No More Excuses: Toward a Workable System of Dispositive Motions in International Arbitration

Abstract

This article focuses on the potential uses of dispositive motions in international arbitration. Although dispositive motions have been used sporadically in arbitration in recent years, the prevailing practice remains that arbitral claims are typically adjudicated through full documentary disclosure, the submission of witness statements, and an evidentiary hearing with testimony by fact and expert witnesses. For claims that could have been resolved on pretrial dispositive motions had they proceeded in court rather than in arbitration, this practice undermines the alleged advantage of efficiency and speed that is a selling point of arbitration. The article advocates for a workable system of dispositive motions that fits into the existing framework of international arbitration practice and institutions. It addresses some of the most commonly raised objections to the practice of dispositive motions in international arbitration, which range from the necessity of increased fact discovery to problems of enforceability. It then explains why these objections do not pose a major stumbling block. The article concludes with a discussion of possible rule changes and agreement clauses that can provide for dispositive motions.