Banks often prefer litigation for claims where there is little or no prospect of a successful defence, such as a simple debt claim, because they assume that arbitration does not allow summary procedures. The ICC Commission Task Force reported that counsel at financial institutions were frustrated by experiences of arbitration where they were forced to go through a full consideration of the merits of a dispute, even where there are no contested facts. Banks perceive this as a significant disadvantage versus the summary judgment procedure available, for example, in the English courts. However, arbitration can include something similar to summary judgment – either through party autonomy or as set out in arbitration rules. And, in any case, considerations of enforceability may dictate against using summary judgment in litigation or arbitration.
The principle of party autonomy in arbitration means that parties are free to specify how they want their disputes to be resolved in their arbitration agreement. So, for instance, they can choose to give the tribunal the power to grant summary judgment. Or they can provide for an award to be rendered within a specified period following an expedited procedure by reference to documents only. Expedited procedures can replicate in an arbitration many of the benefits of the summary judgment procedure.
Arbitral institutions are also taking steps to address the absence of summary judgment. The latest version of the ICC arbitration rules contain a form of expedited procedure. The SIAC launched a procedure akin to summary judgment in the 2016 edition of its arbitration rules. The HKIAC is currently consulting on introducing a similar procedure and other arbitration centres are expected to follow. This trend, combined with the parties’ freedom to tailor the arbitral process to their needs, means arbitration is increasingly capable of resolving disputes in a summary or expedited manner.
Even without specific provisions in an arbitration agreement or arbitration rules, arbitrators arguably derive a power to strike out the case, or make a summary judgment, from their general case management powers (see Travis Coal Restructured Holdings LLC v Essar Global Fund Ltd  EWHC 2510 (Comm)). But, given the lack of a significant body of cases on this issue, it is unlikely that an arbitrator would dispose of the claim summarily without an express power to do so under an arbitration agreement or institutional rules.
Care must be taken – in both litigation and arbitration – to ensure that use of a summary procedure does not threaten the enforceability of the award or judgment. For arbitration, the award must be enforceable under the New York Convention regime. This means ensuring that use of a summary procedure does not render an award susceptible to challenge for lack of procedural fairness in any jurisdiction where the award may be enforced.