6 Although some commentators have suggested that it is possible for such authority to be read into the general provision, 7 tribunals no doubt take different views on this. 5 During the past few years, major arbitral institutions have departed from this trend, and there is an increasing number of institutional rules that now expressly provide for powers of summary dismissal of claims.
The governing rules of most arbitral institutions did not stipulate in express terms the arbitral tribunal's authority to dismiss claims in an expedited fashion, other than to make a general provision for the tribunal to 'conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties' disputes'. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to or to object, in the course of the proceeding, that a claim lacks legal merit. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The party shall specify as precisely as possible the basis for the objection.
3 Rule 41(5) reads: Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The promulgation of Rule 41(5) in the Rules of Procedure for Arbitration Proceedings of the International Centre for Settlement of Investment Disputes (the ICSID Arbitration Rules) on 10 April 2006 was a bold and innovative step in international arbitration, 2 and remained a unique feature of the ICSID Arbitration Rules for the first 10 years of their promulgation. This article is an extract from The Investment Treaty Arbitration Review, 7th Edition.