The Principle of Equal Treatment in International Arbitration

30 Pages Posted: 23 May 2019

See all articles by Prof Maxi Scherer

Prof Maxi Scherer

Queen Mary, University of London, Centre for Commercial Law Studies

Dharshini Prasad

Independent

Dina Prokic

Independent

Date Written: September 3, 2018

Abstract

The principle of equal treatment is fundamental to the idea of justice, in international arbitration as in any adjudicative system. Arbitration conventions, rules and national laws unanimously impose a requirement, either express or implied, that the parties be treated equally throughout the arbitral process. Yet, the contours of procedural equality remain elusive. Defining procedural equality is indeed arduous, in no small part because it is inherently fact sensitive. Nevertheless, such definitional challenges should not preclude a more sustained analysis on the role that equal treatment plays in international arbitration, nor should it dissuade attempts to discern a methodology for its analysis. This paper offers a contribution to the discourse on procedural equality in international arbitration by explaining its interaction with other basic norms that govern the arbitral process and proposing a framework to assess equality claims. Part I of the chapter outlines the origins of the equal treatment principle in international arbitration. Part II identifies the key aspects of the arbitral process where procedural equality concerns are likely to arise. Part III conceptualizes the equal treatment principle as a core adjudicative ideal that, together with the right to an impartial and independent tribunal and the right to be heard, provides the foundation for legitimacy of the arbitral process. Part III also draws on jurisprudence on equal treatment protections in international human rights law to propose a methodology to assess procedural equal treatment claims in international arbitration. Finally, Part IV provides some concluding observations.

Keywords: international law, equal treatment, arbitration, procedural equality, adjudication, human rights

Suggested Citation

Scherer, Maxi and Prasad, Dharshini and Prokic, Dina, The Principle of Equal Treatment in International Arbitration (September 3, 2018). Available at SSRN: https://ssrn.com/abstract=3377237 or http://dx.doi.org/10.2139/ssrn.3377237

Maxi Scherer (Contact Author)

Queen Mary, University of London, Centre for Commercial Law Studies ( email )

67-69 Lincoln's Inn Fields
London, WC2A 3JB
United Kingdom

Dharshini Prasad

Independent

No Address Available
United States

Dina Prokic

Independent

No Address Available
United States

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