The Reflections Of The Application Of The Expedited Arbitration Procedure

The expedited arbitration procedure is designed to provide for more efficient,economical and quality resolution of commercial disputes.It is an effective response to the need of parties to international commercial disputes to resolve their disputes in the shortest possible time and at the lowest possible cost,given the increasing trend towards the “litigationization” of commercial arbitration and the increasingly onerous costs of arbitration for the parties.There are four chapters in this paper.The first chapter is the introduction of the basic practice and practical dilemma of the expedited arbitration procedure.On the one hand,expedited arbitration procedure is a tool to speed up and simplify the arbitration procedure.It can solve disputes in a cost-effective and time-efficient way,thus effectively correcting the “litigationization” of international commercial arbitration.On the other hand,the legislation and practice of international dispute resolution market are intensely competitive,and the expedited arbitration procedure can keep the advanced position in international dispute resolution.As a tool of arbitration efficiency,the main characteristics of expedited arbitration procedure are the compulsory initiation of procedure,the strictness of arbitration time limit,the arbitrariness of arbitrators and the simplification of hearing and documents.But such “unique” procedural design meets the question of the parties and judicial organs in reality.On the one hand,the parties concerned obstruct the procedural progress through autonomy of will after entering the expedited arbitration proceedings;On the other hand,the expedited arbitration award may be revoked by the parties concerned or refused to be recognized and enforced by the judicial authorities due to its simplification.Chapter 2 and Chapter3 analyze the above practical problems.The second chapter analyzes the compatibility between the design of rules and the autonomy of will of both parties in the expedited arbitration procedure.The application of expedited arbitration leads to the limitation of the parties’ autonomy in arbitration,which deprives them of the right to choose the arbitration rules and the right to form the arbitral tribunal under the general circumstances.As a result,some parties and judicial supervisory authorities have concluded that the Expedited Arbitration Procedure has lost its foundation of arbitration and should not be recognized and enforced.Take the selection of arbitral tribunal as an example.The most notable feature of international arbitration is that there is no permanent tribunal.Instead,it provides“customized” opportunities for the selection and appointment of arbitrators for each dispute.However,the expansion of the administrative power of the arbitration institution under this proceeding requires the requirement of today’s arbitration practice.The parties’ autonomy of arbitration is insufficient,unable or inappropriate so that arbitration institutions must conduct proper supervision and management.Unlimited emphasis on will autonomy cannot ensure arbitration efficiency.Therefore,the expansion of the administrative power of the institution under the expedited arbitration procedure is a correction to the failure of autonomy.Only by respecting the authority of the rules and the efficiency of the case,can the autonomy of arbitration be further developed.Chapter Three is about the strictness of the time limit and the simplification of the hearing and documents in the expedited arbitration procedure and the balance of the basic requirements of due process in international commercial arbitration.The New York Convention imposes strict requirements on “due process” for arbitration,and an award failing to safeguard both parties’ right to be heard will be denied recognition and enforced.In the application of an expedited arbitration procedure,the losing party often seeks to set aside an award on the ground that the procedure limits the right to defend itself.But it is necessary to consider objectively whether there is a loss of substantial interests caused by failure to plead,which cannot be judged by the length of the procedure and the length of the document.The streamlined provisions of the expedited arbitration procedure streamline in time and cost and can serve as a safe haven for arbitrators to exercise their procedural discretion.Thus,the arbitral tribunal plays a balance role in efficiency and fairness,and thus avoids the excessive pursuit of due process.To sum up,although there are certain flaws in the procedural design of the expedited arbitration by the arbitration institutions,the advantages and advancements of the expedited arbitration as a major innovative tool of arbitration cannot be questioned,and the inherent contradictions of the said procedure can be reconciled through the optimization and improvement thereof.Firstly,the arbitration institutions shall optimize the design of their internal rules.First of all,the circumstances of the case shall be considered comprehensively,and the withdrawal application of the party concerned shall be allowed if it is really necessary to do so.Secondly,transparency and trust shall be established through the declaration system of case management meetings so as to reduce the exclusion of all parties to the arbitration and promote the arbitral tribunal to fully exercise its discretion.Finally,arbitrators’ initiative shall be enhanced;Second,the parties to the arbitration shall undertake the obligation to select rules in the arbitration agreement and respect the administrative power of the arbitration institution;finally,the courts of sovereign countries shall take into full account the special nature of the expedited arbitration procedure in determining whether the arbitral award rendered by the arbitration institution can be determined,adjudicating expedited arbitral award by adhering to the principles of prompt remedy,minimum court intervention and benefiting business.