Ltd of England [2005] EWHC 2238 (Comm), para 38
(English High Court 2005)
107
Ibid para 2.
108
Ibid para 8.

23
tribunal and stated that ‘the test is whether the decision to refuse an
adjournment was “so far removed from what could reasonably be expected of
the arbitral process that it must be rectified.”’ 109 Moreover, the High Court
pointed out that an adjournement would have caused a delay with the following
unnecessary wastage of costs.110

In the same way, the US Southern District Court of New York in PT Reasuransi
Umum Indonesia v Evanston Ins Co111 applied a similar test to the decision of an
arbitral tribunal concerning a dispute which arose in connection with the parties’
obligations under reinsurance contracts.112 The arbitral tribunal rendered a
decision in favour of the respondent and then the claimant sought to vacate the
award on several grounds among which was the failure of the tribunal to
postpone the hearing.113 On this point the US District Court maintained that when
there is a reasonable decision not to grant a postponement national courts are
reluctant to interfere with the award. 114 Moreover, it pointed out that for nine
months the respondent had been silent whereas four days before the hearing it
made a request for a postponement. Then, the tribunal communicated with the
parties by conference call and decided not to grant the postponement. In light of
these circumstances the court considered that the refusal to grant the extension
could not fall within the concept of misconduct on the part of arbitral tribunal.

As all these cases demonstrate, the so called due process paranoia is not justified
by the approach of national courts. Indeed, our brief review of cases shows that
courts are inclined to confirm arbitral awards unless there have been egregious
violations of due process. In fact, as long as arbitrators arrive at a reasonable
decision, there might be no concern as to whether a case management decision is
in violation of due process. This consideration seems consistent with the results
of the 2018 Queen Mary University International Arbitration Survey where the
legitimacy of the due process paranoia phenomenon was contested both by

109
Ibid para 38.
110
Ibid.
111
PT Reasuransi Umum Indonesia v Evanston Ins Co, XIX YB Comm Arb 788, 790 (US District
Court, SDNY 1992).
112
Ibid 788.
113
Ibid 788-9.
114
Ibid 791.

24
counsel and arbitrators.115 In particular, the argument is that explaining the
arbitrator’s conduct by referring to the due process paranoia would be
misleading. In fact, such a phenomenon would not be justified given the
existence of arbitration-friendly jurisdictions where the courts tend to defer to
arbitrators with respect to the conduct of the arbitral proceedings.

3. Effective and Efficient Management of the Arbitration Process

Having ascertained that the due process paranoia would not and should not limit
the proactiveness of arbitrators, it is useful to establish what can be done in
practice to streamline the arbitral proceedings. In this sections, some proposals
are being considered.

To begin with, establishing a limit of pages for the parties’ submissions might be
an effective solution to save time and costs.116 Of course, such a rule should be
agreed by the parties in the terms of reference or in any other similar document
setting out procedural directions and its purpose would be to avoid the
repetition by parties of arguments more than once. In fact, even though at a first
glance some might say that this solution would jeopardise the right to be heard
and present the case, the truth is that it would allow parties to focus on good
arguments rather than put forward the hopeless ones. 117 Moreover, this seems to
be in line with the results of the 2018 Queen Mary University International
Arbitration Survey where a number of both arbitrators and counsel pointed out
that on a case-by-case basis arbitrators should limit the number of pages of
submissions and the rounds of submissions.118 On the rounds of exhanges of party
submissions some arbitration operate on the basis of three rounds
(Request/Answer, Statement of Claim amd Defence, Reply / Rejoinder) but many
have four or five or even six rounds of submissions (to accommodate document
production rounds, Skeleton Arguments pre-hearing, and post-hearing
submissions) Moreover, it should be noted that such a rule of page limit is
provided even in contexts other than international arbitration. For example, as
115
Queen Mary University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration, supra note 2, 27.
116
Risse, supra note 10, 456.
117
Ibid.
118
Queen Mary University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration, supra note 2, 26.

25
pointed out by Risse,119 the procedure before the European Court of Justice
provides for a limit of 50 pages for a party submission.120

Another solution to be taken into account is the identification of the material

issues of the case at an early stage. The most relevant issues migt be identified
gradually during the proceedings. At the preliminary meeting, a first attempt
could be made to identify the crucial issues of the case, at least in general
terms.121 Following the parties’ submissions and after having discussed this
identification with the parties, the tribunal might deliberate and determine
which are the most relevant issues of the case and which ones the tribunal would
not wish to consider,122 at least at this stage. This identification (or narrowing of
the issues) does not prevent the tribunal from assessing other issues that during
the hearing are identified as significant and the tribunals considers decisive.
However, even in such a scenario, a proper early management of the case would
still result in saving costs, avoiding delays, and overall improving the efficiency
of the arbitral proceedings.

In the same way, the use of sanctions might be considered an effective means to
promote the efficiency of the arbitral proceedings. In particular, as pointed out in
the 2018 Queen Mary University International Arbitration Survey, interviewees
complained about dilatory tactics employed by counsel that are not sanctioned
either because arbitrators do not deem appropriate to sanction parties or
because arbitrators are not in possession of the appropriate instruments. 123 In
particular, over 70 percent of survey respondents pointed out that dilatory
tactics of the parties and counsel should be sanctioned. 124 In fact, a number of
interviewees stated that lengthy submissions and frivolous motions should not
be accepted and arbitrators should be in the position to address disruptive
behaviour. To this end, a solution might be represented by the allocation of costs

119
Risse, supra note 10, 456.
120
Practice Directions to Parties before the General Court, L 68/23, 7 Mar. 2010, 5.
121
Michael E. Schneider, ‘Lean Arbitration: Cost Control and Efficiency Through Progressive
Identification of Issues and Separate Pricing of Arbitration Services’ (1994) 10 Arbitration
International, 132.
122
Risse, supra note 10, 461.
123
Queen Mary University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration, supra note 2, 27.
124
Ibid 35.

26
based not only on the ‘the costs follow the event’ rule but also on the efficiency of
the parties.125 In the 2017 ICC Arbitral Rules, such mechanism is provided. 126
Specifically, article 38 section 5 provides arbitrators with full discretion as to
how allocate the cost based on the efficient or inefficient case management. This
mechanism would allow tribunals to take into account attorneys’ fees,
understand whether they are proportionate to the arbitration, and whether
dilatory tactics or unreasonable arguments have been used by the parties.

Moreover, improving the use of technology in international arbitration might be

the key solution to guarantee a high standard of efficiency in the arbitral
proceedings. This is in line with the results of the 2018 Queen Mary University
International Arbitration Survey. Indeed, interviewees stated that the efficiency
of the arbitral proceedings might be increased by the use of information
technology (IT).127

In particular, the most used IT forms are hearing room technologies,

videoconferencing, cloud-based storage whereas artificial intellinge and virtual
hearing rooms are used less. However, with respect to all the mentioned forms of
IT, even though in different percentages, users stated that they should be used
more often in international arbitration to make the arbitral proceedings more
efficient. In fact, they pointed out that the most relevant advantage of using
technology is the possibility to conduct hearings and meetings through means of
communicaton that do not require the phisical presence of parties and
arbitrators.128 Thus, they would result in substantial savings in terms of money
and time that would be spent otherwise on reaching a given location for a
meeting between parties and arbitrators. Use of technology and, most
importantly, the dematerialisation of written submissions and exhibits can also
contribute to cost saving and more efficient conduct of proceedings: instead of
dozens of boxes, parties may be required to submit a tablet or to upload
everything on a cloud system. This is happening increasingly and arbitration

125
Risse, supra note 10, 462.
126
Article 38 (5) ICC Rules, supra note 7.
127
Queen Mary University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration, supra note 2, 26-7.
128
Ibid 32.

27
tribunals request paperless submissions up to the hearing and occasionally even
at the hearing.

Notwithstanding the potential advantages of the use of technology, it has to be

noted that a number of counsel questioned the effectivenes of conducting cross-
examinations of witnesses or hearings through videoconference. The reason
behind this opposition might be represented by the fear that the reactions of the
witness would not be clearly understandable.129 However, it has to be noted that
the development of technology provides a high resolution picture that allows the
participants to understand the facial expressions as well as the voice tone and
the body language of the witness.130 Thus, the immediacy of videoconference
could not be considered an issue anymore. The only objection that would remain
against this kind of technology is represented by the ineffable component of in-
person contact thanks to which participants might have a better opportunity to
assess the veradicity of the witnesses involved.131

The launch of the Prague Rules132 in December 2018 aims also at bringing about a
higher degree of efficiency by adopting a more inquisitorial approach.
Specifically, Article 2 refers to proactive tribunals, Article 7 to the concept of jura
novit curiae133 and Articles 11 and 12 to adverse inferences a tribunal may draw
when a party refuses to co-operate and allocation of costs in accordance with
efficiency and co-operation of disputing parties. Whether a inquisitorial
approach is the solution to the lack of efficiency is ultimately a question of legal
culture. It may well be argued that arbitration is culturally and by design
consensual and hence more moderate adversarial processes allowing for party
autonomy ought to be preferred over inquisitorial models. However, it is

129
Sophie Nappert and Paul Cohen, ‘The Impact of Technology on Arbitral Decision Making- The
Practicioner’s Perspective’ in Christian Aschauer, and Piers Maud, Arbitration in the Digital Age:
The Brave New World of Arbitration, (Cambridge University Press 2017) 133.
130
Ibid.
131
Ibid 134.
132
Rules on the Efficient Conduct of Proceedings in International Arbitration, available at
https://praguerules.com/upload/medialibrary/9dc/9dc31ba7799e26473d92961d926948c9.pd
f.
133
On the topic see Loukas Mistelis and Metka Potocnik, ‘Iura Novit Arbiter- the English
approach’, in Franco Ferrari and Giuditta Cordero Moss (eds.), Jura Novit Curia in International
Arbitration, Juris 2018, pp 135-167 and also other chapters included in the book.

28
undisputed that the objectives of the Rules are positive and practice will confirm
whether this soft law codification achieves its objectives.

In this section, we have put forward certain proposals to improve the efficiency
of arbitral proceedings. Leaving aside the specific solutions proposed, this
section demonstrates that there is room for improvement of efficiency in
international arbitration and a proactive approach by arbitrators migh result in
saving time and costs without jeoparidising due process. Moreover, the use of
technology in the proceedings might be of great importance in the future either
to streamline the proceedings and render more appealing international
arbitration to solve disputes of particular sectors.

What remains to consider is the role of arbitral institutions play with respect to
the arbitral proceedings efficiency. In the next section we will do so by
addressing the relation between party autonomy and powers of arbitral
institution and the ‘judicialization’ of the arbital proceeding.

IV. ROLE OF ARBITRAL INSTITUTIONS

Nowadays, it appears that most arbitration agreements provide for institutional

arbitration. The main consequence of this choice is the administration by the
institution of several tasks during the arbitration. Moreover, it follows that the
institutional arbitral rules will be applicable to the arbitral proceedings. Thus,
arbitral institutions are in in the best position to improve the efficiency of
arbitral proceedings. To this end, most institutions have introduced expedited
procedures and other provisions with the purpose of streamlining the arbitral
proceedings. For example, the ICC has introduced an expedited procedure134
following similar introductions by ICDR,135 SIAC,136 the HKIAC,137 and the 2012
Swiss Chambers’ Arbitration Institution.138

134
Article 30 ICC Rules and Appendinx VI, supra note 7.
135
Article 6 ICDR International Arbitration Rules as amended (2014), supra note 7.
136
Article 5 Singapore International Arbitration Centre Rules of Arbitration, supra note 7.
137
Article 42 HKIAC Rules, supra note 7.
138
Article 42 Swiss Chambers’ Arbitration Institution Rules (‘Swiss Rules’) (June 2012).

29
While the introduction of expedited procedures and other provisions aims at
improving the efficiency of the arbitral process, the question would remain
whether the institutional rules would prevail over the procedural agreements of
the parties. This would lead to what Berger has called in a recent article ‘the
party autonomy paradox’,139 namely the phenomenon according to which the
parties by agreeing to institutional arbitration would agree to limit their
autonomy as well. Moreover, it would be worth exploring whether the level
formality and sophistication due to the introduction of these procedures would
have a negative impact on the efficiency of the arbitral proceedings.

In the next sections we will discuss party autonomy and powers of arbitral
insitutions (1.) and the so called ‘judicialization’ in relation to the efficiency of
arbitration (2.).

1. Party Autonomy and Powers of Arbitral Institutions

Arbitration institutions can be considered ancillary entities participating in

arbitrations conducted under their administration.140 Indeed, in institutional
arbitrations, certain measures taken by the institutions assume a decisional
character. Of course, arbitrators remain the subjects to whom the principal
decision-maker role is attributed.141 However, institutional decisions might
assume a material character since they might influence the outcome of the merits
directly or indirectly.142 In particular, the capacity of institutions to impact the
proceedings they administer is clear if one looks at the finality of certain
decisions concerning discrete aspects of the dispute. An example might be the
decisions in respect of costs.143 Moreover, the materiality of certain decisions
might come from the consequences they have on the framework applicable to
the arbitral proceedings. This is the case of decisions concerning the seat of
arbitration and the set of arbitral rules. In other cases, the materiality of
decisions derive from the fact that they impact the composition of the tribunal
either directly – when they nominate arbitrators – or indirectly – when they
139
Klaus P Berger, ‘Institutional arbitration: harmony, disharmony and the ‘Party Autonomy
Paradox’’ (2018) 34 Arbitration International 473, 486.
140
Rémy Gerbay, The Functions of Arbitral Institutions (Kluwer Law International 2016) 196.
141
Ibid 188.
142
Ibid 189.
143
Ibid.

30
decide the number of arbitrators.144 In particular, in order to assess the relation
between party autonomy and the powers of arbitral institutions, it would be
worth taking into account the latter, namely the decisions concerning the
number of arbitrators.

As mentioned above, different institutions have introduced expedited

procedures. In fact, in 2017, by introducing the Expedited Procedure Rules, the
ICC have joined other institutions such as the ICDR, the HKIAC and the SIAC. All
these institutions give preference to the appointment of a sole arbitrator
provided that the amount of the dispute is within a certain treshold. The
rationale behind this approach is that the involvement of only one arbitrator
would likely result in substantial savings in terms of time and costs. However,
the provision concerning the appointment of a sole arbitrator varies according to
the institution.

Article 41.2 (b) of the HKIAC Rules provide that the arbitral institution invites
the parties to agree on a sole arbitrator. In case of failure by the parties to agree
on the appointment of a sole arbitrator, the parties can agree on a different
number of arbitrators. Thus, an agreement providing for three arbitrators will
prevail over the provision of the institution. To the contrary, the approach
followed by the ICC Rules and the SIAC Rules is different in that it allows arbitral
institutions to override parties’ agreements providing for a different number of
arbitrators. In fact, the SIAC Rule 5.2 (b) provides that ‘the case shall be referred
to a sole arbitrator, unless the President determines otherwise;[…]. In the same
way, according to Article 2 of the Appendix VI of the ICC Rules ‘the Court may,
notwithstanding any contrary provision of the arbitration agreement, appoint a
sole arbitrator.’ This approach raises a question as to whether arbitral
institutions can ignore the parties’ agreement in light of the discretion their rules
grant them.145

As it has already been pointed out above, efficiency in arbitration is a relative

concept depending on the eyes of the observer. Thus, if the parties have provided
in the arbitration agreement that the tribunal will consist of three members, then
144
Ibid 192.
145
Berger, supra note 139, 486.

31
priority should be given to the parties’ intention. In fact, the parties may have
considered that a dispute between them would be better decided by three
arbitrators rather than a sole arbitrator. Indeed, their perception of efficiency
might differ from the one of the arbitral institution. However, it should be noted
that national courts dealing with this issue have arrived at different conclusions.

On the one hand, in Noble Resources International Pte Ltd v Shanghai Good Credit
International Trade Co Ltd146 the Shangai No. 1 Intermediate People’s Court gave
priority to party autonomy.147 In particular, the dispute arose out of a contract for
the sale and purchase of iron ore and the arbitration agreement contained in the
contract provided for a tribunal consisting of three arbitrators.148 When
commencing the arbitration, the claimant requested the proceedings to be
conducted under the expedited procedure under the SIAC Rules. Following the
claimant’s request, the SIAC appointed a sole arbitrator for the case. The
respondent contested the application of the expedited procedure as well as the
appointment of a sole arbitrator. However, the respondent did not participate to
the proceedings and the tribunal rendered an award against it in its absence. 149 At
the recognition and enforcement stage in Mainland China, the respondent
challenged the award under the New York Convention. In particular, it contested
the composition of the tribunal arguing that it was not in accordance with the
parties’ agreement as provided by the arbitration clause. The Shanghai Court
stated that the interpretation of Article 5.2 (b) of the SIAC Rules should not give
the President of SIAC absolute discretion in dealing with the composition of the
arbitral tribunal. To the contrary, full consideration should be given to the
partie’s agreement in light of party autonomy. In fact, the latter should prevail
over the powers of arbitral institution. Thus, the appointment of a sole arbitrator

146
Noble Resources International Pte Ltd v Shanghai Good Credit International Trade Co Ltd 11
August 2017, (2016) Hu 01 Xie Wai Ren No 1.
147
See Sacchit Joshi and Brijesh Chhatrola ‘Expedited Procedure Vis-à-Vis Party Autonomy,
Enforceable?’ (Kluwer Arbitration Blog, May 2018) available at
http://arbitrationblog.kluwerarbitration.com/2018/05/12/expedited-procedure-vis-vis-party-
autonomy-enforceable/ accessed 22 January 2019.
148
James Kwan, ‘PRC Court Refuses to Enforce SIAC Arbitral Award made by one Arbitrator Under
Expedited Arbitration Procedures when Arbitration Agreement Provided for Three Arbitrators’
(Hogan Lovells Publ, August 2017) 2 <https:// www.hoganlovells.com/en/publications/prc-
court-refuses-to-enforce-siac-arbitral-award-arising-out-of-the-expedited-procedure-where-
arbitration-agreement-provided-for-three-arbitrators> accessed 17 January 2019.
149
Ibid 3.

32
by the President of the SIAC was considered to be in violation of the arbitration
agreement.150 Accordingly, the Shangai Court did not recognize and enforce the
award.

On the other hand, in AQZ v ARA,151 under similar factual circumstances, the
Singapore High Court stated that given the choice of the parties to submit a
dispute under the SIAC Rules providing for the expedited procedure, there was
no violation of the arbitration agreement. In this case the dispute concerned the
alleged existence of a contract for the sale and purchase of Indonesian non-
coking coal.152 The day after commencing the arbitration proceedings, the
claimant requested the application of the expedited procedure under the SIAC
Rules.153 Such an application was objected by the respondent that contested both
the existence of the arbitration agreement and the application of the expedited
procedure. The President of SIAC granted the request and appointed a sole
arbitrator while the respondent reserved all its right to challenge.154 Following
the rendering of the award in favour of the claimant, the respondent applied to
set aside the award. Its application was based on the ground, amongst others,
that the composition of the arbitral tribunal and/or the procedure was in breach
of the parties’ agreement.155 The Singapore High Court concluded that in light of
the parties’ express choice of the SIAC Rules containing the expedited procedure,
the decision of overriding the agreement providing for a three-member tribunal
was consistent with party autonomy.156 Moreover, it pointed out that the SIAC
Rules do not exclude from their scope agreements concluded before the
expedited procedure came into force. For these reasons, the expedited procedure
provisions might override parties’ agreement entered even before their
introduction. In particular, the court adopted a commercial sensible approach
according to which the fact that the parties opted for a three-member tribunal in
150
Ibid 4.
151
AQZ v ARA [2015] SGHC 49. For a discussion on this case, see G Born and J Lim, ‘AQZ v ARA:
Singapore High Court Upholds Award Made under SIAC Expedited Procedure’ (Kluwer
Arbitration Blog, March 2015) <http://arbitrationblog.kluwerarbitration.com/2015/03/09/aqz-
v-ara-singapore-high- court-upholds-award-made-under-siac-expedited-procedure/> accessed
22 January 2019.
152
Ibid 3.
153
Ibid 4.
154
Ibid 5.
155
Ibid 61.
156
Ibid 131.

33
their agreement was considered as just one of the elements to take into
account.157 The other factors to consider were the complexity of the dispute, the
quantum claimed, and when the agreement was concluded.158 Moreover, the
Singapore high court stated that a ‘judiciosuly’ exercise of discretion by the
President could not constitute a sufficient ground for challenge of the award.

These two decisions are indicative of the tension existing between party
autonomy and the powers of arbitrators and arbitral institutions. The approach
followed by the Singapore High Court might be justified by the need to ensure
that arbitral institutions can exercise their administrative decisions without the
risk that eventually the award is going to be challenged and refused recognition
and enforcement. This is why, generally, national courts tend to grant arbitral
institutions a broad discretion in exercising their function. However, it has to be
noted that the decision involving the composition of the tribunal concerns the
element to which international arbitration owes its success, namely party
autonomy. Leaving the possibility to an entity other than the parties to decide
with a broad range of discretion the composition of the tribunal means limiting
party autonomy. Moreover, especially when there seems to be no impasse,159 it is
not clear why arbitral institutions should be granted a prerogative that has
always belonged to the parties. This is why, it might be preferable a solution that
would take into consideration the parties’ view on the composition of the
tribunals. For example, the approach adopted by the HKIAC might be preferable.
The case would be referred to a sole arbitrator unless otherwise provided by the
arbitration agreement. As a result, the parties would be given the possibility of
assessing the efficiency of the arbitral proceedings. Moreover, it would allow a
dialogue between the parties and the institution and in case of disagreement, the
intention of the parties in the arbitration agreement would prevail.

157
Ibid 132.
158
Berger, see supra note 139, 489.
159
Ibid 492.

34
 2. “Judicialization” and Efficiency of International Arbitration

In the 2013 Queen Mary University survey concerning corporate choices of

various industries in international arbitration,160 a number of complaints were
expressed as to the increasing ‘judicialization’ of arbitral proceedings. In
particular, these complaints referred to the increased formality of proceedings
and the similarities with litigation in terms of costs and delays.

It is undeniable that international arbitration has been changing over the years
and it will keep changing. In particular, it has been submitted that one of the
aspects that arbitration would have in common with litigation before the
domestic courts would be the increased sophistication in terms of procedures. 161
As a result, arbitrations would be characterised by an increasing use of strict and
clearly defined procedural norms.162 However, the introduction of clear
procedural rules have positive effects on international arbitration. Of course, it
would depend on the rules. However, this paper has shown that the introduction
of procedural rules either by arbitrators during the proceedings or in general by
institutions might lead to improvement of the efficiency of arbitrations. Thus, a
more sophisticated procedure would not lead necessarily to delays and
increasing costs. In the same way that a very strict and inflexible procedural
framework may amount to dissatisfaction of the parties and several applications
before, during and after the arbitration.

A selective judicialization might streamline the arbitral proceedings instead of

being detrimental to their efficiency.163 For example, we have discussed above the
identification at an earlier stage of the material issues of the case.
Notwithstanding the fact that it requires more experience and sophistification in
terms of procedure on the side of the disputing parties and arbitral tribunals,
this approach would result in reducing costs and time. Indeed, the hearing would
focus only on the issues considered relevant by the tribunal and the parties.

160
Queen Mary University International Arbitration Survey, 2013 Corporate Choices in
International Arbitration: Industry, supra note 1, 5.
161
Ibid.
162
Rémy Gerbay, ‘Is the End Nigh Again? An Empirical Assessment of the ‘Judicialization’ of the
International Arbtiration’ 25 American Review of International Arbitration 223, 228.
163
Leon Trakman and Hugh Montgomery, ‘The “Judicialization” of International Commercial
Arbitration: Pitfall or Virtue?’ (2017) 30 Leiden Journal of International Law 405, 408.

35
Therefore, the result would be a more streamlined procedure focusing only on
the most crucial issues despite the alleged more sophistification.

Moreover, some argue that the expansion of arbitral institution rules in terms of
length and detail might be considered as an indicator of the ‘judicialization’
phenomenon.164

There is no doubt that arbitral insitutions are expanding their rules. However,
even assuming that their expansion is leading to a more sophisticated procedure,
it should be noted that most rules are aimed at improving efficiency in
international arbitration. For example, Appendix IV of the 2017 ICC Rules
provide techniques that can be used to control time and costs by the arbitral
tribunal. At the same time, according to Article 22 (1) ‘the arbitral tribunal and
the parties shall make every effort to conduct the arbitration in an expeditious
and cost-effective manner, having regard to the complexity and value of the
dispute.’ Despite its general character, this provision would allow arbitrators and
parties to tailor the proceedings in the most efficient way. Moreover, even
considering the expedited procedure rules, the result does not change. Indeed,
there is no doubt that their purpose is to streamline the arbitral proceedings. For
instance, one might criticise Article 2 of the Appendix VI of the ICC Rules since it
allows the arbitral institution to override the parties’ agreement. However, even
in this case, such a provision would foster the efficiency of the proceedings in
terms of time and costs.

V. CONCLUDING REMARKS: THE EFFICIENCY PARADIGM

Assessing efficiency in international arbitration is not an easy task. Indeed, it is a

relative concept the content of which varies depending on the different parties,
actors and factors involved in the arbitral process. In particular, we have seen
how the assessment of various factors may lead to different concepts of
efficiency. For example, one approach might be to put in relation the duration of
164
V.V. Veeder, 'Strategic Management in Commencing an Arbitration', in Albert Jan van den Berg
(ed), Arbitration Advocacy in Changing Times, ICCA Congress Series, Volume 15 (Kluwer Law
International 2011) 27.

36
arbitration and the matter disputed. At the same time, focusing on the relation
between value of the dispute and the costs of the arbitral proceedings might be
an effective approach as well. Moreover, the value of the award itself might be
taken into consideration as well. As we have shown, the value of arbitral awards
might be assessed independently of recognition and enforcement in light of the
high percentage of voluntary compliance and the increasing practice of
alternatives to traditional enforcement, e.g. by assignment of awards or contract
renegotiation on the basis of awards. We have also indicated that efficiency is a
rather recent value of the arbitration as it appears to have taken prominence
only in the last twenty years. This is why we have attributed the adjective
“emerging” to the word value. Regulation of efficiency may be bespoke and “from
within”: disputing parties set their objectives and expectations and design the
conduct of “their” arbitration accordingly. Alternatively, regulation of efficiency
may be “from outside”: arbitral institutions or other formulating agencies design
an arbitral process to which the parties opt in and the procedure of which they
may partially modify to the extent opt out of the rules is permitted. In the “from
outside” model we attribute to arbitration systemic qualities.

As section II demonstrated, the efficiency of the arbitral process can only be

assessed by taking into account different factors. Further, such factors may vary
depending on the parties and actors involved in arbitration. In fact, what
arbitrators consider efficient might not correspond with parties' idea of
efficiency. For this reason, in section III, we have taken into account the role of
arbitrators in assessing the efficiency of the process.

National laws or institution generally give arbitral tribunal rules a very

significant degree of discretion in dealing with the procedural management of
the case. Therefore, arbitrators are in an excellent position to improve the
efficiency of the proceedings. In particular, we have explored the so-called due
process paranoia phenomenon to answer the question as to whether it would be
justified for tribunals to adopt a more rigorous approach in setting procedural
directions. This question has to be answered in the affirmative, especially
considering that most jurisdictions that can be considered arbitration-friendly
would allow arbitrators to deal with the case management without interfering

37
with it. Further, after having discussed the due process paranoia phenomenon,
we have put forward some techniques arbitrators might follow to streamline the
arbitral proceedings.We focused on the limitation of pages for the parties'
submissions, the identification of the material issues of the case at an early stage,
the use of sanctions to avoid dilatory tactics, the use of technology in
international arbitration, and a more proactive role in case management which
however would not amount to the tribunal acting in an inquisitorial fashion.
These represent a limited number of proposals of course. However, they might
have beneficial effects on the arbitral proceedings in terms of efficiency. It seems
that the a case management which involves the parties is consensual in nature
and creates a positive cooperative atmosphere in the arbitration.

After having considered the role of arbitrators, in Section IV we have focused on

the role of the arbitral institutions. Given the increasing use of institutional
arbitrations, institutions have the possibility of (and arguable the means to)
addressing the efficiency of arbitral proceedings. This is the reason why most
arbitral institutions have introduced expedited procedures. However, it is in
respect with the latter procedures that certain issues might arise. In particular,
some expedited procedures provisions allow the institution to override the
parties' agreement. Concerning this issue, national courts have arrived at
different conclusions. In this regard, it suggested here that a solution favouring
parties' agreement should be preferred.

International arbitration relies on party autonomy and approaches which are

consensual and cooperative. Consequently, parties' joint intention should prevail
unless the impasse of the arbitral proceedings would require the institution to
intervene. At the same time, the introduction of new, clear, and strict rules by
institutions should be favoured. Despite certain complaints as to the increasing
judicialization of arbitral proceedings, this chapter has shown that the
introduction of new procedural rules in most cases is aimed at improving the
efficiency of arbitration.

It is essential for international arbitration to address and meet parties’

procedural expectations and needs / objectives. Arbitration is a process owned

38
by the parties. However, arbitrators and institutions steer the process and have a
role in ensuring that the process is not frustrated. To go back to the transport
metaphor used earlier: while the parties choose the mode of transport – taxi of
private care hire – companies running taxis and car hire services (arbitration
institutions) and indeed drivers of such vehicles (arbitrators) have a duty to
ensure that the journey is safe for everyone involved. In that sense efficiency
(speed and cost saving) is almost never a standalone value: it is combined and
co-existing with rule compliance and fairness values. The vehicle companies
(arbitral institutions) and drivers (arbitrators) have to ensure rules compliance
(due process) and a safe journey (operating in accordance with the law and rules
and existing procedural rules). Where there is no such tension then party
autonomy and efficiency can work together. And indeed in such a framework of
efficiency, compliance can take a central role.

As arbitration grows, it acquires more frequently than before systemic qualities

and efficiency is part and parcel of it. Parties may design their own efficiency
paradigm by exercising their party autonomy and agreeing to a process or their
liking. This will typically imply opting for ad hoc arbitration or a “relative
efficiency” within a choice of institutional arbitral rules. However, when the
parties cannot reach an agreement, the safeguard of efficiency is in the hands of
arbitral institutions and arbitral tribunals.

39