One of the most common complaints about litigation and arbitration proceedings is the length of time it can take to resolve a dispute and get to a final judgment or award. Prolonged proceedings almost inevitably result in increased costs, the draining of a company’s management resources and distraction from the business.
However, in the energy and commodities sector, there are a variety of expedited or fast-track procedures available to enable and promote faster dispute resolution.
Some of these procedures have been available to the industry – for certain, specific types and sizes of dispute – for many years. Others are more recent developments. For example, the SIAC Rules 2016, which came into effect on 1 August 2016, introduced a new expedited procedure (see our previous alert on this here) and the ICC followed suit with its expedited procedure provisions on 1 March 2017 (for a more detailed review, see our recent alert here). Last year also saw the English High Court commence trial of a Shorter Trials Scheme (the STS) aimed at streamlining procedural timetables1.
This alert seeks to:
- identify and compare the key features of the main expedited disputes processes available to participants in the energy and commodities sector – namely those under the STS and the SIAC, ICC, LMAA, GAFTA and FOSFA arbitration rules and procedures2; and
- highlight some of the overarching themes relevant to those expedited procedures.
Certain expedited procedures can be used even in the face of opposition from the counterparty
Given the importance of party autonomy and consent in dispute resolution, it might be expected that a party’s express consent would be needed to use an expedited procedure, whether evidenced within the dispute resolution clause or arbitration agreement itself, or by way of an opt in after a particular dispute has arisen. While this is certainly a requirement under some of the rules (e.g., the LMAA3 Fast and Low Cost Arbitration (FALCA) Rules) for certain procedures (e.g., the English High Court STS and the SIAC Rules 2016), one party to the dispute can make a unilateral application which, if successful, will mean the dispute is submitted to an expedited procedure even if the other side objects.