Procedural protections consist of fundamental principles, which include the right to equal treatment and the right to be heard. Procedural protections are also provided through deference to party autonomy and the arbitrator’s procedural discretion.[1]
The UNCITRAL Model Law, national arbitration legislation, judicial decisions and institutional rules provide for equality of treatment in various ways.
Article 18 of the UNCITRAL Model Law provides that the parties shall be treated with equality and each party shall be given a “full” opportunity of presenting his case.[2]
Some institutional rules are drafted differently and provide that the tribunal shall act fairly and impartially and ensure that each party has merely has a “reasonable” opportunity to present its case. For instance, this is the case for the ICC, SIAC, LCIA and CIETAC rules.[3]
Even if both parties are given adequate time to present their case, the principle aims to avoid any disproportionate opportunity to present its case.[4] Hence, it is a requirement of non-discrimination. Parties to arbitral proceedings must comply with the procedural rules and benefit from the same rights.[5] Equal treatment applies from the notice of the arbitration until the conduct of the proceedings and making of the award.[6]
For instance, equal treatment is applicable to the right to counsel and the right to choose counsel of its choice, to the length of time given to the parties to prepare written submissions, to the number of witnesses from which parties can produce testimonies and to the number of pages of memorials provided by the parties.[7]
A reasonable opportunity to present its case gives each party an opportunity to understand and rebut its opponent’s case and to present evidence and argument in support of its case.[8]
From a practical perspective, it is difficult to treat parties in a strictly identical manner. Sometimes, when the parties are in very different positions treating them identically may lead to unfair or unequal results. Hence, all circumstances of the parties claims, evidence and of the proceedings must be analysed.[9]
In sum, neither party should benefit from any preferential treatment or favour due to factors unrelated to the proceedings,[10] and they should be treated with equal fairness.[11]
[1] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2164
[2] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2171
[3] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2172; 2017 ICC Rules Article 22(4); 2014 LCIA Rules Article 14(4)(i); 2015 CIETAC Rules Article 35(1); 2016 SIAC Rules Article 19(1)
[4] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, pp. 2172-2173
[5] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2173
[6] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2173
[7] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2173
[8] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2173
[9] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2174
[10] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2174
[11] G. Born, International Commercial Arbitration, Second Edition 2014, Chapter 15: Procedures in International Arbitration, p. 2175