Due are also enforceable where the person entitled to

Due process is the legal requirement thatthe state must respect all legal rights that are owed to a person. Due processbalances the power of law of the land and protects the individual person fromit. The requirement of due process as a constitutional guarantee is somethingthat has been developing in Anglo-Saxon and continental laws as a fundamentalright of the citizen. In arbitral proceedings, the basic rule consists ofsubmitting to the principles of equality, fair hearing and the right ofcontradiction. Due process has also been frequentlyinterpreted as limiting laws and legal proceedings (see substantive dueprocess) so that judges, instead of legislators, may define and guaranteefundamental fairness, justice, and liberty. That interpretation has provencontroversial. Analogous to the concepts of natural justice, and proceduraljustice used in various other jurisdictions, the interpretation of due processis sometimes expressed as a command that the government must not be unfair tothe people or abuse them physically.

Due process in international arbitrationrequires the arbitrators to conduct the proceedings and, consequently, drafttheir awards in such a way that their awards are enforceable. And this meansthat they should make their best efforts to ensure that their awards are notsubject to annulment in the place of the arbitration and that they are alsoenforceable where the person entitled to enforce them wishes to do so.1  Pursuant to Article V(1)(b) of the New YorkConvention, recognition and enforcement of foreign awards may be refused when”the parties against whom the award is invoked was not given proper notice ofthe appointment of the arbitrator or of the arbitration proceedings or wasotherwise unable to present his case.” The UNCITRAL Model Law2,after which many local arbitration statutes are modelled, carries the sameprotection in Articles 34(2)(a)(ii) and 36(1)(a)(ii). This provision sanctionsviolations of what is called “due process” in common law jurisdictions, and “le principe de la contradiction, du respectdes droits de la défense et d’égalité des parties” in civil law systems. Theseprovisions serve a laudable goal – they enshrine the importance of due processand ensure a minimum standard will be observed; failing which, an award willnot have the force of law.3Given that the standard for review ofarbitration awards is very narrow and arbitration awards cannot be appealed onthe merits, efforts to ensure a credible decision (distributive justice) ismade are of critical importance. Even though arbitration is distinct fromlitigation, parties will want well-reasoned decisions that are enforceable.

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Indeed, enforceability of an award is of paramount importance to the parties,particularly when emergency arbitrators are utilized.The structure and function of arbitrationinstitutions plays a critical role in satisfying (albeit imperfectly) the needsof parties to balance the party driven flexibility and autonomy that are thehallmarks of arbitration with due process. The underlying psychological aim ofdue process—to promote a sense of fairness and justice—is achievable throughthe mechanisms of procedural justice.The U.S. courts have clarified the dueprocess requirement in arbitration in a way that could perfectly reflect the dueprocess requirements in the arbitral community.

They have made it clear that: “anarbitral award should be denied or vacated if the party challenging the awardproves that he was not given a meaningful opportunity to be hear…. It is clearthat an arbitrator must provide a fundamentally fair hearing. A fundamentallyfair hearing is one that meets ‘theminimal requirements of fairness’—adequate notice, a hearing on theevidence, and an impartial decision by the arbitrator … Nevertheless, partiesthat have chosen to remedy their disputes through arbitration rather thanlitigation should not expect the same procedures they would find in thejudicial arena … Arbitrators enjoy wide latitude in conducting an arbitrationhearing. Arbitration proceedings are not constrained by formal rules ofprocedure or evidence; the arbitrator’s rule is to resolve the disputes, basedon his consideration of all relevant evidence, once the parties to the disputehave had a full opportunity to present their cases.”Unfortunately, due process protections havebeen subject to increasing abuse by losing parties.4Professor Reed believes that what was meant to be a shield is now being used asa sword.

5This may in part be a consequence of a phenomenon called ‘due process paranoia’.Parties may repeatedly capitalize on this by seeking to adduce additionalevidence or to make further submissions not originally catered for in theprocedural timetable. Post-award, a dissatisfied party may nit-pick forinstances where the tribunal appears to have declined their request to presentfurther arguments, adduce more evidence, or be given more time to respond.These instances of abuse add to the time and cost of the arbitral process, bothpre- and post-award.

As a result, scholars have started to suggest means totackle the paranoia.61 https://www.arbitratio.com/single-post/2016/11/22/THE-SWORD-OF-DUE-PROCESS-IN-ARBITRATION2 UNCITRAL Model Law on International Commercial Arbitration (ModelLaw). The Model Law was first published in 1985, and was updated and amended in2006.

3 Prof Bernardo Cremades, 2016 CIArb Alexander Lecture, ‘The Use andAbuse of Due Process in International Arbitration’, 17 November 2016.4 Prof Lucy Reed, 2016 Freshfields Arbitration Lecture, ‘Ab(use) ofdue process: sword vs shield’, 27 October 2016; Prof Bernardo Cremades, 2016CIArb Alexander Lecture, ‘The Use and Abuse of Due Process in InternationalArbitration’, 17 November 2016. 5 Prof Lucy Reed, 2016 Freshfields Arbitration Lecture, ‘Ab(use) ofdue process: sword vs shield’, 27 October 2016.6 KP Berger and JO Jensen, ‘Due process paranoia and the proceduraljudgment rule: a safe harbour for procedural management decisions byinternational arbitrators’ (2016) Arb Int. 415–435.Due process is the legal requirement thatthe state must respect all legal rights that are owed to a person. Due processbalances the power of law of the land and protects the individual person fromit. The requirement of due process as a constitutional guarantee is somethingthat has been developing in Anglo-Saxon and continental laws as a fundamentalright of the citizen.

In arbitral proceedings, the basic rule consists ofsubmitting to the principles of equality, fair hearing and the right ofcontradiction.Due process has also been frequentlyinterpreted as limiting laws and legal proceedings (see substantive dueprocess) so that judges, instead of legislators, may define and guaranteefundamental fairness, justice, and liberty. That interpretation has provencontroversial. Analogous to the concepts of natural justice, and proceduraljustice used in various other jurisdictions, the interpretation of due processis sometimes expressed as a command that the government must not be unfair tothe people or abuse them physically.

Due process in international arbitrationrequires the arbitrators to conduct the proceedings and, consequently, drafttheir awards in such a way that their awards are enforceable. And this meansthat they should make their best efforts to ensure that their awards are notsubject to annulment in the place of the arbitration and that they are alsoenforceable where the person entitled to enforce them wishes to do so.1  Pursuant to Article V(1)(b) of the New YorkConvention, recognition and enforcement of foreign awards may be refused when”the parties against whom the award is invoked was not given proper notice ofthe appointment of the arbitrator or of the arbitration proceedings or wasotherwise unable to present his case.” The UNCITRAL Model Law2,after which many local arbitration statutes are modelled, carries the sameprotection in Articles 34(2)(a)(ii) and 36(1)(a)(ii). This provision sanctionsviolations of what is called “due process” in common law jurisdictions, and “le principe de la contradiction, du respectdes droits de la défense et d’égalité des parties” in civil law systems.

Theseprovisions serve a laudable goal – they enshrine the importance of due processand ensure a minimum standard will be observed; failing which, an award willnot have the force of law.3Given that the standard for review ofarbitration awards is very narrow and arbitration awards cannot be appealed onthe merits, efforts to ensure a credible decision (distributive justice) ismade are of critical importance. Even though arbitration is distinct fromlitigation, parties will want well-reasoned decisions that are enforceable.Indeed, enforceability of an award is of paramount importance to the parties,particularly when emergency arbitrators are utilized.The structure and function of arbitrationinstitutions plays a critical role in satisfying (albeit imperfectly) the needsof parties to balance the party driven flexibility and autonomy that are thehallmarks of arbitration with due process. The underlying psychological aim ofdue process—to promote a sense of fairness and justice—is achievable throughthe mechanisms of procedural justice.The U.

S. courts have clarified the dueprocess requirement in arbitration in a way that could perfectly reflect the dueprocess requirements in the arbitral community. They have made it clear that: “anarbitral award should be denied or vacated if the party challenging the awardproves that he was not given a meaningful opportunity to be hear….

It is clearthat an arbitrator must provide a fundamentally fair hearing. A fundamentallyfair hearing is one that meets ‘theminimal requirements of fairness’—adequate notice, a hearing on theevidence, and an impartial decision by the arbitrator … Nevertheless, partiesthat have chosen to remedy their disputes through arbitration rather thanlitigation should not expect the same procedures they would find in thejudicial arena … Arbitrators enjoy wide latitude in conducting an arbitrationhearing. Arbitration proceedings are not constrained by formal rules ofprocedure or evidence; the arbitrator’s rule is to resolve the disputes, basedon his consideration of all relevant evidence, once the parties to the disputehave had a full opportunity to present their cases.”Unfortunately, due process protections havebeen subject to increasing abuse by losing parties.4Professor Reed believes that what was meant to be a shield is now being used asa sword.

5This may in part be a consequence of a phenomenon called ‘due process paranoia’.Parties may repeatedly capitalize on this by seeking to adduce additionalevidence or to make further submissions not originally catered for in theprocedural timetable. Post-award, a dissatisfied party may nit-pick forinstances where the tribunal appears to have declined their request to presentfurther arguments, adduce more evidence, or be given more time to respond.These instances of abuse add to the time and cost of the arbitral process, bothpre- and post-award. As a result, scholars have started to suggest means totackle the paranoia.61 https://www.

arbitratio.com/single-post/2016/11/22/THE-SWORD-OF-DUE-PROCESS-IN-ARBITRATION2 UNCITRAL Model Law on International Commercial Arbitration (ModelLaw). The Model Law was first published in 1985, and was updated and amended in2006. 3 Prof Bernardo Cremades, 2016 CIArb Alexander Lecture, ‘The Use andAbuse of Due Process in International Arbitration’, 17 November 2016.4 Prof Lucy Reed, 2016 Freshfields Arbitration Lecture, ‘Ab(use) ofdue process: sword vs shield’, 27 October 2016; Prof Bernardo Cremades, 2016CIArb Alexander Lecture, ‘The Use and Abuse of Due Process in InternationalArbitration’, 17 November 2016. 5 Prof Lucy Reed, 2016 Freshfields Arbitration Lecture, ‘Ab(use) ofdue process: sword vs shield’, 27 October 2016.6 KP Berger and JO Jensen, ‘Due process paranoia and the proceduraljudgment rule: a safe harbour for procedural management decisions byinternational arbitrators’ (2016) Arb Int.

415–435.