Summary Arbitration Proceedings: A Comparison Between the English and Dutch Regimes

Abstract

In recent years the costs and duration of international commercial arbitration have generated considerable discussion. An important facet of this debate is the extent to which it is possible to obtain summary disposition of claims in arbitration. In England, where there is a valid arbitration agreement, claimants are compelled to refer claims to arbitration, notwithstanding that in the absence of the arbitration agreement they would be entitled to obtain summary judgment at court. However, neither the English Arbitration Act 1996 nor the commonly used institutional codes specifically provide comparable procedures for the summary disposition of claims in arbitration. A party seeking summary judgment in arbitration must, therefore, appeal to the tribunal's procedural discretion, and risk any award granted on a summary or expedited basis being appealed in the English court and refused recognition and enforcement under the New York Convention. This contrasts with the situation in the Netherlands, where the Dutch Code of Civil Procedure and the rules of the Netherlands Arbitration Institute explicitly address summary arbitral proceedings. This article analyses the extent to which it is possible to obtain summary or expedited remedies in arbitrations seated in England and in the Netherlands, and compares this to the position under the rules of each country's courts.