Uniform title information
a. Meaning of “unable to present his case”
Nature of the work :
ToC
Expression of :
|
Available documents with this uniform title (6)
V(1) / V(1)(b) / 2. ANALYSIS (V(1)(b)) / B. Evidence that a party was “unable to present his case” / a. Meaning of “unable to present his case” / §31
31. This second protection in article V(1)(b) means that parties should have been provided with an opportunity to present their case;48 that they should have had an opportunity to be heard regarding their claims, evidence and defences.
48. See, FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION, E. Gaillard, J. Savage eds., 1999, para. 1698.
See in context V(1) / V(1)(b) / 2. ANALYSIS (V(1)(b)) / B. Evidence that a party was “unable to present his case” / a. Meaning of “unable to present his case” / §32
32. Some courts in the United States have interpreted this provision to mean that parties must have an opportunity to be heard at a “meaningful time and in a meaningful manner”.49 As stated by the Swiss Federal Tribunal, “[b]y its general wording, this provision covers any restriction, whatever its nature, of the parties’ rights. It appears to contemplate, amongst others, the violation of the right to be heard”.50
49. Iran Aircraft Indus. v. Avco Corp., Courts of Appeals, Second Circuit, United States of America, 24 November 1992, 92-7217, 980 F.2d 141, 146 (2d Cir. 1992); Karaha Bodas Co. (Cayman Islands) v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Indonesia), Court of Appeals, Fifth Circuit, United States of America, 23 March 2004, 02-20042, 03-20602.
50. Chrome Resources S.A. v. Léopold Lazarus Ltd., Federal Tribunal, Switzerland, 8 February 1978, XI Y. B. COM. ARB. 538 (1986).
See in context V(1) / V(1)(b) / 2. ANALYSIS (V(1)(b)) / B. Evidence that a party was “unable to present his case” / a. Meaning of “unable to present his case” / §33
33. In practice, courts have refused recognition and enforcement of awards on the grounds in article V(1)(b) where the process has been particularly egregious or where the arbitration radically strayed from standards of due process, such as when a party was prevented from submitting crucial evidence51 or from receiving or commenting on evidence from an opposing party.52 For example, a court found a breach of due process when an arbitral tribunal declared inadmissible the submission filed by a party after the closing of the proceedings while relying on a subsequent submission filed thereafter by the other party.53 Similarly, a Dutch court found a breach of due process when a party was denied the right to comment on or respond to evidence and arguments from the opposing party.54
51. Iran Aircraft Indus v. Avco Corp., Court of Appeals, Second Circuit, United States of America, 24 November 1992, 92-7217 (2nd Cir. 1992).
52. M. Adeossi v. Sonapra, Court of First Instance, Cotonou, Benin, 25 January 1994, Ordonnance No. 19/94; Landgericht [LG]Regional Court, Bremen, Germany, 20 January 1983, 12-O-184/1981.
53. M. Adeossi v. Sonapra, Court of First Instance, Cotonou, Benin, 25 January 1994, Ordonnance No. 19/94.
54. Rice Trading (Guyana) Ltd. v. Nidera Handelscompagnie BV, Court of Appeal, The Hague, Netherlands, 28 April 1998, XXIII Y. B. COM. ARB. 731 (1998).
See in context V(1) / V(1)(b) / 2. ANALYSIS (V(1)(b)) / B. Evidence that a party was “unable to present his case” / a. Meaning of “unable to present his case” / §34
34. Exceptional circumstances may also lead to a finding of a breach of due process. For example, an Italian court found that a month had not been enough time for a party to prepare and present its case in light of the fact that there had been a recent earthquake.55
55. Bauer & Grobmann OHG v. Fratelli Cerrone Alfredo e Raffaele, Court of Appeal, Naples, Salerno Section, Italy, 18 May 1982, X Y. B. COM. ARB, (1985), at 461.
See in context V(1) / V(1)(b) / 2. ANALYSIS (V(1)(b)) / B. Evidence that a party was “unable to present his case” / a. Meaning of “unable to present his case” / §35
35. The onus is on the parties to present their cases and there will not be a breach where a party could have presented its case but did not.56 Courts have usually considered that there is no breach of due process where a party has impeded its own ability to present its case, such as by failing to demand an extension of time or by otherwise failing to participate in the arbitral proceedings.57
56. First State Ins. Co. (US) v. Banco de Seguros Del Estado (Uruguay), Court of Appeals, First Circuit, United States of America, 27 June 2001, 00-2454 (254 F.3d 354); Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Commercial, District Court, Southern District of New York, United States of America, 24 August 1990, 90 Civ. 0720 (KC); D v. Franz J, Supreme Court, Austria, 1 September 2010, 3 Ob 122/10b. See also, FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION, E. Gaillard and J. Savage eds., 1999, para. 1698.
57. Dutch Seller v. German (F.R.) Buyer, Regional Court, Zweibrucken, Germany, 11 January 1978; Bobbie Brooks Inc. v. Lanificio Walter Bucci s.a.s., Court of Appeal, Florence, Italy, 8 October 1977, IV Y. B. COM. ARB. 289 (1979).
See in context V(1) / V(1)(b) / 2. ANALYSIS (V(1)(b)) / B. Evidence that a party was “unable to present his case” / a. Meaning of “unable to present his case” / §36
36. In the same vein, most courts have been strict in refusing to find breaches where parties did not remedy their own defaults. The United States Court of Appeals for the First Circuit rejected an alleged breach of due process when a party claimed that its counsel was not representing it meaningfully. The Court reasoned that it was the fault of its own representatives.58 Another United States Court held that there was no breach of due process when a party complained about a tribunal-appointed expert because that party never objected to the expert or requested a copy of the report.59 An Italian court held that article V(1)(b) “concerns the impossibility rather than the difficulty of presenting one’s case.”60 Similarly, a Swiss court found that a party had ample opportunity to present its case when its counsel resigned and it failed to appoint new counsel. The Court reasoned that the party had the time to appoint new counsel but failed to do so.61
58. First State Ins. Co. (US) v. Banco de Seguros Del Estado (Uruguay), Court of Appeals, First Circuit, United States of America, 27 June 2001, 00-2454 (254 F.3d 354).
59. Standard Elec. Corp. v. Bridas Sociedad Anonima Petrolera, Indus. Y Commercial, District Court, Southern District of New York, United States of America, 24 August 1990, 90 Civ. 0720 (KC).
60. De Maio Giuseppe e Fratelli snc v. Interskins Ltd., Court of Cassation, Italy, 21 January 2000, 671, XXVII Y. B. COM. ARB., 492 (2002).
61. X v. Y, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino, Switzerland, 7 August 1995, 14.9400021.
See in context