Addressing the Challenges of Due Process and Ethical Disparities in International Arbitration: The Need for Reform
| Pages | 25-46 |
| Date | 01 April 2025 |
| Published date | 01 April 2025 |
| Author | Alfie Dove |
Addressing the Challenges of Due Process
25
Cambridge Law Review
(2025) Vol 10, Issue 1, 25–46
Addressing the Challenges of Due Process and Eth-
ical Disparities in International Arbitration: The
Need for Reform
ALFIE DOVE
ABSTRACT
This article critically examines the challenges facing international arbitration, with a particular
focus on the lack of a common understanding of due process and ethical standards. Interna-
tional arbitration has long been plagued by issues such as high costs, unpredictability, and the
inability to appeal, but recent concerns about due process and ethics suggest a deeper prob-
lem. Due process and ethics are fundamental to the integrity of arbitration and , without
proper reform, these issues threaten to undermine the system’s credibility. This article begins
by defining due process and ethics, followed by a detailed exploration of the problematic
concept of ‘due process paranoia’. The author’s analysis is structured around three key argu-
ments: first, that differing interpretations of due process across jurisdictions lead to its use or
misuse as a ‘sword’ rather than as a protective shield; secondly, that the unequal ethical obli-
gations imposed on counsel by different legal systems create ambiguity and potential ethical
conflicts, such as ‘double deontology’ and ‘ inequality of arms’; and thirdly, that adopting
clearer terminology for due process rights and establishing a univers al International Code of
Ethics would enhance predictability and fairness in international arbitration. By addressing
these gaps, international arbitration could, in the author’s view, avoid further erosion of its
legitimacy and continue to thrive. Ultimately, this article suggests that, without harmonising
these core principles, international arbitration risks being displaced by alternatives, leaving its
future uncertain.
Keywords: due process, ethics, arbitration, international arbitration, legal reform
I. INTRODUCTION
International arbitration is growing both in its importance and usage.
1
Proponents argue that
several key advantages characterise international arbitration: it promises flexibility and
LLB, LLM (University of Warwick). I must express my gratitude to VelimirŽ ivković for comments on an earlier draft.
All views expressed are the author’s own.
1
See for example Gary B Born,
International Commercial Arbitration
(3rd edn, Klu wer Law International 2021) 7;
Derick H Lindquist and Ylli Dautaj, ‘AI in International Arbitration: Need for the Human Touch’ (2021) 2021 Journal
of Dispute Resolution 39, 43.
26
Cambridge Law Review (2025) Vol 10, Issue 1
neutrality,
2
as well as the speedy resolutions of international disputes.
3
And as international
trade (such as cross-border contracts, maritime disputes, and construction and infrastructure
projects) and foreign investment continue to expand, so too does the reliance on international
arbitration to ensure a fair and effective resolution between parties from diverse backgrounds.
However, the same diversity that gives international arbitration its strength simultaneously
makes us question its true effectiveness. This is because, despite some of the more common
challenges that threaten to undermine arbitration, such as issues of cost,
4
issues relating to the
unpredictability of the process, and the lack of an ability to appeal,
5
there are inconsistencies
in the interpretation of the concept of due process and disparities in ethical obligations. Such
fragmentation not only raises concerns about the coherence of international arbitration but
also reflects the shift from a ‘solidaristic’ field, characterised by shared ethical norms and
expectations,
6
to a ‘polari[s]ed’ field in which varying legal traditions, procedural expectations,
and ethical standards contribute to the current fragmented landscape.
7
This polarisation will
only grow as we welcome more players into the field. The list of drawbacks seems to be end-
less and, in the author’s opinion, these are serious challenges that hamper the effectiveness of
international arbitration. For if abuse of due process objections and ‘level[ling] the playing
field’
8
of ethical considerations are not given thought, then the credibility of international ar-
bitration as an effective dispute resolution mechanism may be undermined. This article ar-
gues that international arbitration must undergo reform to address these concerns. This
article’s main argument consists of three components.
First, in Section II, this article will argue that the varied understandings of due process
among different jurisdictions result in the principle being malleable and capable of being used
as a ‘sword’.
9
Due process (sometimes referred to as ‘natural justice’
10
) typically refers to parties
having notice of the proceedings and having the right to be heard and present evidence in
front of an independent and impartial tribunal that
ideally
treats all parties involved with
2
See for example Tony Dymond and Raeesa Rawal, ‘International Arbitration’ in Anthony Speaight and Matthew
Thorne (eds),
Architect’s Legal Handbook: The Law for Architects
(10th edn, Routledge 2021) 276; Mentor Lecaj and
Granit Curri, ‘Advantages of International Commercial Arbitration in Resolving the Commercial Contests’ (2021) 10
Perspectives of Law and Public Administration 96, 100.
3
Irene Welser and Christian Klausegger, ‘Fast Track Arbitration: Just Fast or Something Difference?’ (2009) Austrian
Arbitration Yearbook 259,272.
4
See for example Weixia Gu, ‘Security for Costs in International Commercial Arbitration’ (2005) 22 Journal of Inter-
national Arbitration 167, 168 ; Jean-Claude Najar, ‘Inside Out: A User’s Perspective on Challenges in International
Arbitration’ (2009) 25 Arbitration International 515, 517–18.
5
See for example Rowan Platt, ‘The Appeal of Appeal Mechanisms in International Arbitration: Fairness over Finality?’
(2013) 30 Journal of International Arbitration 531, 532; Russell Thirgood, ‘Appeals in Arbitration: “To Be or Not to
Be’’’ (2021) 87 Arbitration 42 3, 426; Paul Friedland and Lou kas Mistelis, ‘2015 International Arbitration Survey: Im-
provements and Innovations in International Arbitration’ (White & Case 2015) 8 <https://shop.americanbar.org/Per-
sonifyImages/ProductFiles/262739281/4-And%20Justice%20for%20All.pdf> accessed 2 January 2024.
6
Emmanuel Gaillard, ‘Sociology of International Arbitration’ (2015) 31 Arbitration International 1, 14.
7
ibid 13–14.
8
Edna Sussman and Solomon Ebere, ‘All’s Fair in Love and War–Or Is It? Reflections on Ethical Standards for Counsel
in International Arbitration’ (2011) 22 The American Review of International Arbitration 611, 619; Robert W Wachter,
‘Ethical Standards in International Arbitration: Considering Solutions to Level the Playing Field’ (2011) 24 Georgetown
Journal of Legal Ethics 1143, 1160; Margaret L Moses, ‘Ethics in International Arbitration: Traps for the Unwary’ (2012)
10 Loyola University Chicago International Law Review 73, 73, 80.
9
Lucy Reed, ‘Ab(use) of Due Process: Sword vs Shield’ (2017) 33 Arbitration International 3 61, 364.
10
ibid 366.
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