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Due Process and Issues Which Prey on the Minds of Arbitrators and Clients Alike

Paper number

Richard Wilmot-Smith QC

March 2020

A paper presented to the Society of Construction Law at a meeting in London on 1st October 2019

The paper considers some of the aspects of due process in arbitration. In considering the issue of delay, the author looks in detail at one case, Micula v Romania, which demonstrates the extent of delays in international arbitration by both the arbitral process and state intervention and illustrates how care must be taken to ensure that due process is properly followed. The paper goes on to look at the effect of a lack of due process in enforcement. The author examines due process arguments deployed in court in a variety of cases and questions what arbitrators can do to ensure that there is due process without defensive decision-making. He considers one of the challenges of modern construction arbitration, that of document proliferation, and makes some practical suggestions about how arbitrators can avoid straying from due process.

The author: Richard Wilmot-Smith QC is a barrister practising at 39 Essex Chambers

Text: 18 pages