Law and Rules Concerning Dispositive Motions There are potential risks, of course, in that a party could potentially be denied an opportunity to fully present its case, imperiling the integrity of the award, or that its claims or defenses could be dismissed summarily while some as-yet undisclosed document, line of testimony, or credibility finding surfacing later in the proceeding would have reversed the outcome. The rationale for dispositive motions wherever they appear, in arbitration or in court, is obvious: to improve the efficiency and cost-effectiveness of the proceedings, and to avoid belaboring disputed issues where one side’s position does not hold up to scrutiny, even assuming the facts are as it claims, or simply as a matter of law. Dispositive motions are intended to provide a relatively abbreviated procedure to narrow the scope of issues in dispute, or eliminate issues entirely, potentially even resulting in an early resolution of the entire case, in the event it causes the parties to reassess their settlement positions. Through the remainder of 2020 and in 2021, however, we may see dispositive motions gain significantly greater acceptance in arbitration procedure.Ī dispositive motion, summary disposition, or early disposition is usually defined as a motion that would finally determine or dispose of an issue in dispute, much like a motion to dismiss or motion for summary judgment in judicial proceedings. as in reality it can be difficult for a tribunal to unanimously agree, at a relatively early stage in the proceeding, that one or more issues can be definitively determined without a merits hearing. This has followed from a long evolution in international arbitration towards recognizing arbitrators’ power to make early determinations arising from their inherent authority to dispose of cases or issues.īut while parties continue to bring these motions, they are still rarely granted in arbitration, 1) See Edna Sussman, The Arbitrator Survey-Practices, Preferences and Changes on the Horizon, 26 Am. In the same time frame, as discussed below, many of the major international arbitral institutions have introduced or confirmed the possibility of dispositive motions (also referred to as requests for summary or early disposition, or early determination) under their rules. Some commentators-especially from common law traditions-suggest that such motions should play a more prominent role in international arbitration. Over the past decade, many arbitrators and international arbitration practitioners have seen a consistent increase in parties’ interest in bringing dispositive motions within the context of the arbitration proceedings.
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