When questions for arbitrators of due process for annulment,

When something should be considered as a
requirement of due process in arbitration has a high discretionary content. It
is the arbitrator who should, in view of the circumstances, decide whether a
decision can be required or, on the contrary, prohibited depending on his or
her understanding of due process. the content of due process can be summed up
in two fundamental procedural points: access to justice and reasonableness of
the proceedings. One shall analyze the stages of arbitral proceedings presenting
questions for arbitrators of due process for annulment, or non-enforcement
usually underlying an arbitrator’s inhibitions in the following six general

when interpreting the arbitral
agreement as the basis for accepting or denying their own jurisdiction. Their
decision-making activity must remain within the limits of the agreement without
incurring in ultra or infra petita; 

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the constitution of the
arbitral tribunal itself. The correct appointment of the arbitrators forms an
essential part of the arbitration. Their impartiality and independence, and
their duty to disclose any circumstance that might call into question their
performance of their duties is fundamental in all arbitral proceedings. 1

the tribunal should guarantee
the performance of the arbitral agreement in good faith. Arbitrators are
responsible for fixing certain limits in order to be able to clarify which
facts are relevant or irrelevant in the decision to be made.

arbitrators should give each
party a reasonable opportunity to present its case.2This
is required by Article V (1)(b) of the New York Convention which states that
recognition and enforcement of an arbitral award may be refused if a party “was
otherwise unable to present his case”. This is where arbitrators should exercise
their authority, subject to the essential principles of hearing, contradiction
and equality. Arbitrators are under the obligation to combine discretionally
what may seem like two poles apart; between legal certainty and speedy

So what is it that is different
today and which has led to the reported increase in abuses of due process? As
is often the case, a number of factors are likely to have contributed to the

Increasing complexity of rules,
codes and other soft law, such as the IBA Guidelines on Conflicts of Interest
in International Arbitration or the Rules on the Taking of Evidence in
International Arbitration. There is an undeniable connection between the
proliferation of soft law and an increase in the number of arbitrator challenges.
The point is of wide application: more soft law creates more incentives and
opportunities for parties to deploy it as part of their arbitration tactics.4

On a similar note, whilst the
arbitration community continues to grow, at its core it remains a relatively
closed club often riddled with conflicts of interest issues. The professional
arbitrator, often overbooked and often with years of experience as counsel
representing numerous clients, is an easy target for a party (or counsel)
aggressively pursuing arbitrator challenges or raising due process objections.

The data revolution in the last
10 to 15 years, including the exponential growth in the use of emails, social
media and other electronic data, coupled with rapidly decreasing costs of
information processing and the emergence of specialist e-disclosure providers,
resulted in the “documentary tsunami”.5
This is one of the most fertile grounds for abuses of due process, as parties
make use of almost endless opportunities to complain about disclosure and
production of documents.6

It is perhaps also true that the
cases that come before arbitrators today are increasingly complex and
multifaceted. For example, the calculation of damages is a whole industry in
its own right, with the quantum expert being an ubiquitous presence in the
arbitration proceedings. Naturally, the more complex the issues and the more
detailed the presentation of those issues are, the more opportunities for a
party to raise multiple procedural objections.

Then there is the economics of
arbitration. Typical costs of a full-length institutional arbitration, in a
major arbitration centre, are such that it makes no economic sense to bring a
claim unless it is for a sum at least in the low millions of pounds. The result
is that arbitration is effectively a premium service, where the parties, having
decided to commit a small fortune to pursuing a claim, will want, and expect,
to have all the opportunities to advance their case.

Where tens or hundreds of
millions of pounds are at stake, the imperative (and perhaps even duty on the
part of counsel) to use all means at a party’s disposal becomes especially
acute, whilst the cost of pursuing a very aggressive tactic proportionately

above list is by no means exhaustive, and other factors might also be at play.
The point is that in order to deal with the problem of abuse of due process,
insofar as it exists, it is necessary to address the underlying issues where
possible, rather than simply appeal for more robustness from arbitrators.
Viewed from this perspective, a more efficient arbitral process might well
prove to be a cure (or at least a palliative) for due process abuses, rather
than being its victim.

1 Nigel Blackaby and others, Redfern and Hunter on International
Arbitration (6th edn, Oxford University Press 2015) para 1.114.

2 Klaus Peter Berger and J. Ole Jensen, ‘Due process paranoia and the
procedural judgment rule: a safe harbor for procedural management decisions by
international arbitrators’, in João Bosco Lee and Daniel de Andrade Levy (eds),
Revista Brasileira de Arbitragem, (© Comitê Brasileiro de Arbitragem CBAr &
IOB) Pg. 73.

3 DOMINIQUE HASCHER, “Principales et Pratiques de Procédure dans
l’Arbitrage Commercial International”, in Recueil des Cours of the Hague
Academy of International Law 108, Tome 279 (1999):

4 Mark Baker at
the IBA International Arbitration Day(2009),

5 Turnbull, E.J., 2014. Opting Out of the
Procedural Morass: A Solution to the Class Arbitration Problem. Widener
L. Rev., 20, p.43.

6 Michael Schneider
at the 2009 IBA International Arbitration Day