Equal treatment and due process are perhaps two pillars of every arbitration proceeding. While the utility of some procedural features of arbitration (like document production) have been always discussed by practitioners and are still matters under question, equal treatment and due process have been always beyond any doubt that should be regarded in every and all situations.
But what is indeed the equal treatment?
Is that as simple as written in arbitration books that parties should have equal opportunities for submitting their cases and/or there should be no ex parte communications between one party and the tribunal, etc.? Article 18 of Iran Law on International Commercial Arbitration, under the title of “Equal treatment of parties” provides that the parties shall be treated with equality, and each party shall be given a full opportunity to present his claim or defense and submit his evidence.
The article is fairly good, but is this all we expect out of equal treatment? If the answer is yes, then it is easy both for the tribunal to respect it and for the parties to, in case of non-respect, pursue and prove that such a principle is violated. (Let’s just imagine the situation that one party is enjoying a more favorable opportunity for sending its written submissions or when the tribunal addresses one party without copying the other party in the email. In such situations, nothing is easier than to prove that equal treatment is ruined.)
I, however, believe that the story of equal treatment can be much more complicated.
One of my colleagues was recently involved in an ad-hoc arbitration under the Rules of UNCITRAL that the sole arbitrator used to call my colleague’s name with the title of Mr and the other party’s counsel name with the title of Dr, while they both had a PhD degree. It is true that the titles are not important at all, but when it comes to the matter of equal treatment, every tiny act might violate the principle and therefore, place the parties in unequal situations.
Also, according to my colleague, in the hearing session and when the counsels were presetting their cases, the sole arbitrator had clearly different behaviors with each side. That is when my colleague was addressing the tribunal, the sole arbitrator was not looking in his eyes, but was persistently seeking for a piece of paper in his bunch of folders, and also, face talking with his assistant who was also looking for the same document. In contrast, when the other party’s counsel started to talk, the sole arbitrator stopped seeking and concentrated on the pleading, with eye contact and sometimes, head nodding.
What matters here is that none of these unequal behaviors, i.e. the title that the arbitrator might give to each side or the eye contact that he might have with one party, are either considered as a violation of equal treatment or a basis for setting aside of the award. That is, one cannot set aside an arbitration award on the basis that the sole arbitrator did not call his/her academic title or did not have attractive eye contact, while the other party was enjoying all these benefits.
My colleague decided not to touch these matters, as he was worried about the consequences that it might have on the sole arbitrator’s mind. I, however, in the same case, would do my best to find a way to delicately raise the issue and pose it with the sole arbitrator. I believe raising the matter, at least gives the opportunity to the arbitrator to correct him/her (if all these are unintentional), plus it leaves a record in the case for possible further references.