Due Process Paranoia or Prudence?

Abstract

In recent years, many users of international arbitration have voiced frustration over what has become popularly known as ‘due process paranoia’. The perception has been that arbitrators, due to an exaggerated fear of their awards being challenged, lack decisiveness in certain procedural situations. This, in turn, is perceived to contribute to increased time and cost of international arbitrations.
Overall, the debate on due process paranoia has been healthy, as some arbitrators may well be overly cautious. At the same time, the debate has been almost singularly focused on the perception of users that arbitrators are ‘paranoid’ about due process and should be more firm in order to promote efficiency. Given this focus, it has often failed to question the general applicability and correctness of the diagnosis as such and to appreciate fully the delicate balancing act underlying many procedural decisions. Although important, procedural decision-making is not only about efficiency. It should also be guided by broadly framed considerations of fairness and long-term risk management. Taking such broader considerations into account, what may sometimes be perceived as an overly cautious and inefficient procedural decision in the shortterm, may in fact be the result of an arbitrator acting with prudence, potentially saving more time and cost in the long term.