The Blakes litigator and arbitrator talks about the benefits and challenges of the sped-up process
Expedited arbitration procedures are filling a critical gap in commercial dispute resolution, offering businesses a faster, more accessible alternative to both traditional arbitration and court proceedings for mid-value disputes, according to Laura Cundari, a litigation and arbitration partner at Blake, Cassels & Graydon LLP in Vancouver.
While expedited procedures aren't entirely new – the Geneva Chamber of Commerce introduced them in the 1990s – their use has surged over the past decade as institutions such as the International Centre for Dispute Resolution and the International Chamber of Commerce have implemented streamlined rules. Cundari attributes the growing adoption to increased pressure on court systems, concerns about access to justice, and the business community's broader embrace of arbitration.
The defining features of expedited procedures are speed and efficiency, with cases typically resolved within three to six months from the tribunal's appointment to a final decision. This compressed timeline is achieved by limiting procedural steps that characterize traditional litigation and arbitration, with most expedited procedures defaulting to no oral hearing unless parties request one or the arbitrator deems it necessary. "In ICC proceedings, in the majority of their expedited arbitrations, there's no document production at all, which can be quite different for arbitration and litigation counsel to get used to," Cundari says. The cost savings are substantial, with the Vancouver International Arbitration Centre paying arbitrators a flat fee between $5,000 and $10,000, depending on the dispute's quantum.
Cundari, who has acted both as counsel and arbitrator in expedited proceedings at institutions including VanIAC and the ICC, says these procedures address a fundamental challenge that has emerged as arbitration has matured. "As people have become more used to it, and we get more litigators using it, bringing in litigation-type processes to arbitration, the cost of arbitration sometimes increases," she says. Expedited procedures offer "an alternative route to get back to that fast, efficient type of decision making that really drew people to arbitration in the first place."
From an arbitrator's perspective, expedited proceedings present unique challenges that require balancing efficiency with procedural fairness. "You need to ensure that the parties get an efficient process, but you also need to protect procedural fairness and make sure that the process isn't so pared down that parties are not actually getting a chance to be heard," Cundari says. This requires creativity and active guidance, with arbitrators needing to look at each dispute individually to determine what's appropriate.
Document production represents one area where creativity is essential. Cundari sometimes has parties make document requests before anything is filed other than initial notice materials, so they can access relevant documents prior to making their initial filings. For technical or expert-related issues, parties might use video and other demonstrative evidence rather than relying on expert testimony.
Cundari says the ideal cases for expedited procedures are contract interpretation disputes in which the facts are largely undisputed, and the parties need a decision-maker to apply those facts to the contract. "Where you have a situation in which the parties do need a lot of document production from each other, that it's just not going to work," she says, noting that extensive document production or significant technical expert evidence cannot be accommodated within a three-to-six-month period.
The cost savings materialize primarily through streamlined document production, elimination of oral hearings and witness preparation, and reduced scope of written submissions. Cundari sometimes imposes a 25-page limit on submissions in expedited cases, compared to a 100-page limit in larger disputes. However, she cautions that clients need to be comfortable with the process before opting in, as some want an oral day in court to tell their story. Claimants need everything ready before filing, given the compressed timeframe, while respondents must be prepared for intensive client involvement.
For newer arbitrators handling these disputes, Cundari encourages them to consult with seasoned arbitrators and to use resources such as the ICC's recently published expedited procedures toolkit, noting that newer arbitrators may be tentative about imposing creative solutions on parties.
Contract drafting offers a critical opportunity to incorporate expedited procedures, and Cundari recommends that parties specify monetary thresholds below which disputes will be subject to expedited procedures. While the ICC's expedited procedures can apply to disputes up to $3 million, different clients have different comfort levels. "Commercial people don't want to spend years doing discovery; they want to get a quick business decision," she says, noting that if the option isn't raised during contract drafting, it can be difficult to get parties to opt in once a dispute arises.
Some clients remain uncomfortable with expedited procedures because many provisions limit the right to appeal beyond cases involving procedural unfairness. The combination of a streamlined process and the absence of an appeal can be challenging for some businesses. Large organizations, such as government entities or corporations with multiple departments, may also find the compressed timeframe impractical.
Cundari pushes back against concerns that increased speed risks fairness or quality of outcomes, arguing that modern communication patterns support written proceedings. "In modern society, the way we communicate is largely in writing," she says, noting that there's now so much contemporaneous documentation where parties are communicating with each other that arbitrators would be looking to verify oral testimony anyway. She acknowledges that self-represented parties may face challenges in presenting their cases in writing.
Looking ahead, Cundari expects expedited procedures to continue growing as they fill a gap between small-claims courts, which in many provinces handle disputes below $50,000, and multi-million-dollar arbitrations. However, continued growth will depend on user experience and the quality of Canada's arbitration community in efficiently running these proceedings. She suggests that institutions could provide more detailed guidance on how to keep proceedings fair and efficient, thereby managing expectations and providing a more consistent experience.
An additional benefit has been the creation of opportunities for a younger, more diverse group of arbitrators to gain experience, Cundari says, giving individuals with substantial counsel experience the opportunity to secure their first appointment.
