When something should be considered as arequirement of due process in arbitration has a high discretionary content. Itis the arbitrator who should, in view of the circumstances, decide whether adecision can be required or, on the contrary, prohibited depending on his orher understanding of due process.
the content of due process can be summed upin two fundamental procedural points: access to justice and reasonableness ofthe proceedings. One shall analyze the stages of arbitral proceedings presentingquestions for arbitrators of due process for annulment, or non-enforcementusually underlying an arbitrator’s inhibitions in the following six generalareas:1. when interpreting the arbitralagreement as the basis for accepting or denying their own jurisdiction. Theirdecision-making activity must remain within the limits of the agreement withoutincurring in ultra or infra petita; 2. the constitution of thearbitral tribunal itself. The correct appointment of the arbitrators forms anessential part of the arbitration. Their impartiality and independence, andtheir duty to disclose any circumstance that might call into question theirperformance of their duties is fundamental in all arbitral proceedings. 13.
the tribunal should guaranteethe performance of the arbitral agreement in good faith. Arbitrators areresponsible for fixing certain limits in order to be able to clarify whichfacts are relevant or irrelevant in the decision to be made.4. arbitrators should give eachparty a reasonable opportunity to present its case.
2Thisis required by Article V (1)(b) of the New York Convention which states thatrecognition and enforcement of an arbitral award may be refused if a party “wasotherwise unable to present his case”. This is where arbitrators should exercisetheir authority, subject to the essential principles of hearing, contradictionand equality. Arbitrators are under the obligation to combine discretionallywhat may seem like two poles apart; between legal certainty and speedyproceedings.3So what is it that is differenttoday and which has led to the reported increase in abuses of due process? Asis often the case, a number of factors are likely to have contributed to thetrend:Increasing complexity of rules,codes and other soft law, such as the IBA Guidelines on Conflicts of Interestin International Arbitration or the Rules on the Taking of Evidence inInternational Arbitration. There is an undeniable connection between theproliferation of soft law and an increase in the number of arbitrator challenges.
The point is of wide application: more soft law creates more incentives andopportunities for parties to deploy it as part of their arbitration tactics.4On a similar note, whilst thearbitration community continues to grow, at its core it remains a relativelyclosed club often riddled with conflicts of interest issues. The professionalarbitrator, often overbooked and often with years of experience as counselrepresenting 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 last10 to 15 years, including the exponential growth in the use of emails, socialmedia and other electronic data, coupled with rapidly decreasing costs ofinformation processing and the emergence of specialist e-disclosure providers,resulted in the “documentary tsunami”.5This is one of the most fertile grounds for abuses of due process, as partiesmake use of almost endless opportunities to complain about disclosure andproduction of documents.6It is perhaps also true that thecases that come before arbitrators today are increasingly complex andmultifaceted. For example, the calculation of damages is a whole industry inits own right, with the quantum expert being an ubiquitous presence in thearbitration proceedings.
Naturally, the more complex the issues and the moredetailed the presentation of those issues are, the more opportunities for aparty to raise multiple procedural objections.Then there is the economics ofarbitration. Typical costs of a full-length institutional arbitration, in amajor arbitration centre, are such that it makes no economic sense to bring aclaim unless it is for a sum at least in the low millions of pounds. The resultis that arbitration is effectively a premium service, where the parties, havingdecided 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 ofmillions of pounds are at stake, the imperative (and perhaps even duty on thepart of counsel) to use all means at a party’s disposal becomes especiallyacute, whilst the cost of pursuing a very aggressive tactic proportionatelydiminishes.Theabove 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 wherepossible, rather than simply appeal for more robustness from arbitrators.Viewed from this perspective, a more efficient arbitral process might wellprove to be a cure (or at least a palliative) for due process abuses, ratherthan being its victim.1 Nigel Blackaby and others, Redfern and Hunter on InternationalArbitration (6th edn, Oxford University Press 2015) para 1.
114.2 Klaus Peter Berger and J. Ole Jensen, ‘Due process paranoia and theprocedural judgment rule: a safe harbor for procedural management decisions byinternational 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 dansl’Arbitrage Commercial International”, in Recueil des Cours of the HagueAcademy of International Law 108, Tome 279 (1999):4 Mark Baker atthe IBA International Arbitration Day(2009),5 Turnbull, E.J., 2014.
Opting Out of theProcedural Morass: A Solution to the Class Arbitration Problem. WidenerL. Rev., 20, p.43.6 Michael Schneiderat the 2009 IBA International Arbitration Day