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Freshfields Arbitration Lecture 2016

On 27 October 2016, the international arbitration community congregated at Freshfields Bruckhaus Deringer’s London offices to hear Professor Lucy Reed deliver the 31st Freshfields and Queen Mary University lecture on the topic of “Ab(use) of due process: sword vs shield”.

Professor Reed, who is the Director of the Centre for International Law at the National University of Singapore and the former global co-head of the Freshfields International Arbitration Group, drew on numerous examples from her long and distinguished career acting as counsel and an arbitrator (including her many hours in the “war rooms” at Freshfields) to present a humorous and thought-provoking examination of the use and abuse of due process in international arbitration.

Professor Reed described a growing trend in international arbitration for the “routine, often incessant and shrill, invocation of multiple procedural complaints under the banner of due process” as a “brazen strategy” to seek to pressurise arbitral tribunals.

The thesis of her lecture was that arbitral tribunals should not confuse routine procedural complaints (however stridently or repeatedly articulated) with genuine “due process” violations which have the potential to undermine the legitimacy of the arbitral process.

Defining due process as a person’s right “not to be deprived of their property or other rights without the fair opportunity to defend themselves before neutral judges”, Professor Reed outlined the historical evolution of the concept of due process in international arbitration, before providing some practical illustrations of the boundaries and grey areas between procedural complaints and due process violations.

She concluded the lecture by urging that arbitrators speak out when parties present unreasonable procedural objections under the guise of “due process violation”.

Due process, in Professor Reed’s words, “rightly serves as the shield against fundamental procedural unfairness” and for a party “cynically, to appropriate and use those principles as a sword is to undermine and cheapen due process in international arbitration”. As she concluded: the three musketeers are not welcome in arbitral hearing rooms.