Expedited and documents-only procedures

A shorter path, set by rule

Most rulebooks carry a second, shorter procedure inside them. It is not a concession a party negotiates once a dispute is filed: it is a track the rules switch a case onto, either because the sum at stake falls under a stated figure or because the parties agreed to it. The UNCITRAL, ICDR, DIAC, arbitrateAD and FINRA rules build that branch the same way, with one arbitrator, a hearing that is optional rather than assumed, steps taken out of the full procedure, and, in four of the five, a short clock on the award.^1,3,4,5,6

What pulls a case onto the short track

Entry is written as a figure plus a basis for measuring it, and the basis varies as much as the figure does. The ICDR looks at the largest single disclosed claim or counterclaim, arbitrateAD at the aggregate of all claims and counterclaims, and DIAC at the total of the sums claimed and counterclaimed, so the same dispute can fall inside one threshold and outside another.^3,4,5

DIAC adds qualifications the figure on its own does not show. Its Board of Directors may replace the threshold amount; the parties can agree otherwise in writing, which keeps a case under the figure off the track; written agreement and exceptional urgency, as determined by the Arbitration Court on a party’s application, are its other two doors in; and all three gateways close with the same condition, that expedited proceedings take place only if considered appropriate by the Arbitration Court on the relevant circumstances (article 32.1).⁴

The figure can move after filing, and the two rulebooks that deal with that go opposite ways. Under ICDR Article E-5, a claim amended above US$500,000 after initial filing “will continue to be administered pursuant to these Expedited Procedures unless the parties agree otherwise, or the Administrator or the arbitrator determines otherwise”. Under FINRA Rule 12800(h), a pleading that raises the amount in dispute above US$50,000 takes the case off the track, so that “the regular provisions of the Code will apply”, although an arbitrator already appointed stays on the panel. At arbitrateAD, parties who want expedited proceedings above the article 36(1) cap must opt in explicitly.^3,5,6

Consent, not value: the UNCITRAL appendix

UNCITRAL took the other route entirely. The Expedited Arbitration Rules came into effect on 19 September 2021, adopted by the Commission at its fifty-fourth session, as General Assembly resolution 76/108 of 9 December 2021 records. They sit as an appendix to the UNCITRAL Arbitration Rules, whose new article 1, paragraph 5 reads: “The Expedited Arbitration Rules in the appendix shall apply to the arbitration where the parties so agree.” Article 1 of the Expedited Rules then settles such a dispute under the Arbitration Rules “as modified by these Expedited Rules”. Across all sixteen articles there is no monetary threshold at all: the amount in dispute never decides entry, consent does.^1,2

The compressed timetable

Once a case is on the track, the timetable is a set of fixed short periods rather than something the tribunal builds from scratch. UNCITRAL front-loads the pleadings: the statement of claim goes with the notice of arbitration (article 4(2)), the respondent responds within 15 days of receiving the notice (article 5(1)) and serves its defence within 15 days of the tribunal’s constitution (article 5(2)), and the tribunal consults the parties on procedure “promptly after and within 15 days of its constitution” (article 9).¹

• UNCITRAL: six months from the constitution of the tribunal, extendable in exceptional circumstances to a total of no more than nine, with any further extension needing every party’s express agreement (article 16(1) to (3)).
• DIAC: three months from the transmission of the file to the tribunal by the Centre, unless the Arbitration Court extends it on exceptional grounds (article 32.5).
• arbitrateAD: four months from the submission of the case file, with an extension by the Case Management Office, on a reasoned request by the tribunal, capped at a further two months (article 36(2)).
• ICDR: a procedural order within 14 days of appointment (E-7), all submissions within 60 days of that order in a written-submissions case (E-8), and the award no later than 30 days from the close of the hearing or the time set for final written submissions (E-10).^1,3,4,5

One arbitrator, by default

The default tribunal on a short track is one person. UNCITRAL puts it in a sentence: “Unless otherwise agreed by the parties, there shall be one arbitrator” (article 7), appointed jointly and, failing agreement 15 days after a proposal has been received, by the appointing authority on a party’s request (article 8). The ICDR appoints by list, sending each party an identical list of five names and, if they cannot agree, letting each strike two, rank the remainder and return the list within 10 days without exchanging lists (E-6). DIAC times the step, seeking to appoint a sole arbitrator within 5 days of the Arbitration Court’s decision once the advance on costs is paid (article 32.3). arbitrateAD also sends an expedited case to a sole arbitrator (article 36(2)).^1,3,4,5

In the FINRA customer code panel size is itself banded by value, so putting a customer case on the short track and giving it a sole arbitrator are one decision rather than two: the US$50,000 band that triggers simplified arbitration is also the band in which a single arbitrator hears the claim (Rule 12401).⁷

Deciding on the papers

Dispensing with the hearing saves the most, and the rulebooks reach it by different mechanisms. The ICDR sets a second, lower figure for it: where no party’s claim or counterclaim exceeds US$100,000 exclusive of interest, attorneys’ fees and other arbitration costs, “the dispute shall be resolved by written submissions only unless the arbitrator determines that an oral hearing is necessary” (Article 1(4)). FINRA inverts the usual default, so that the papers are the norm and the hearing is what a customer has to ask for: “No hearing will be held in arbitrations administered under this rule unless the customer requests a hearing” (Rule 12800(c)(1)). Where none is requested, Regulatory Notice 24-16 states, the arbitrator renders an award on the pleadings and other materials the parties submit.^3,6,8,9

The other two leave the call to the tribunal. UNCITRAL lets it, after inviting the parties to express their views and in the absence of a request to hold hearings, decide that hearings shall not be held (article 11), and has witness statements, including those of expert witnesses, presented in writing and signed unless the tribunal directs otherwise (article 15(2)). arbitrateAD lets the tribunal, when it deems it appropriate and in consultation with the parties, decide the dispute solely on documentary evidence (article 36(2)). DIAC does not put that choice in its expedited article at all: under article 32.4 the tribunal decides the procedure to be adopted and may limit the scope of any evidence to be submitted, given the three-month deadline it is working to, while whether there is a hearing is left to the general provision. If either party requests a hearing for the presentation of evidence by witnesses or for oral argument, a hearing takes place and the tribunal decides only its format (article 26.1); only where neither party requests one and the tribunal determines a hearing is not necessary is the arbitration conducted by reference to documents and other materials alone (article 26.6).^1,4,5

• ICDR: any oral hearing is held within 60 days of the procedural order, generally without a transcript, and “shall not exceed one day unless the arbitrator determines otherwise” (E-9).
• FINRA: a customer who asks for a hearing picks either the regular Customer Code provisions on prehearings and hearings, Option One, or an Option Two special proceeding that Regulatory Notice 24-16 calls “an abbreviated hearing” (Rule 12800(c)(3)).^3,6,8

What speed costs

The rules are explicit about what comes out. Footnote 1 to the UNCITRAL Expedited Rules names the Arbitration Rules provisions that do not apply in an expedited arbitration: article 3(4)(a) and (b), article 6(2), article 7, article 8(1), the first sentence of article 20(1), article 21(1), article 21(3), article 22, and the second sentence of article 27(2). arbitrateAD disapplies its own articles 11, 12 and 24, and has the tribunal state its reasons “in summary form” (article 36(2)). FINRA ties document production to the hearing the customer picks: the Document Production Lists described in Rule 12506 apply to arbitrations in which the customer requests an Option One hearing (Rule 12800(g)(1)(A)), and in paper cases and Option Two special proceedings they do not apply unless the customer requests that they apply to all parties when initiating the arbitration under Rule 12302 or, if the customer is a respondent, no later than the answer due date under Rule 12303, with the arbitrator keeping the discretion to use relevant portions where the customer makes no timely request (Rule 12800(g)(1)(B)). The paper route is priced at an honorarium of US$350 for each arbitration decided on the pleadings (Rule 12800(i)).^1,5,6,8,9

A way off the short track

Each of these rulebooks pairs the short track with a valve, and that is where the trade-off against a full hearing is actually managed. UNCITRAL article 2 lets the parties agree at any time that the Expedited Rules no longer apply, and lets the tribunal so determine on a party’s request in exceptional circumstances, stating its reasons, with the same tribunal continuing under the Arbitration Rules. At the ICDR, an objection submitted before the arbitrator is appointed may be determined initially by the Administrator, subject to the power of the arbitrator to make a final determination, and the arbitrator takes into account the amount in dispute and any other relevant circumstances (E-4). DIAC has the tribunal seek the Arbitration Court’s approval to continue on a non-expedited basis, again with the same tribunal carrying on (article 32.6). At arbitrateAD the Court can move a case either way, and may disapply the expedited procedures “only in exceptional circumstances, where required by due process and fairness” (article 36(3) and (4)).^1,3,4,5

The expedited track buys a shorter path by taking steps out, and each rulebook names both what comes out and the way back to the full procedure.

Which edition a case runs under

The expedited chapter does not always reach as far back as the rest of the rulebook. The DIAC Rules were approved on 25 February 2022 and came into effect on 21 March 2022, and under article 2.4 article 32 applies only to agreements to arbitrate made after that date, unless the parties agree to it under article 32.1(b), whereas the Rules generally apply to arbitrations commencing after that date regardless of when the agreement was made (article 2.3). The arbitrateAD Rules came into force on 1 February 2024, and where the parties had agreed to the older ADCCAC Rules the emergency and expedited articles, 35 and 36, do not apply unless expressly agreed.^4,5

Why a short track is still administration

A short track is not a lighter version of administration, it is the same administration compressed into less time. The work still has to be done and shown: which rule put the case on the expedited track, on which figure and which basis of measurement, who the sole arbitrator is and when the appointment was made, whether a hearing was requested or dispensed with, and when the award fell due. That makes the expedited chapter a fair test of administering a case on your own rulebook: the steps are the ones in how an institution runs a case step by step, with the room for improvisation taken out, and what the shorter path is worth is visible in caseloads and turnaround.^1,3,4,5