On the 1st of August 2021, the Asian International Arbitration Centre (‘AIAC’) published the new AIAC Arbitration Rules 2021 (‘2021 Rules’). One of the new changes brought by the 2021 Rules is the introduction of a summary determination mechanism under Rule 19 as a method of speedily disposing disputes between parties. Albeit new to arbitration proceedings, it is certainly not unchartered waters in the Malaysian legal scene. This is because Order 14 of the Rules of Court 2012 (‘ROC’) governs summary judgements in court proceedings, which similarly, strives to expeditiously dispose actions. Besides having the same objective, the summary determination and the summary judgement mechanisms are actually quite distinct.
For starters, Rule 19.1 of the 2021 Rules states that any party can submit a request to dismiss in whole or in part a claim, counterclaim or defence. Rule 19.1 then goes on to list the grounds for summary determination which are (a) that the claim, counterclaim or defence is without merit, or (b) that the claim, counterclaim or defence falls outside the Tribunal’s jurisdiction. In contrast, summary judgement under Order 14 of the ROC is only available to a plaintiff, whose case is plain and straightforward, that can show that the defendant has no defense against its claims. Order 14 rule 2 even adds on circumstances where summary judgement is not available to a plaintiff such as in claims for libel, breach of promise to marry, etc.
Another visible difference is the time limit to file an application. Rule 19.2 of the 2021 Rules specifies that a summary determination request must be submitted within 30 days from the filing of the statement of defence and counterclaim. Order 14 of the ROC, on the other hand, does not prescribe a time limit to file for summary judgement so long as it is done promptly as soon as the plaintiff is eligible to apply and if there is a delay, the court then has discretion to accept reasons for the delay.
Once an application has been filed for summary determination, Rule 19 does not specify the criteria that must be fulfilled by the opposing parties to defend against a summary determination request, while Order 14 rule 3 of the ROC states that the defendant must raise a triable issue in order for a plaintiff’s summary judgement application to fail.
Rule 19.5 of the 2021 Rules also adds that the Tribunal will decide whether to allow or dimiss the request within 45 days from the date of the last submission by any party to the dispute. Distinctly, the Courts deciding a summary judgement application are not confined to such time limits.
An interesting aspect of the summary determination mechanism can be found in Rule 19.8 of the 2021 Rules which allows the Arbitral Tribunal to decide whether to continue with arbitral proceedings pending the determination of the request for summary determination. Unlike Rule 19, summary judgement under the ROC has no such rules allowing the interlocutory application to run concurrently with the trial. Only when the defendant has successfully raised a triable issue would the matter proceed to trial.
The introduction of the summary determination mechanism is certainly beneficial to quickly dispose of disputes or parts of disputes, especially considering the nature of arbitration which is in itself intended to be a speedier avenue of dispute resolution compared to litigation.
Written by: Irdina Edzlyzam ([email protected]), pupil-in-chambers reading in the chambers of Chan Kheng Hoe ([email protected]).
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