In the Daily Business Review's "Quick, Fast and in a Hurry: Summary Disposition in Arbitrations," Shook Partner Humberto Ocariz explains that parties to arbitration can and should seek summary disposition of issues to help limit the costs associated with alternative dispute resolution.
"Arbitrations are supposed to offer a faster, more cost-effective, and arguably preferable alternative to litigation, but many reputable arbitral organizations have been reluctant to encourage summary disposition of claims, defenses or issues," Ocariz writes. "This is mostly because of a pesky little thing known as due process. The concern has been that a summary disposition could be set aside as having violated a party’s due process right to present its case."
Ocariz explains that many arbitral organizations in the United States and internationally have rules governing the summary disposition of issues; for example, under the International Chamber of Commerce's Article 22, tribunals have the power to determine "manifestly unmeritorious claims or defenses" on an expedited basis, allowing presentation of evidence "only exceptionally." Ocariz also lists several U.S. court decisions approving summary dispositions by arbitrators.
"An alternative dispute resolution setting is no longer a reason to avoid summary disposition of issues," he concludes. "So long as the parties’ due process rights—of notice and an opportunity to be heard—are protected, summary disposition should be used to simplify and narrow cases."