THE DUE PROCESS PARANOIA IN INTERNATIONAL ARBITRATION: ARE WE MOVING TOWARDS A MORE THOUGHTFULLY PROTECTED REALITY?
Paranoia over due process has afflicted the practice of law across industries, including within international arbitration. For example, in the 2015 Queen Mary University of London and White & Case survey – ‘Improvements and Innovations in International Arbitration’ – the sponsors amalgamated personal interviews that identified a growing concern about due process paranoia. Defined therein as a “reluctance by tribunals to act decisively” in anticipation of a challenged award, the test became how best to concretise a party’s access to present its case in full without abrogating existing convention protections akin to the New York Convention.
Several respondents cited delay tactics in parallel with increasing costs, as tribunals permitted repeated deadline extensions, amendments to pleadings and the introduction of additional evidence late in the proceedings, ever cautious about procedural fairness so as not to disrupt or jeopardise the award. The 2018 survey – ‘The Evolution of International Arbitration’ – reaffirmed the rising paranoia, citing it as a major issue preventing efficiency. Are we drowning the arbitral process in an “abuse of due process”, as professor Lucy Reed posited in her 2016 Freshfields Lecture, by allowing parties to invoke both shield and sword in their litany of defences?
Perhaps the hysteria has heralded the path forward for education and innovation, as stakeholders now place greater value on efficiency and transparency. For example, the 2018 survey revealed confidence in the use of increased technology to channel necessary efficiency.
Jul-Sep 2019 issue
New York International Arbitration Center