|Date||06 11 2017|
|Place||Mandarin Oriental Hotel 500 Brickell Key Dr, Miami, FL 33131|
6 November 2017, Mandarin Oriental Hotel, Miami 7.00 am-8.45 am
With growing demands for more cost-effective procedures there is a question whether arbitrators are doing enough to ensure the parties’ needs are met
Queen Mary University of London and White & Case released their third International Arbitration Survey entitled Improvements and Innovations in International Arbitration. One of the findings of this survey is that there are increasing concerns by some users of arbitration of what can be termed as “due process paranoia.”
Due process paranoia is defined by the survey as “a perceived reluctance by [arbitral] tribunals to act decisively in certain situations for fear of the award being challenged on the basis of a party not having had the chance to present its case fully.”
The demands of due process are present in relation to any decision made by an arbitrator during the processing of arbitral proceedings. However, from time to time lawyers representing the parties raise questions of due process in an intimidating way, suggesting that if the arbitrator does not accept their procedural proposals the result would be a breach of due process.
In many arbitral situations, “due process” is then perceived as a threat to the tribunal. When, in a party’s submissions or at the hearing, one of the lawyers lets the expression “due process” slip, the tribunal usually understands it as a warning that, if the arbitrator does not agree to their petition, the award will be subsequently annulled.
Embedded in the origins of due process is the protection of the right of defence. Today, it has seemingly gained the added role of an antagonistic sword, magically conjured through the words “due process,” to force the tribunal to accept certain procedural claims.
The criticism levied against arbitrators as well as the silence over the abuses by lawyers in arbitral proceedings is noteworthy.