“In Mitas Virtus”: The Necessary Balance Between the Duty to Protect the Parties’ Procedural Rights and the Need to Promote an Agile and Cost-Effective Arbitration - Chapter 24 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
It is well known that in the conduction of arbitral proceedings, arbitrators sometimes have to deal with complex situations as a result of the tension between two fundamental principles that can work in opposite directions: the duty to fully respect the parties’ essential procedural guarantees (namely the right of defense and the principle of equality) and the need to conduct the arbitration in an agile and cost-effective manner. This is particularly pressing when one or both parties follow a dilatory or aggressive strategy, evidenced by the reach with which they explore and utilize potential procedural options (the sheer amount and extension of written pleadings, the unnecessary depth of discovery requests, the request of questionable or superfluous means of proof, the permanent challenge of the arbitrators’ rulings, etc.).
Without a proper protection of the parties’ procedural rights, the arbitral award risks challenges on due process grounds and/or difficulties at the stage of recognition and enforcement. This undoubtedly exerts a significant degree of pressure on arbitral panels, which can understandably be tempted to tilt towards a passive or “safe” interpretation of their role as case managers of the arbitral proceedings by allowing most of the litigants’ petitions and actions, even if they amount to “guerrilla tactics.”