Parties frequently invoke due process violations in order to resist recognition and enforcement of foreign arbitral awards under the New York Convention. While the New York Convention does not expressly use the term “due process,” various grounds for refusal of recognition and enforcement can be seen as a manifestation of due process protections. Most importantly, Article V (1) lit. b of the New York Convention allows for refusal of recognition and enforcement if a party was unable to present its case. Article V (1) lit. d of the New York Convention offers a ground for refusal of recognition and enforcement if the proceedings were not in line with the parties’ agreement or, failing such agreement, the law of the seat. And under Article V (2) lit. b of the New York Convention, a court can refuse to recognize and enforce an arbitral award if enforcement would be contrary to the public policy of the State where recognition and enforcement are sought.
Among other fields of application, these due process limitations are particularly important for the taking of evidence. In this respect, new challenges have arisen in the wake of the COVID-19 pandemic. Arbitrators, parties, and arbitral institutions have been confronted with intricate questions as to whether and how the taking of evidence can occur online, without any physical meeting. Are arbitrators entitled to schedule a video hearing, even against the will of one of the parties? How do due process guarantees limit the conduct of such hearings? This panel will address these questions. After a discussion of the applicable normative framework, panelists will discuss best practices with respect to the taking of evidence in online arbitrations.
• Franco Ferrari, NYU Law
• Rafael Alves, FGV / LO Baptista, São Paulo
• Yasmine Lahlou, Chaffetz Lindsey, New York
• Friedrich Rosenfeld, NYU Law, Hanefeld, Hamburg