Summary Disposition of Claims BCDR-AAA/SCC Joint Conference on Salient Issues in Investment Arbitration Bahrain, 18 November 2018 Anne K. Hoffmann, LL.M. Independent Arbitrator

Overview Provisions for summary disposition Scope of summary provisions Standard of review Final considerations

Rule 41(5) of the ICSID Arbitration Rules “(5) Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks legal merit.”

Further Provisions Art. 29 of the SIAC Rules (2016) Art. 26 of the SIAC IA Rules (2017) Art. 39 of the SCC Rules (2017) Art. 18 of the BCDR-AAA Rules (2017) Art. 43 of the HKIAC Rules (2018) See also ICC Practice Note of 30 October 2017

Scope of the Procedure ICSID Rule 41(5) SIAC Rule 29(1) relationship with the Secretary General’s screening power under 36(3) of the ICSID Convention interpretation of the scope by ICSID tribunals SIAC Rule 29(1) “claim or defence is manifestly without legal merit” “claim or defence is manifestly outside the jurisdiction of the Tribunal” SIAC IA Rule 26(1) see above, or “claim or defence is manifestly inadmissible”

Scope of the Procedure HKIAC Rule 43 SCC Rule 39(2) BCDR-AAA Rule 18.1 “A request for summary procedure may concern issues of jurisdiction, admissibility or the merits.” BCDR-AAA Rule 18.1 “The arbitral tribunal shall have the power […] to determine […] any legal or factual issue […].” HKIAC Rule 43 “The arbitral tribunal shall have the power […] to decide one or more points of law or fact […] on the basis that: (a) such points of law or fact are manifestly without merit; or (b) such points of law or fact are manifestly outside the arbitral tribunal’s jurisdiction; or (c) even if such points of law or fact are submitted by another party and are assumed to be correct, no award could be rendered in favour of that party.”

Standard of Review ICSID 41(5): manifest lack of legal merit SIAC 29(1): manifest lack of legal merit/jurisdiction SIAC IA 26(1): manifest lack of legal merit/jurisdiction/admissibility SCC 39(2)(i): allegation is manifestly unsustainable BCDR-AAA 18: issue is considered material to the outcome of the arbitration HKIAC 43: manifest lack of legal merit/jurisdiction

Standard of Review in ICSID Cases: Trans-Global Petroleum v. Jordan “88. The Tribunal considers […] that the ordinary meaning of the word [‘manifestly’] requires the respondent to establish its objection clearly and obviously, with relative ease and despatch. The standard is thus set high. [...] The exercise may thus be complicated; but it should never be difficult.” (emphasis added) (Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008)

Standard of Review in ICSID Cases: MOL v. Croatia “44. The Tribunal begins with the observation on the standard to be applied for determining a Rule 41(5) Objection. There is no dispute between the Parties that the standard is a high one, and that must be right. The Rule, as introduced in 2006, plainly envisages a claim that is so obviously defective from a legal point of view that it can properly be dismissed outright. By contrast, an objection to the jurisdiction or substantive defence (in terms, that a claim ‘lacks legal merit’), which requires for its disposition more elaborate argument or factual enquiry, must be made the subject of a regular preliminary objection under Rule 41(1) or a regular defence on the merits.” (emphasis added, footnotes omitted) (Decision on Respondent’s Application under ICSID Arbitration Rule 41(5), 2 December 2014)

Standard of Review in ICSID Cases: PNG v. Papua New Guinea “88. Several ICSID tribunals have found that ‘manifest’ as used in Rule 41(5), is equivalent to ‘obvious’ or ‘clearly revealed to the eye, mind or judgment.’. Under Rule 41(5), the respondent must establish its objection ‘clearly and obviously with relative ease and despatch.’ The Rule is intended to capture cases which are clearly and unequivocally unmeritorious, and as such, the standard that a respondent must meet under Rule 41(5) is very demanding and rigorous. In the opinion of the Tribunal, a case is not clearly and unequivocally unmeritorious if the Claimant has a tenable arguable case. 89. Rule 41(5) is not intended to resolve novel, difficult or disputed legal issues, but instead only to apply undisputed or genuinely indisputable rules of law to uncontested facts.” (emphasis added, footnotes omitted) (Decision on the Respondent’s Objections under Rule 41(5) of the ICSID Arbitration Rules, 28 October 2014)

Final Considerations How effective a tool are summary proceedings? commercial arbitrations Investment treaty arbitrations Do they enable tribunals to dispose of evidently unmeritorious and abusive claims or do they lead to an additional procedural layer?