Respondents’ Non-Participation in International Arbitration: A Practical Analysis for Claimants and Tribunals – Vol. 30 No. 4

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Authors: Claudia T. Salomon* and Florian Loibl**

Published: September 2020

Commercial Disputes
Arbitral Process
Failure to Arbitrate; Default
Agreement to Arbitrate
Operation and Effects
Authority of the Arbitral Tribunal
Rights Pertaining to the Conduct of Proceedings
Basic Standards of Due Process

Description: This article explores practical ways of addressing respondents’ non-participation in international arbitration. Neither institutional rules nor national arbitration laws generally allow for a default award that would be similar to a default judgment in court. Yet an arbitration may proceed without the respondent’s participation, and tribunals are entitled to render awards in the respondent’s absence. In analyzing the myriad issues that claimants and tribunals face in this situation, this article focuses on the tension that results from proceeding with the arbitration in the respondent’s absence. On the one hand, tribunals must guarantee the due process rights of non-participating respondents—critical for enforcement of any award under the New York Convention; on the other hand, tribunals need to move an arbitration forward even in the case of non-participation to give claimants the benefit of the arbitration agreement. This article seeks to guide claimants and tribunals through the different stages of the arbitration process, while balancing these conflicting interests.

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*Claudia T. Salomon is a Partner and global Co-Chair of Latham & Watkins’ International Arbitration Practice.
**Florian Loibl is an Associate in Latham & Watkins’ International Arbitration Practice.