The Case for Summary Proceedings in Indian Arbitration: Learning from ICSID, SIAC and Global Practice

Introduction

Arbitration, widely recognised for its speed and efficiency, now faces significant challenge owing to rising caseloads and increasing judicial intervention. The process has gradually become protracted thereby raising concerns about its ability to deliver swift and cost-effective justice in today’s complex commercial landscape. The global concern has spurred a paradigm shift, with arbitral institutions and jurisdictions re-engineering arbitration frameworks to enhance procedural efficiency and ensure viability of arbitration process.

Against this backdrop, the United Kingdom has recently made certain amendments (Amendment) to its Arbitration Act of 1996.¹ These amendments include clarification on the seat-centric approach with respect to the lex arbitri (or the procedural law) restrictions on challenging an arbitral award, and the introduction of summary judgment in the arbitration framework of the UK. This article, however, focuses specifically on the UK Arbitral Tribunal’s (Tribunal) newly conferred power to adopt summary proceedings within its domestic arbitration framework. The Amendment becomes important against the backdrop of the increasing burden on tribunals in India and the incorporation of such a provision in leading jurisdictions like the Singapore International Arbitration Centre (SIAC) and International Centre for Settlement of Investment Disputes (ICSID) for early dismissal of manifestly defective claims. In this context, the Indian arbitration landscape appears increasingly out of step. Despite undertaking several reforms aimed at modernising its arbitration regime, India has yet to formally recognise summary dismissal mechanisms.

The article builds upon the idea of summary proceedings (proceeding) and its need in the Arbitration and Conciliation Act, 1996². Authors also examine the prominent international institutional provisions for the proceedings, namely, ICSID and SIAC. Additionally, a comparison has been drawn between the proceeding and its nearest counterparts in India to draw a clear distinction. The article then moves to analyse landmark national and international judgments on proceedings that will help us in ascertaining the judicial stance across the world with respect to such proceedings. Finally, the authors will provide suggestions for the enactment of a provision dealing with proceedings in the Indian arbitration regime.

The concept of summary dismissal in arbitral proceedings

Summary proceedings³ are a distinct procedure that empowers the Arbitral Tribunal to dismiss unmeritorious or abusive claims at an early stage of the arbitration process. It can be invoked in specific circumstances where continuing with the claim or defence would be a clear misuse of time and resources.

These proceedings are applicable when the claim is manifestly without legal merit, outside the jurisdiction of the Arbitral Tribunal and is inadmissible — likely due to procedural bars or failure to meet necessary legal requirements or in cases where even if the facts alleged by the claimant are assumed to be true, no arbitral award could be rendered in their favour — showing that the claim would still fail on legal grounds even if all factual assertions are accepted.

The term “manifestly”⁴ has been interpreted by the tribunals as self-evident or clear, and “legal merit”⁵ refers to the presence of a valid legal basis for a claim, supported by factual allegations that are plausible and not merely speculative. A claim has legal merit if it asserts the infringement of actual legal rights or obligations and presents sufficient factual detail to suggest that it could realistically succeed under the applicable legal framework.

Generally,⁶ a party applies to the Arbitral Tribunal for a summary determination if they believe a claim or defence is manifestly without merit. The Tribunal then considers the application and, if satisfied, can issue an order dismissing the claim or defence. The purpose of this process is to strike a balance between efficiency, by saving time, reducing costs, and avoiding unnecessary use of resources, and fairness, by ensuring that parties are not deprived of their right to due process.

Rationale for incorporating summary dismissal mechanisms into India’s arbitration law

Despite several progressive amendments made to the Act, India’s legislation still lacks an express provision empowering Arbitral Tribunals to summarily dismiss manifestly unmeritorious claims or defences at an early stage of the proceedings. The growing complexity and volume of commercial disputes in India necessitate the incorporation of a codified proceeding within the arbitral process. This absence is particularly striking in light of India’s aspiration to establish itself as an international arbitration hub, similar to jurisdictions like Singapore⁷, the UK⁸, and Hong Kong⁹. It is noteworthy that each of these countries has incorporated summary dismissal proceedings into its institutional rules or national legislation. For instance, Article 43¹⁰ of the HKIAC Administered Arbitration Rules, 2018 published by Hong Kong International Arbitration Centre which elucidates upon the early determination procedure or Article 22¹¹ of the International Chamber of Commerce Arbitration Rules, 2021 which outlines the conduct of arbitration under which the Tribunal is empowered to adopt such procedural measures to undertake the proceeding in an expeditious and cost-effective measure upon consideration with the parties concerned.

The necessity for a formal mechanism for early dismissal is both practical and doctrinal. Firstly, without a formal process for early dismissal, Arbitral Tribunals are compelled to consider claims that lack legal merit, resulting in prolonged and costly proceedings. This situation undermines the fundamental reasons for opting for arbitration: efficiency, cost-effectiveness, and procedural economy. Secondly, in the absence of clear statutory guidance, tribunals may be hesitant to summarily dismiss cases due to concerns that their awards could be contested under Section 34¹² for alleged breach of due process or natural justice. This hesitation creates a chilling effect, discouraging arbitrators from exercising their procedural discretion and enabling parties to misuse arbitration as a means of delay or undue pressure.

Furthermore, in sectors like infrastructure, construction and commercial contracts, where arbitration is generally the default dispute resolution mechanism, summary disposal becomes essential to manage the caseload, prevent abuse of process, and ensure speedy settlement of disputes. It also aligns with international best practices and reflects commercial sensibility, as sophisticated parties prefer jurisdictions where Arbitral Tribunals are empowered to eliminate frivolous claims early.

By introducing such a provision, either through a legislative amendment or institutional rule-making, India can significantly enhance the speed, credibility, and competitiveness of its arbitration framework as a necessary step in achieving its global aspirations in alternative dispute resolution.

Examining analogous procedural mechanisms under Indian law

While India lacks an express provision for summary dismissal in arbitral framework, Section 29-B¹³ encapsulates a “fast track procedure” which allows parties to adopt such a mechanism mutually. The section, as per clause (4), mandates the proceedings to conclude within 6 months from its commencement, and it does not generally include the opportunity for oral hearings. This provision, however, suffers from various anomalies¹⁴ such as the requirement of mutual consent of the parties, rendering the entire process contingent on their cooperation. Furthermore, the lack of oral hearings, save for exceptional circumstances, appointment of a single arbitrator as opposed to the case of regular arbitration, which provides for the appointment of more than one arbitrator under Section 11(3)¹⁵ of the Arbitration and Conciliation Act, 1996, represent significant shortcomings. These deficiencies often lead to parties opting for the normal procedure under the Arbitration and Conciliation Act, 1996, and this provision continues to be largely ineffective and underutilised.

Another procedural counterpart of the summary mechanism can be found in Order 37¹⁶ of the Civil Procedure Code, 1908 (CPC).¹⁷ This order establishes a summary procedure based on the presence of an unambiguous written admission of debt. The focal point of such proceedings is whether the plea raised by the defendant involves a bona fide triable issue or not, essentially a question of jurisdictional fact.¹⁸

Rule 2¹⁹ of Order 37 states that once a summons is issued, the defendant must appear, after which the plaintiff serves a summons for judgment. The defendant cannot defend the suit unless they enter an appearance and obtain leave from the court; failing which, the plaintiff is entitled to an immediate decree.

Rule 3²⁰ outlines the procedure for serving summons and specifies that the defendant must apply for leave to defend within 10 days of receiving the summons.

This procedure is a powerful tool for a court to eliminate frivolous defences that are raised in some commercial cases, mainly to prolong the proceedings of a suit.²¹ However, a summary suit, as provided for in the Code, is maintainable if it is filed in matters of bills of exchange, hundis, and promissory notes, which reduces the scope of Order 37 to mere transactional issues, excluding other matters such as civil litigation and arbitration.²²

International approaches to summary dismissal: A study of ICSID and SIAC frameworks

The arena of global arbitration has witnessed a decisive shift toward procedural streamlining, a comparative glance at the ICSID and SIAC frameworks reveals how leading institutions are operationalising proceedings to deter frivolous claims and enhance arbitral efficacy.

Rule 41(5) of ICSID Convention Arbitration (2006 Rules)

The introduction of ICSID Arbitration Rule 41(5)²³ in 2006 marked a pivotal development in the evolution of procedural efficiency in investment arbitration occurred. Before this amendment, the global arbitral framework lacked a mechanism for the early dismissal of patently unmeritorious claims, leaving respondents with little recourse to challenge frivolous or abusive submissions at a preliminary stage. Rule 41(5) was formulated precisely to address this gap, empowering tribunals to dismiss a claim that is “manifestly without legal merit” which is a standard that has since been rigorously interpreted²⁴ to avoid undermining due process. The rule stipulates that such an application must be made within 30 days of the constitution of the Tribunal, and in any case, before the first session is held.

The jurisprudence that has emerged around Rule 41(5) reflects a strict threshold of applicability, with tribunals interpreting the term “manifestly” to mean self-evident, obvious, or plain on its face, drawing parallels with similar language used in Article 52(1)(b) of the ICSID Convention²⁵ concerning annulment of awards. In Trans-Global Petroleum, Inc. v. Hashemite Kingdom of Jordan²⁶, the Tribunal did not attempt to conclusively define “legal merit”, but emphasised that for a claim to survive Rule 41(5), it must cross a threshold of plausibility. That is, factual allegations, as has already been explained earlier, must be sufficient to raise the likelihood that the claim has a basis in law, not merely speculative assertions of liability or breach.

Moreover, ICSID tribunals have clarified that objections under Rule 41(5) are not limited solely to substantive merits but may also concern jurisdictional grounds, as first recognised in Brandes Investment Partners v. Bolivarian Republic of Venezuela²⁷ and reaffirmed in Global Trading Resource Corpn. and Globex International Inc. v. Ukraine²⁸ and Rachel S. Grynberg, Stephen M. Grynberg, Miriam Z. Grynberg, and RSM Production Corpn. v. Grenada²⁹. This dual scope, allowing objections based either on jurisdiction or on merits, enhances the procedural utility of Rule 41(5) while maintaining fidelity to the Convention’s core jurisdictional thresholds under Articles 25 and 36.³⁰ Nonetheless, tribunals have consistently emphasised that the power conferred by Rule 41(5) is ancillary³¹ and must be exercised with caution. This limitation protects parties’ rights to be heard, in line with fundamental arbitration principles of equal treatment and a reasonable opportunity to present one’s case. Empirical data³² also supports the high bar set by Rule 41(5): by 2017, early dismissal applications had been filed in 25 cases, but only 3 led to a complete dismissal, with another three resulting in partial dismissals. The ICSID rule has been widely appreciated for balancing efficiency with procedural safeguards, and its success has led other institutions to follow suit.

Rule 29 (Early Dismissal of Claims and Defences) SIAC Arbitration Rules, 2016

The SIAC has adopted Rule 29 of the 2016 Arbitration Rules³³, modelled after ICSID Rule 41(5) which empowers the tribunal to render an award on an expedited basis if a claim or defence is “manifestly without legal merit” or “manifestly outside the jurisdiction of the Tribunal”. Rule 29 ensures procedural clarity by requiring parties to submit applications in writing. Afterwards, they must respond, and a tribunal will issue a decision within strict timelines. This rule has significantly improved procedural economy in SIAC-administered cases and has been credited with deterring abusive litigation tactics. The first of its kind amongst rules for international commercial arbitration, Rule 29 has been regarded as a game-changer.

Rule 29 was the first to transpose the “manifestly without legal merit” standard into the realm of commercial arbitration. It contains two critical components: it empowers the Tribunal to summarily dismiss any: (i) claim; or (ii) defence that is manifestly without legal merit; or (iii) is manifestly outside the jurisdiction of the Tribunal. The rule contains a tripartite structure reflecting a broader scope than ICSID Rule 41(5), which is limited to claims and confined to the question of legal merit.

Notably, SIAC’s framework provides greater procedural flexibility as it does not impose a fixed time-limit for the filing of such applications and allows tribunals to entertain summary dismissal motions at any stage of the proceedings as opposed to ICSID Rule 41(5).

The key operative phrase — “manifestly without legal merit” — has been understood in accordance with ICSID jurisprudence³⁴ to be applicable only on patently unmeritorious claims. The rule requires that the absence of legal merit be immediately apparent without need for extensive inquiry, thereby avoiding mini-trials or detailed evaluation of contested facts.

A noteworthy aspect across these jurisdictions and rules is the embedding of procedural discipline, transparency, and judicial deference to tribunal autonomy. They set clear standards, offer parties a fair opportunity to be heard, and reinforce finality in awards. These mechanisms are not only doctrinally sound but practically efficacious, and their absence in India appears increasingly incongruent with global trends.

Judicial recognition of summary proceedings: Indian and international perspectives

As elucidated upon in Part III (Rationale for Incorporating Summary Dismissal Mechanisms into India’s Arbitration Law) of the article, the Indian arbitration regime lacks an explicit provision for proceedings. However, the same is not the case with other countries around the globe. For instance, in Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd.³⁵, Essar Global Fund Limited (EGFL) argued that the exercise of summary judgment for determining the award was ultra vires the powers of the International Chamber of Commerce (ICC) Arbitral Tribunal, and amounts to a violation of due process. EGFL also claimed that the 2012 Amendment purportedly omitted the inclusion of summary proceedings, thus signalling towards ICC’s objective to exclude such procedure. However, the High Court of Justice of England and Wales ruled that the proceedings fall under the scope of power of the Tribunal by citing Article 19 coupled with Article 22³⁶ of the 2012 ICC Rules³⁷ and the arbitration agreement between the parties which provided for the arbitrators’ discretion to hear and determine the issues as they may deem fit. Article 19³⁸ of the ICC Rules grants the tribunal flexibility to govern proceedings, whereas Article 22³⁹ empowers the tribunal to manage the arbitration efficiently and fairly, ensuring cost-effectiveness while giving parties a reasonable chance to present their case. The Court also denied the other two contentions raised by EGFL.

Similarly, in another US domestic arbitration case of Weirton Medical Center Inc. v. Community Health Systems Inc.⁴⁰, the issue was whether the Arbitral Tribunal has the authority to conduct proceedings between the parties without the parties’ express consent. The case concerned was in the nature of domestic arbitration, and Weirton filed a motion arguing that the disposition was not proper, as the governing law of the 2009 AAA Commercial Arbitration Rules⁴¹ did not explicitly provide for such proceedings. However, the court declined to admit the motion on the grounds that Rule L-4 of the governing law gives power to the arbitrators to act in a manner to “avoid delay and to achieve a just, speedy and cost-effective resolution of a large, complex commercial case”. The case highlighted the power of arbitrators in a US domestic arbitration to adopt any such procedure that emerges out of the parties’ agreement. It is also interesting to note that the arbitration agreement in Weirton case⁴² did not contain any explicit arrangement for the proceedings to take place.

These case studies underscore a consistent judicial trend across jurisdictions: where the arbitration rules and agreements afford discretion to the Tribunal, courts have been inclined to uphold the Tribunal’s power to adopt efficient procedures, including summary determination, even in the absence of explicit clauses in arbitration agreements.

This international perspective becomes especially significant in the Indian context, where the statutory framework is silent on proceedings during arbitration itself, but where courts have nonetheless evolved a functional alternative through judicial interpretation of Section 34 of the Arbitration and Conciliation Act, 1996, which allows a party to challenge an arbitral award in court on specific grounds like procedural unfairness, lack of jurisdiction or violation of public policy.

This interpretation is crucial, as it reflects an underlying judicial intent to resolve arbitral challenges swiftly and with minimal judicial interference, aligning broadly with international practices concerning summary disposal of unmeritorious claims.

In the landmark case of Alpine Housing Development Corpn. (P) Ltd. v. Ashok S. Dhariwal, ⁴³ which revolved around an application under Section 34. The respondents filed an interim application seeking the Court’s permission to furnish evidence that was not submitted earlier. However, the Court declined the application and held that permitting fresh evidence would defeat the legislative intent behind Section 34 i.e. to ensure speedy and efficient post-award review. The Court relied extensively on the amended Section 34(2)(a) of the Arbitration and Conciliation Act, 1996, which followed the 2019 Amendment replacing the phrase “furnish proof” with “establish on the basis of the record of the Arbitral Tribunal”. This judgment strongly reinforces the concept that Section 34 is not meant to function as a forum for dispute resolution, but rather operate as a summary proceeding with confined jurisdictional oversight. The Court also mentioned the ratio laid down in another case of Emkay Global Financial Services Ltd. v. Girdhar Sondhi⁴⁴, wherein the Supreme Court held that courts should not entertain oral evidence or conduct full-fledged evidentiary inquiries at the stage of Section 34. Only in rare and exceptional cases, when the material facts are unavailable to the Tribunal and are essential to the court’s determination, may the affidavits be filed and cross-examination be permitted.

Similar views were also expressed in Canara Nidhi Ltd. v. M. Shashikala⁴⁵, wherein the Court clarified that applications under Section 34 of the Arbitration and Conciliation Act, 1996 are treated as summary proceedings. In this context, the respondent is allowed to submit objections, while the applicant is given a limited opportunity to demonstrate the existence of grounds as outlined in Section 34(2) of the Arbitration and Conciliation Act, 1996. This process is intended to be swift and confined primarily to the arbitral record already in place, rather than involving a full-fledged trial.

The evolving jurisprudence under Section 34 reflects the judiciary’s deliberate effort to foster a more cost-efficient and expeditious resolution of arbitration-related matters. It further underscores a growing judicial recognition of the importance of incorporating proceedings as a legitimate and necessary tool within the broader framework of the Indian arbitration regime.

Legislative and institutional reforms: The way forward for India

After examining the institutional framework in place for the proceedings in national and international forums through various case laws, which have been discussed at length in the article. The authors suggest that the Arbitration and Conciliation Act, 1996 should be amended to introduce a new provision explicitly empowering Arbitral Tribunals to summarily dismiss claims or defences that are manifestly without legal merit or jurisdiction.

The language should align with international standards like ICSID Rule 41(5) and SIAC Rule 29, ensuring clarity and consistency. The statute should provide a structured process i.e. application by the party, opportunity to respond, tribunal determination within a specific timeframe, and issuance of a reasoned order. This will help to guard against allegations of procedural unfairness and align with the principles of natural justice. However, the authors contend that the adoption of such procedure must be contingent upon parties’ explicit or implied choice as derived from the arbitration agreement. Reference to adoption of “swift and economical process” may serve as strong evidence of the parties’ consent for the procedure. Derivation of consent, whether express or implied, from the agreement itself will ensure compliance and mitigate challenges that may arise on the grounds of due process and validity of award.

Additionally, the provision must set a high threshold, permitting dismissal only where claims have “no real prospect of success” or are “manifestly outside jurisdiction”, preventing abuse. Additionally, Indian tribunals should adopt similar mechanisms in their rules to standardise practice, enhance efficiency, and boost India’s appeal as an arbitration-friendly jurisdiction. This reform would expedite proceedings while safeguarding impartial decision-making.

Another alternative could be granting tribunals the authority to decide upon procedural matters to achieve a just, cost-effective, and speedy case resolution. This practice is already evident in the United States, as seen in Weirton case⁴⁶. However, the legislature ought to exercise caution when granting the Tribunals such extensive authority.

Conclusion

The promise of arbitration lies in its ability to deliver fast, flexible, and fair dispute resolution. Yet in India, the absence of summary proceeding mechanisms has led to a paradox, where arbitration increasingly resembles litigation in form, cost and duration. This procedural inertia must be corrected if India is to realise its ambition of becoming a global arbitration destination.

International frameworks such as the UK’s legislative reform, ICSID Rule 41(5) and SIAC Rule 29 demonstrate the feasibility and utility of summary proceedings in arbitration. These mechanisms preserve the Tribunal’s autonomy while ensuring that baseless claims do not clog the system. They reflect a procedural maturity that India must now adopt.

The way forward is clear: India must amend its Act to codify a summary dismissal mechanism, offer procedural clarity, and empower arbitrators to act decisively. It can also offer wide powers to the tribunals in line with the freedom given to the tribunals in the USA. Complementary changes in institutional rules, judicial interpretation, and stakeholder capacity will be critical to the success of such a reform.

Arbitration has grown itself into the preferred dispute resolution mechanism for corporations, thus playing a critical role in maintaining investor confidence and ensuring legal clarity. In this context, the integration of summary proceeding into the arbitral process is not merely a legislative afterthought or administrative efficiency measure; instead, it is a strategic imperative.

Such proceedings serve to filter out manifestly unmeritorious claims at a preliminary stage, therefore conserving arbitral resources, reducing monetary burden, and accelerating the resolution timeline. More importantly, this places the Indian arbitration regime at par with international practices, solidifying India’s image as a credible and pro-arbitration regime. Embracing these mechanisms reflects a mature arbitral ecosystem, one which is responsive to the needs of the modern world and committed to fostering a culture of judicial economy, procedural fairness and global relevance.