On 27 October 2016, CIL Director Lucy Reed delivered the 31st Queen Mary University – Freshfields Arbitration Lecture in London, on the topic of “Ab(use) of Due Process: Sword vs Shield”. Professor Reed, who for many years led the Freshfields International Arbitration Group, framed her topic with the example of Donald Trump impugning the US federal judge who is presiding over a case against Trump University, by claiming the Mexican heritage of the judge – who was born and raised in Indiana – is biased because of Trump’s plans to construct a wall at the Mexican border if he is elected President.
Professor Reed described a growing trend in international arbitration for the unreasonable invocation of procedural complaints “under the banner of due process” as a “brazen strategy” to seek to pressurise arbitral tribunals. Her thesis was that arbitral tribunals should not allow parties to conflate routine procedural complaints (however stridently or repeatedly articulated, as Trump has done in interviews) 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 as property or other rights without the opportunity to represent themselves before neutral judges”, Professor Reed outlined the historical evolution of the concept of due process as a shield for legitimacy in international arbitration, before providing some practical illustrations of the strategy of (ab)using due process as a sword to influence the outcome. She focused on the boundaries and grey areas between routine procedural complaints and true due process violations. She concluded by urging arbitrators to confront the strategy, to prevent toleration leading to normalisation.
Due process, in Professor Reed’s words, “is meant to be a shield against procedural unfairness” and for a party to “gleefully use due process as a sword is to cheapen due process”. As she concluded: neither Zorro nor the Three Muskeeters should be welcome in international arbitration hearing rooms.