Due process paranoia and the procedural judgment rule: a safe harbor for procedural management decisions by international arbitrators

Abstract

Faced with a party’s procedural request, international arbitrators sometimes need to decide a delicate question: is this a legitimate exercise of the party’s procedural rights, or an unreasonable move, leading to an unnecessary delay of the proceedings? When answering this question, the fear that the eventual award might be challenged due to a violation of the parties’ due process rights lingers as the proverbial Sword of Damocles. Often, such “due process paranoia” will lead the arbitrator to grant unreasonable procedural requests, thus prolonging the proceedings unnecessarily. This neither benefits the parties nor the attractiveness of international arbitration as a dispute resolution mechanism. The present contribution attempts to ameliorate this situation. It reviews the state courts’ approach to dealing with arbitrators’ exercise of their procedural management discretion to reveal that “due process paranoia” is unfounded. Rather, the review brings to light what may be termed the “Procedural Judgment Rule”, a safe harbor for arbitrators’ exercise of their procedural discretion. The contribution encourages international arbitrators to embrace this discretion by conducting proactive proceedings. It offers methods to efficiently deal with delicate procedural management situations in order to avoid “due process paranoia” altogether.