20 January 1995, Geneva, Switzerland
The WIPO Expedited Arbitration Rules: Fast-Track Arbitration
by Albert Jan van den Berg
Stibbe, Simont, Monahan, Duhot, Amsterdam; Vice-President, NAI
There are at least three persons in this world who believe firmly that a fast-track international arbitration is a very bad concept. That is my wife, my daughter and my son. The experience was a rather complex energy dispute between an American and Asian party, where the place of arbitration was, unfortunately from my perspective, in the Asian country. The award, according to the arbitration agreement, had to be rendered within three months after the commencement of the arbitration. There was no possibility of an extension of time provided for.
It was a tribunal of three persons and I was appointed as Chairman one month after the commencement of the arbitration. The commencement was in November, and my appointment was in December.
The hearings took place on New Years Day. Then, an interim award was to be rendered, because it turned out that there were also preliminary questions. That occurred some four days later. I drafted the award on the airplane back. Then it had to be circulated amongst the arbitrators, my two co-arbitrators, and then two days later it was issued. The next award was indeed issued within the time limit prescribed, the three months. The problem, of course, was the that I had one co-arbitrator who took his function as a party arbitrator rather literally. Anyway, we made it, but the consequence was no Christmas turkey, no New Years Eve parties, three months out of practice and clients wondering whether I still existed.
So I would like to suggest that, when you are being approached as a fast-track arbitrator, you consider at least the four following points. Similarly, if you are considering counselling your clients to agree to fast-track arbitration, you may well take into account these points and try to imagine how a fast-track arbitrator may deal with them.
The first point is: can you, as a fast-track arbitrator, indeed set aside the time necessary for a fast-track arbitration? What is special about fast-track arbitration is that you are approached today, and you have to start not tomorrow, but even today with your three months work. What you then have to do is to set aside all your other work.
Second, consider whether the parties are indeed cooperative, and not only cooperative in agreeing to it, but also cooperative in the fast-track process. If one of the parties does not wish to cooperate, notwithstanding having signed the agreement to a fast-track arbitration, you may run into trouble. Then, a fast-track arbitration may become a snail track.
Third, and this is in relation to the previous point, you should insist, before accepting the appointment, that the parties give you the power to extend periods of time. In the case of the WIPO Rules you have no problem because that is provided for in the Rules. If you have a different system, look very carefully to the Rules to ensure that you do have that power. If not, you may again run into trouble. All kinds of things may happen in your fast-track arbitration: preliminary questions may come up; you may have to make interim awards; a co-arbitrator may be uncooperative; a party may be uncooperative; a party can even blackmail you, knowing that the time limit is running out and then, after the expiry of the time limit, you will no longer have a mandate to act as arbitrator. Be sure that you have this power to extend time limits in exceptional cases.
A final point I should like to submit to you is this: Are you yourself up to doing what may be called "rough justice?" I do not say that in all cases of fast-track arbitration you will do rough justice. But there may be cases where indeed, instead of giving a 100% satisfactory award, you may have to give what Jan Paulsson described as a 90% satisfactory award. Some of us have no problem with that. Others, for equally valid reasons, may think: No. I want to do justice for 100%. If you fall into that category, I would suggest that you do not accept a fast-track arbitration. Otherwise, you may end up on the couch of a shrink.
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