Due Process As a Limit to Discretion in International Commercial Arbitration

The absence of a coherent body of case law on due process has increasingly motivated recalcitrant parties to use due process as a strategic tool, thereby putting at risk the prospect of obtaining an enforceable award in expeditious proceedings. Countering this inherent danger, here for the first time is a comprehensive study on due process as a limit to arbitral discretion, showing how due process applies in practice in key jurisdictions around the world.

Based on country reports prepared by leading arbitration practitioners and academics, the book explores how courts in major arbitration jurisdictions apply due process guarantees when performing their post-award review. The contributors, driven by an interest in exploring the interplay between due process and efficiency, focus on those due process guarantees that set limits to arbitral discretion. Matters covered include the following:

• the right to be heard and how it may be affected by submission deadlines, evidentiary offers by the opposing party, and directions to the parties as to which aspects require further pleading;
• the right to be treated equally and its interplay with the duty to give each party full opportunity to present its case and to comment on submissions and evidence filed by the other party;
• the duty to effect proper notice, including delivery and language issues;
• the independence and impartiality of arbitrators with a focus on when an arbitrator’s conduct can become the basis for a successful challenge; and
• courts’ standards of deference when examining issues arising at the post-award stage.

An introductory general report thoroughly analyses the normative basis of due process and its interplay with party autonomy, as well as applicable standards of review and commonalities among manifestations of due process across jurisdictions.

A signal contribution to the debate regarding the so-called due process paranoia affecting arbitral tribunals – a topic relevant in every single arbitration proceeding – this book provides practical guidelines on how to maintain the balance between due process and efficiency and how to apply due process and counteract its misuse in arbitration proceedings. It will be welcomed by counsel, arbitrators, and judges from all countries, as well as by academics and researchers concerned with international commercial arbitration.

Franco Ferrari joined NYU as Professor of Law on a full-time basis in September 2010. At NYU, Professor Ferrari also acts as the Executive Director of NYU s Center for Transnational Litigation, Arbitration, and Commercial Law. Before joining NYU, Professor Ferrari was Chaired Professor of International Law at Verona University School of Law (2002 2016), Chaired Professor of Comparative Law at Bologna University School of Law (1998 2002) and Tilburg University School of Law (1995 1998). After serving as Member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he served as Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch (2000 2002), with responsibility for numerous projects, including the preparation of the UNCITRAL Digest on Applications of the UN Sales Convention (2004 edition). Professor Ferrari, a prolific author specialized in international commercial law, conflict of laws, comparative law and international arbitration, is a member of the editorial board of various peer-reviewed European law journals (Internationales Handelsrecht, European Review of Private Law), a co-editor of Elgar Monographs in Private International Law and the former General-Editor of the European International Arbitration Review (2017 2019). Professor Ferrari also acts as arbitrator in both international commercial arbitrations and investment arbitrations. Friedrich Rosenfeld is Partner at HANEFELD, an arbitration boutique based in Hamburg and Paris. He has represented companies and states in arbitration proceedings with a focus on construction, post-M&A, commercial and investment disputes. In addition, he has been an arbitrator in cases involving a range of applicable substantive laws and seats (including Austria, Denmark, England, Germany, Greece, Israel, Switzerland and the United States). Friedrich is also Global Adjunct Professor at New York University (Paris program), Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg. In spring 2020, he was invited to teach Arbitration as Global Hauser Professor from Practice at New York University in Paris. Prior to joining his current firm, Friedrich worked as Consultant for the United Nations Assistance to the Khmer Rouge Trials in Cambodia. Friedrich studied at Bucerius Law School in Hamburg and Columbia Law School in New York. He was a fellow of the German National Academic Foundation and holds a PhD in International Law (summa cum laude). Dietmar Czernich is an attorney and Adjunct Professor based in Vienna, Austria. He studied law and political sciences at the Universities of Tuebingen, Germany and Innsbruck, Austria. After graduating from NYU Law School (LLM class of 1994), he was a visiting scholar at the Max Planck Institute for International Comparative and Private Law in Hamburg, Germany. He published many scholarly books and writings in the fields of private international law, international litigation and international commercial arbitration. His commentary on the European Brussels Ia Regulation on jurisdiction as well as his handbook on Commercial Arbitration have become standard works in their fields. At the University of Oxford, he was awarded a Diploma in International Arbitration. After joining private practice, he sits frequently as an arbitrator in both ad hoc and institutional arbitrations relating to post M&A disputes, corporate law and general contract law.