Financial Services Expedited Arbitration Procedure
Towards an expedited and cost effective award in financial services disputes
Parties may wish to include specific provision for expedited procedures in an arbitration
agreement, most typically as a means of minimising their costs or expediting the procedure.
In many jurisdictions (including England and Wales), parties are permitted to expedite the
procedure, for example by agreeing to restrict or exclude disclosure, or to vary or eliminate
the right to an oral hearing or a reasoned arbitral award.
Unless otherwise stated, each clause can stand alone, and may be inserted separately from
the other clauses. Not every clause will be appropriate for every arbitration agreement.
It is possible for parties to provide for even greater expedition: for example, by specifying a
documents-only arbitration, or removing or restricting rights of cross-examination. In
general, decisions on these more restrictive procedural matters may be better left until after
a dispute arises: for example, if a case involves allegations of fraud, witness credibility would
be a core concern. These are options for parties to consider, however.
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April 2015
Financial Services Expedited Arbitration Procedure
Within the preamble/recitals to the contract:
“The arbitration provision has been drafted with a view to expediting the resolution of any
arbitration between the parties. The parties will co-operate with each other, the arbitration
institution and the Tribunal in order to achieve the timetable in the arbitration clause.”
Arbitration clause:
“x.1 [Standard arbitration clause of an applicable appointing authority (e.g. AAA-ICDR,
HKIAC,1 ICC, LCIA, PRIME, SIAC, SWISS RULES, UNCITRAL2), specifying a Tribunal of a sole
arbitrator (will usually save both costs and time) or a three arbitrator Tribunal] save that
unless the parties agree otherwise expressly in writing:
x.2 [use where sole arbitrator selected at x.1] The sole arbitrator should have experience
and/or expertise related to financial services. If the sole arbitrator is not jointly chosen and
nominated within 7 days of the date for service of the response to the request for
arbitration/arbitration notice the sole arbitrator will be appointed by the applicable
appointing authority and the parties request that the appointing authority act as quickly as
possible and preferably within 7 days given the expedited nature of this procedure.
OR
x.2 [use where Tribunal of three arbitrators selected at x.1] Each arbitrator and the chair of
the Tribunal should have experience and/or expertise related to financial services. The
claimant shall choose and nominate an arbitrator in the request for arbitration/arbitration
notice. The respondent shall choose and nominate an arbitrator in the response to the
request for arbitration/arbitration notice, which must be served in accordance with the time
limit set out in clause [x3] below. If either party does not choose and nominate an arbitrator
in accordance with these provisions, then that arbitrator will be appointed by the applicable
appointing authority and the parties request that the appointing authority act as quickly as
possible, and preferably within 7 days, given the expedited nature of this procedure. The
third arbitrator, who shall act as chair of the Tribunal, shall be chosen by the two arbitrators
appointed or confirmed by or on behalf of the parties. If the two arbitrators appointed or
confirmed by or on behalf of the parties do not choose and nominate a chair of the Tribunal
to the applicable appointing authority within 7 days of the date of appointment or
confirmation of the latter of these two arbitrators, the chair of the Tribunal shall be
appointed by the applicable appointing authority and the parties request that the appointing
authority act as quickly as possible, and preferably within 7 days, given the expedited nature
of this procedure.
1
Note that if the HKIAC arbitration rules are chosen then a provision such as the following must be
included to accommodate clause 10.1 of the HKIAC Rules, which provides for a mechanism for
parties to agree a method of paying the Tribunal:
“If any applicable arbitral rules provide that the parties shall agree upon the method for determining
fees and expenses of the Tribunal, or any other similar administrative matter, then the time period
for doing so shall be the time period for the service of the response to the request for
arbitration/arbitration notice.”
2
Note that if the UNCITRAL arbitration rules are chosen then an appointing authority must be
specified in the arbitration clause.
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April 2015
x.3
The time period for service of the response to the request for arbitration/arbitration
notice is amended to be 7 days.
x.4
When appointed the Tribunal should be available to conduct a hearing and render
the award in accordance with the timing provisions of clauses [x.5] and [x.6] below and have
availability to deal with any applications or directions promptly. Any applications, directions
or orders shall be made in writing without any hearing.
x.5
A hearing on liability, quantum and jurisdiction, if necessary, and any issues related
thereto shall be held only if requested by a party and deemed necessary by the Tribunal,
notwithstanding any provision to the contrary in any applicable rules of any arbitral
institution. In the event that a hearing is to be held the parties request that the Tribunal hold
a single hearing dealing with liability, quantum and jurisdiction, if disputed, within 4 months
of receipt of written notification to the parties of the formation of the Tribunal. The parties
request that the hearing should last a maximum of [1] day(s) (unless the Tribunal for
exceptional reasons determines otherwise).
x.6
The Tribunal may state the reasons upon which the award is based in summary form
only, which form shall be at the absolute discretion of the Tribunal.3 The parties request that
the Tribunal use its best endeavours to render the award within 4 weeks from the last day of
the hearing or, if no hearing is to be held, from the date when the last party’s pleadings have
been served or when the last addendum has been served in accordance with clause [x.11]
below.
x.7
The parties request that the Tribunal expedite the arbitral procedure and any award,
and avoid unnecessary costs or delay as much as possible, and note that this arbitration
agreement has been drafted with a view to achieving this. If any applicable arbitral rules
provide for terms of reference then any time limit for them shall be reduced to 1 week.
x.8
There shall be no discovery or disclosure [, except that the Tribunal shall have the
power to order the parties to produce such documents as are reasonably requested by
another party, or by the Tribunal, where the documents are manifestly relevant, specifically
identified and the burden of production is not excessive. Any application and orders should
be made by way of a Redfern Schedule without any hearing. The Tribunal should draw upon
Article 3 (including Article 9(2)) of the IBA Rules on the Taking of Evidence in International
Commercial Arbitration in respect of any requests to produce].
x.9
The parties’ pleadings, witness statements and expert reports (if any) shall be
concise. No single pleading should exceed 20 single-sided A4 pages using 12pt Arial font.
x.10 Subject to the exemption in clause [x.11] below, any documents, witness statements or
expert reports on which a party will seek to rely must be appended to that party’s statement
of case, statement of defence and counterclaim (if any), statement of reply/defence to the
counterclaim or reply to the defence to counterclaim, as the case may be.
x.11
Should any documents be produced by a party upon the order of the Tribunal after
the receiving party’s pleadings, witness statements or expert reports have been served, the
receiving party may, if permitted by the Tribunal, be allowed to serve an addendum to its
pleadings, witness statements or expert reports already served, dealing exclusively with the
impact of the new document(s) produced which should not exceed 10 single-sided A4 pages
using 12pt Arial font.
3
Or, delete previous sentence and replace with – “The Tribunal shall not provide reasons for its
award”.
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April 2015
x.12
Unless the Tribunal orders otherwise, the time periods for service of pleadings shall
be as follows:
x.12.1 Unless the claimant elects to have its request for arbitration/arbitration notice treated
as its statement of case, service of the statement of case within 1 week from receipt of
written notification to the parties of the formation of the Tribunal.
x.12.2 Service of statement of defence (including any jurisdiction challenge) and
counterclaim (if any) within 4 weeks of service of the statement of case; or, if the claimant
elects to have its request for arbitration/arbitration notice treated as its statement of case,
within 4 weeks of the service of the request for arbitration/arbitration notice.
x.12.3 Service of statement of reply (and defence to counterclaim, if any) within 2 weeks
from service of the statement of defence and counterclaim (if any); or, if the defendant
elects to have its response to the request for arbitration/arbitration notice treated as its
statement of defence (and counterclaim, if any), within 2 weeks from the service of the
response to the request for arbitration/arbitration notice; in either case the statement of
reply must only be responsive to the last pleading.
x.12.4 Service of statement of reply to defence to counterclaim (if any) within 2 weeks from
service of the statement of defence to counterclaim, which pleading must only be responsive
to the last pleading.
x.12.5 Parties are not entitled to serve any pleadings or evidence outside of this format
unless permitted by the Tribunal in exceptional circumstances.
x.13
Any witness evidence and expert reports on which a party seeks to rely must be
presented by way of a written statement as prescribed above. Oral witness or expert
evidence in chief may only be admitted with the agreement of the other parties or if so
ordered by the Tribunal in exceptional circumstances.
[Note: The cross references in italics assume that all clauses are included: if they are not, it will be
necessary to amend the cross-references.]
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April 2015