I. Introduction
Two fundamental principles of international arbitration are: 1. parties’ autonomy, and 2. equality of treatment. It is established that the arbitral tribunal’s authority is derived from the parties’ freedom to determine the procedural and substantive framework of the arbitration process. However, the integrity of the arbitral process/award rest fundamentally on the equality of treatment, which ensures that both parties have “a full opportunity to present their case.” Similarly, New York Convention permits a court to refuse enforcement of an award if a party “… or was otherwise unable to present his case;”
II. Equality – A Delicate Balance Between the Parties’ Rights and Arbitral Procedures Efficiency
While justice and fairness are the paramount responsibilities of the arbitral tribunal, enforcing national courts have consistently affirmed that tribunals possess broad case management powers including the authority to set time limits for the procedural steps, to ensure that justice is done expeditiously and efficiently.
A tribunal’s refusal to postpone a hearing does not necessarily infringe upon the right to be heard as long as there is a balance between due process and efficiency. As stated by the Singapore High Court, ‘the right of each party to be heard does not mean that the Tribunal must “sacrifice all efficiency in order to accommodate unreasonable procedural demands by a party”
III. Case Study
The court noted that a party which refuses to participate in an arbitration is deemed to have forfeited the opportunity to be heard (art. 25 of the Model Law) and could thus not implement a violation of art. 18 on these grounds. The purpose of art. 18, in the court’s view, was rather to protect a party from egregious and injudicious conduct by an arbitral tribunal, and it was not intended to protect a party from its own failures or strategic choices.”
IV. Conclusion
In view of Article 18 of the Model Law, indeed arbitrators should give each party the opportunity to present its case. However, arbitrators do have the role to protect such right from abuse. As said in Philippe Pinsolle’s paper “Weak Arbitral Tribunal’, a tribunal fearful of the aggressiveness of the parties’ lawyers constitutes a great danger for the effective development of the arbitral proceedings. “In this day and age, arbitration has ceased to be a method for resolving disputes between gentlemen to become a vast industry where it would seem that aggressiveness is a virtue for the lawyer defending the party’s interest.”
I believe the word ‘full’ in Article 18 of the Model Law requires careful interpretation (or revision) to set the fine line between the legitimate use and abuse of the fragile Equality Principal.
About the Author – Ashraf El Motei
Ashraf has recognized expertise in international arbitration. He represented clients in numerous arbitration cases under the rules of the International Chamber of Commerce (ICC), The London Court of International Arbitration (LCIA), Dubai International Financial Centre (DIFC-LCIA), Dubai International Arbitration Centre (DIAC), and Ras Al Khaimah Arbitration Centre.
