ICDPASO Commercial Arbitration Rules Interpretation Series23“Early Dismissal of Arbitration Application or Defense”

Reviewing the innovations and development trends in international arbitration over the past decade, one conspicuous feature is that most institutional reforms have sought to strike a balance between efficiency and fairness. In particular, where certain arbitration claims are manifestly unsupported or appear to be mutually conditional with other arbitration claims, the preliminary judgment of the claims (rejection or inclusion in the scope of review) helps the parties to fix the final arbitration claims and improve the efficiency of resolving the dispute. Against this backdrop, Article 23 of the ICDPASO Commercial Arbitration Rules (“the Rules”), which establishes an “Early Dismissal of Arbitration Application or Defense” mechanism, is a procedural arrangement that combines an international perspective with practical effectiveness and, at the time of the Rules’ promulgation in 2022, was also a forward-looking and innovative initiative. Drawing on the mature experience of leading arbitral institutions such as SIAC, HKIAC, and the ICC, and with reference to international investment arbitration practice such as ICSID, this provision creates a fast-track screening procedure with strict thresholds—namely that “the arbitration application or defense obviously lacks legal basis” or “the arbitration application or defense is obviously beyond the jurisdiction of the Arbitral Tribunal”. Its essence lies in empowering parties, at an early stage of the proceedings, to challenge plainly untenable claims or defences, and enabling the tribunal—while ensuring each party has a fair opportunity to be heard—to issue an order or award within the agreed and prescribed time limits. In this way, the mechanism clarifies the focus of the dispute, deters potential abusive claims, and significantly enhances arbitral efficiency. This article provides a systematic commentary on the provision’s textual meaning, operational procedure, international comparisons, and practical advantages, in order to highlight its value in expeditiously resolving commercial disputes and optimizing the allocation of arbitral resources, as well as its rule-based features that align with the direction of revisions to China’s arbitration legislation.

I. Text of Article 23 of the Rules: “Early Dismissal of Arbitration Application or Defense”

Article 23. Early Dismissal of Arbitration Application or Defense

1. The parties may request the Arbitral Tribunal for early dismissal of the arbitration application or defense on the following grounds, with the facts and legal basis supporting their request explained:

(a) the arbitration application or defense obviously lacks legal basis; or

(b) the arbitration application or defense is obviously beyond the jurisdiction of the Arbitral Tribunal.

When submitting the application to the Arbitral Tribunal, the party who made the application for early dismissal shall serve a copy of the application to the other parties and inform the Arbitral Tribunal of the service, including the method and date thereof.

2. The Arbitral Tribunal shall, after giving the parties a reasonable period of time to express their opinions, make an order or award on the aforesaid application and briefly explain the reasons.

3. Unless there are special circumstances and the Court of Arbitration agrees to extend the time limit, the Arbitral Tribunal shall make an order or award within thirty (30) days as of the date of receiving the application

II. Commentary on Article 23 paragraph 1: Grounds for Early Dismissal and the Application Procedure

1. Paragraph 1 of Article 23 of the Rules (the “Article 23”) specifies two statutory grounds on which a party may apply to the arbitral tribunal for the early dismissal of a claim or defence, namely: (i) the arbitration application or defense obviously lacks legal basis; (ii) the arbitration application or defense is obviously beyond the jurisdiction of the Arbitral Tribunal. These standards are consistent with prevailing practice in contemporary international arbitration. For example, the SIAC Rules were among the first to introduce an early dismissal mechanism in 2016, allowing parties to seek dismissal of claims or defences that are manifestly without legal merit or manifestly outside the tribunal’s jurisdiction. 1 The HKIAC Administered Arbitration Rules also introduced an Early Determination procedure in Article 43 of its 2018 rules, permitting an expedited decision on issues of fact or law that are manifestly without merit or manifestly outside the tribunal’s jurisdiction.2 As this comparison shows, the Rules Article 23’s adoption of “obviously lacks legal basis” and “obviously beyond the jurisdiction of the Arbitral Tribunal” as the principal thresholds for early dismissal aligns with mainstream international standards.

It is important to note that the word “obviously” sets a high threshold for dismissal, ensuring that only claims/defences that are plainly untenable or clearly beyond arbitral jurisdiction may be dismissed at an early stage, thereby preventing abuse of the procedure. This standard draws on the expedited dismissal mechanism introduced in the 2006 amendments to the ICSID Rules of Procedure for Arbitration Proceedings (2006) (ICSID Rules).3 ICSID Rules Article 41(5) permits an objection that a claim is “manifestly without legal merit” and its commentary emphasizes that “manifestly” requires the applicant to demonstrate, clearly and obviously, that the opposing party’s claim cannot stand as a matter of law. ICSID case law4 has further interpreted “manifestly without legal merit” to mean that the applicant must be able to show, in a relatively easy and expeditious manner, that the claim is legally incapable of succeeding. When reviewing such applications, tribunals generally assume the respondent’s factual allegations to be true (unless they are plainly false or abusive) and assess only whether, as a matter of law, the claim is doomed to fail. Article 23 borrows this stringent approach, ensuring that the tribunal may dismiss a claim or defence only where it is satisfied that the claim/defence obviously lacks legal basis or is obviously beyond its jurisdiction, thereby balancing procedural efficiency with the parties’ procedural rights.

2.Under Article 23 paragraph 1, any party may request for early dismissal. This means the Rules permit both: (i) an applicant seeking dismissal of a respondent’s defence or counterclaim; and (ii) a respondent seeking dismissal of the claim itself. As to timing, Article 23 does not prescribe a specific deadline, requiring only that the applicant set out the facts and legal basis supporting the request. This reflects a degree of flexibility. International experience, however, shows that the utility of early dismissal lies in identifying and removing untenable claims as early as possible, and therefore institutions commonly encourage applications to be made at an early stage of the proceedings. By comparison, the CIETAC Arbitration Rules (2024)—when introducing an early dismissal procedure—expressly require that an request be made “as early as possible,” and no later than the submission of the statement of defence or the reply to the counterclaim.5 The HKIAC Rules (2024) similarly provide that any request shall be made as promptly as possible after the relevant points of law or fact are submitted.6 Although the ICC Arbitration Rules do not contain an express “early dismissal” provision, the ICC practical guidance updated in connection with the 2021 revisions clarifies that, pursuant to the case management function conferred under Article 22 of the ICC Arbitration Rules, the arbitral tribunal may issue expedited rulings on requests or defenses that are “manifestly without factual or legal basis”.7

Accordingly, while the formulations differ, leading institutions all emphasize the importance of timeliness, so that the mechanism is not triggered only after the case has already moved into substantive hearings, thereby undermining efficiency. Although ICDPASO sets no rigid cut-off date, it is expected that tribunals will assess, in light of the procedural posture, whether an application is made within a reasonable time. In practice, parties should adhere to the principle of good faith: once a party identifies that the opposing claim is manifestly untenable or jurisdictionally overreaching, it should initiate the early dismissal procedure promptly, rather than strategically delaying until the later stages of the proceedings.

3.The latter part of Article 23 Paragraph 1 requires that when submitting the application to the Arbitral Tribunal, the party who made the application for early dismissal shall serve a copy of the application to the other parties and inform the Arbitral Tribunal of the service, including the method and date thereof. This requirement is similar to the approach under the SIAC Rules (2016).8 Its purpose is to ensure procedural transparency and equality: a party should not be permitted to “ambush” the other side with an application that leaves it unprepared. By requiring the applicant to notify the other parties and provide proof of service, Article 23 safeguards the opposing party’s equal right to be informed and to prepare its response. In this sense, Article 23’s notice obligation embodies the principle of procedural equality and prevents one party from abusing the early dismissal mechanism in a manner that would deprive the other party of a fair opportunity to present its case.

III. Commentary on Article 23 paragraph 2: The Tribunal’s Review Procedure and the Form of Decision

1. Safeguarding Procedural Justice. Paragraph 2 provides that, before deciding an application for early dismissal, the arbitral tribunal must give all parties a reasonable period of time to express their opinions. This requirement reflects the principle of procedural justice, ensuring that both the claimant and the respondent have an opportunity to be heard. In practice, tribunals typically set a tight but reasonable timetable for written submissions and replies. Unlike ordinary arbitration procedure

—often involving extensive document production and multiple rounds of pleadings—early dismissal is designed to be dealt with expeditiously. Accordingly, the tribunal may limit the parties’ submissions to the legal or jurisdictional issues raised by the application, and will generally not permit extensive new evidentiary disclosures unless exceptional circumstances exist. For example, the ICC Note to Parties and Arbitral Tribunals recommends that, when dealing with such applications, the tribunal consult with the parties and adopt procedural measures it considers appropriate, and further presentation of evidence will only be allowed in exceptional circumstances.9 Through this approach, the tribunal accelerates the process while still ensuring that each party has a full—but focused—opportunity to be heard, without sacrificing procedural fairness.

This approach is also confirmed in comparative practice: the SIAC Rules (2025) expressly require that the tribunal give each party the opportunity to be heard before deciding the application;10 the HKIAC Rules likewise require the tribunal to provide all other parties with an opportunity to submit comments on the request before issuing a decision whether to accept the application and before determining it on the merits.11 Paragraph 2 therefore aligns with international standards and ensures that the early dismissal procedure remains efficient without compromising fairness.

2.Order or Award. Paragraph 2 further provides that the tribunal shall make an “order or award” on an application for early dismissal, and shall briefly explain the reasons. This wording gives the tribunal flexibility as to the form in which its decision is recorded. In arbitral practice, where the tribunal dismisses the application (i.e., decides that the claim/defence should proceed), it is often sufficient to notify the parties by way of a procedural order. Where the tribunal grants the application and dismisses the relevant claim or defence on a substantive basis, it more commonly does so by way of a partial award or a final award. By way of comparison, the SIAC Rules provide that, if the application for early dismissal is allowed to proceed, the Tribunal shall make a decision, ruling, order, or award on the application, with reasons which may be in summary form12 The HKIAC Rules similarly require the tribunal to make its order or award.13 The ICC Note likewise emphasizes that the tribunal should record its determination in an order or award and state the reasons for its decision in as concise a fashion as possible.14 The Rules follow this international approach. Notably, paragraph 2 requires the tribunal to briefly explain the reasons. Even if succinct, the reasons must be sufficient to inform the parties of the basis on which the tribunal has granted or refused early dismissal. This not only satisfies the basic requirement of reasoned decision-making, but also helps demonstrate—at the enforcement stage or in any potential judicial review—that the tribunal did not act ultra vires and that due process was observed. For example, in DBO v. DBP, Singapore International Commercial Court reviewed a partial award rendered under the SIAC early dismissal procedure, focusing on whether the tribunal had afforded the parties an adequate opportunity to be heard and whether the reasons were sustainable. The court ultimately found no procedural impropriety and dismissed the losing party’s application to set aside the award.15 The case illustrates that, so long as the tribunal follows a fair procedure, hears both parties, and sets out brief reasons, early dismissal does not violate natural justice and can withstand judicial scrutiny.

3.The choice between an order (procedural order) and an award may affect legal effect and available remedies. In arbitral practice, determinations that finally dispose of substantive claims are generally rendered in the form of an award (whether a final award or a partial award), thereby becoming enforceable under the New York Convention; procedural determinations are usually issued as orders and are not directly enforceable. In the early dismissal context, however, the boundary is not always absolute. For example, where the tribunal dismisses all claims, it effectively terminates the merits of the case and should ordinarily conclude the arbitration by a final award. Where only part of the claims or defences are dismissed and the remainder of the case continues, the tribunal may choose to issue a partial award for the dismissed portion, while using a procedural order to address matters relating to the continuation of the proceedings. Article 23 of the Rules leaves this determination to the tribunal, thereby providing the tribunal with necessary flexibility.

IV. Commentary on Article 23 paragraph 3: Decision Time Limit and Procedural Efficiency

1. A Clear Commitment to Efficiency. Paragraph 3 provides that, unless there are special circumstances and the Court of Arbitration agrees to extend the time limit, the Arbitral Tribunal shall make an order or award within 30 days as of the date of receiving the application for early dismissal. This is a relatively stringent time requirement and demonstrates the Rules’ strong emphasis on procedural efficiency. Among leading arbitral institutions, the 30-day period is notably tight. By comparison, the SIAC Rules (2025) require the tribunal to decide an early dismissal application within 45 days from the date of filing the application, unless the Registrar extends the time.16 The HKIAC Rules (2024) set a 60-day time limit and permit extensions either by party agreement or, where appropriate, at HKIAC’s discretion.17 By contrast, ICDPASO’s requirement—completion within 30 days of receipt—reflects an even stronger commitment to speed and operational efficiency.

2. Extension in Special Circumstances. The provision also recognizes practical complexities by allowing an extension where there are special circumstances, subject to the Arbitration Court’s consent. This is consistent with the approach taken by many institutions. Such design prevents arbitral tribunals from prolonging the early dismissal process at will, confines extensions to situations of genuine necessity, and introduces institutional oversight. From this provision, the requirement of approval by the Court of Arbitration reflects the institution’s supervisory function: the tribunal must explain the special circumstances to the ICDPASO Arbitration Court and obtain authorization for an extension. This helps ensure that extensions are used prudently and prevents either party from undermining the efficiency of the early dismissal mechanism through dilatory procedural tactics.

3. The impact of the 30-Day Requirement on arbitration practice. The requirement to decide within 30 days imposes significant procedure organization demands on tribunals. Upon receipt of an application, the tribunal must promptly initiate review steps—for example, quickly notifying the other party, setting short deadlines for submissions, convening a meeting if necessary, deliberating, and drafting the decision. In practice, this may require arbitrators to work at a more intensive pace than in ordinary arbitration. Although the time limit is shorter, it may encourage both tribunals and parties to drive the process forward more proactively. ICDPASO’s allowance for extension in special circumstances is designed to address the small number of complex matters in which 30 days may be insufficient. For instance, where the application involves intricate legal issues or voluminous evidentiary materials, the tribunal may request the Court of Arbitration’s approval for a reasonable extension, ensuring that decision quality is not sacrificed for speed.

V. Core Features and Practical Advantages of the Article 23 “Early Dismissal” Mechanism

Based on the foregoing commentary and comparative analysis, several core features of the early dismissal mechanism under Article 23—and the practical advantages they generate—may be distilled as follows:

1. Internationally Aligned Threshold Standards. Article 23 adopts “obviously lacks legal basis / obviously beyond the jurisdiction of the Arbitral Tribunal” as the sole thresholds, consistent with international rules such as those of SIAC and HKIAC. It does not add subjective or more elastic grounds, thereby preserving the clarity and rigor of the standard. The advantage is that it provides the tribunal with a clear and workable benchmark: it is designed to address only claims that are plainly untenable at first glance, and to avoid excessive tribunal intervention in disputes that warrant full consideration. This design appears familiar and credible to international users, reduces interpretive uncertainty, and reflects a professional rulemaking approach aligned with global practice.

2. Expedited Determination and Procedural Streamlining. The requirement to issue an order or award within 30 days makes the early dismissal procedure a true “fast track.” This is especially attractive to commercial parties, who can reasonably expect certain legal impediments to be resolved in a very short timeframe, thereby clarifying the trajectory of the case sooner. The efficiency benefit is particularly significant in complex disputes: for example, in multi-claim cases, if some claims are plainly untenable, they can be stripped out within 30 days, allowing subsequent proceedings to focus on the core issues and saving substantial time and cost.

3. Balanced Procedural Safeguards. While emphasizing speed, Article 23 still protects procedural rights. As noted above, it requires service on the other party and an opportunity to be heard, and it requires the tribunal to state reasons for its decision—all of which reflect respect for parties’ rights to participate and to be informed. Moreover, the Rules do not dilute the high “obviously” threshold in the name of efficiency, meaning tribunals will not lightly deprive parties of a full opportunity to present evidence. This balance means the mechanism is both fast and disciplined. In practice, it reduces the risk of court interference or set-aside of awards on due process grounds, and makes participants—arbitrators, parties, and representatives—more willing to use the mechanism appropriately.

4. Flexible Decision Forms and Enforceability. Article 23 permits the tribunal to decide by order or award, giving it flexibility to match form to function. In particular, where early dismissal produces a dispositive outcome, the tribunal may issue a partial award or final award, enhancing enforceability. Express authorization in the Rules for tribunals to issue such awards also mitigates doubts at the enforcement stage about the validity of the decision. Courts, when enforcing foreign awards, pay close attention to whether the arbitration complied with due process and whether the tribunal acted within its authority. Article 23 supports the conclusion that an early dismissal award is made pursuant to the parties’ agreed rules and does not constitute an excess of authority. Accordingly, early dismissal awards rendered under ICDPASO Article 23 should, in principle, satisfy the requirements for recognition and enforcement under the New York Convention, and are less likely to be refused enforcement. The design therefore combines procedural flexibility with robust outcomes, achieving an optimal balance between operational practicality and legal certainty.

5. Sound Alignment with the Chinese Legal Environment. When designing the rules, ICDPASO has taken account of features of Chinese arbitration practice and the domestic legal environment in designing its rules. The newly revised PRC Arbitration Law adopted by the Standing Committee of the 14th National People’s Congress at its 17th session (the “New Arbitration Law”) does not expressly provide for early dismissal, but it sends positive signals through principles such as good faith and provisions addressing dismissal in cases involving malicious collusion. ICDPASO Article 23 aligns with these value orientations and can be seen as an organic extension of the principles reflected in the New Arbitration Law.