Ab(use) of due process: sword vs shield

Abstract

In her 2016 Queen Mary School of International Arbitration—Freshfields Lecture entitled ‘Ab(use) of Due Process: Sword vs Shield’, Professor Lucy Reed described the recent marked increase, in her experience, of complaints based not on abuse of process but rather on alleged violations of due process. Focusing primarily on the history of the UNCITRAL Model Law, the UNCITRAL Rules and the New York Convention, the author addresses the questions of why and how due process came to be transplanted into arbitration, and the resulting distinct boundary between ‘pure’ procedural complaints and the ‘high-level’ due process violations that threaten enforceability of an award. The thesis of the Lecture is that routine arbitral process should not be conflated with the small subset of procedural decisions that implicate due process, which is the very foundation of the legitimacy of international arbitration. When due process is invoked purely strategically it cheapens, if not threatens, this foundational principle. A tribunal facing such a strategy should step up to its roles as both the manager of routine process and, more importantly, the guardian of due process.