WHEN LOGIC FAILS: DUE PROCESS PARANOIA
An increasing number of arbitration users and practitioners are criticising the unreasonable increase of procedural complaints related to due process observance – because it has given rise to excessive costs and extended the duration of arbitration proceedings.
If you are a lawyer in a corporate environment, be it a general counsel or one of the hard working legal minds pushing the corporate agenda, few things really matter. You aim to work through corporate disputes as efficiently as possible, stick to budgetary requirements, create as much certainty as possible for corporate management and manage risks to your business.
Private practice lawyers did not always understand the tensions in-house lawyers face on a daily basis. This is changing and the age of the law firm ‘black box’ has disaggregated over the last 20 years, with the rise of alternative pricing methods such as fixed rates, blended rates, success fees and more scrutiny from clients with regular updates on caseloads and strategies.
Still, tensions can occur when arbitral proceedings become confrontational, and the balance between efficiency, party autonomy and due process can often get blurry. This may arise when the perspective of arbitrators and the parties on the outcome of the dispute clash, or when certain parties play a game to gain advantage over the other party, or simply to delay proceedings or intimidate the tribunal. There are also cultural differences in document production between common law and civil law jurisdictions that can lead to issues with the proceedings.
Oct-Dec 2019 issue
BVI International Arbitration Centre