Cases in which one or more respondents do not appear in the proceedings raise specific procedural challenges for arbitrators.
Early in my arbitrator career, I had a large number of cases in which respondents failed to participate, or had limited participation. The following points are intended to serve as a helpful guide through the proceedings for arbitrators faced with this situation.
Notice of proceedings and communications
As arbitrator, you should be satisfied that the respondent has had proper notice of the proceedings. In administered arbitrations, this is generally undertaken by the claimant and the institution prior to your appointment. However, upon receiving the case file, you should review the details of how and to which addresses the respondent was notified of the proceedings (including contractual notice provisions).
While reliance will often have to be placed on the claimant as to the current contact details of the respondent, the tribunal should review the contractual documents, party correspondence on file, and any other factors which may shed light on the best current contact details. If email addresses are available, they should be used as well, but should not be relied upon alone for the notification of the proceedings. Ultimately, in cases in which notification is challenging and uncertain, this should be resolved between the tribunal and the claimant, ensuring that the claimant understands the risks associated with notification and accepts that the approach taken is sufficient.
For correspondence during the course of the proceedings, refer to the communications provisions of the applicable arbitration rules, which will often set out a hierarchy for effective communications, and how and when communications will be deemed to be received. Procedures for communications and notifications, including contact details, should be clearly set out in Procedural Order No. 1.
Unless it is relatively certain that the respondent is receiving email correspondence, and the claimant has confirmed that correspondence by email alone to the respondent is sufficient, all key correspondence in the proceedings should be sent to the respondent by courier, with registered receipt of delivery. A clear record of deliveries should be maintained. The participating parties should also be directed to comply with the delivery procedures.
In the event that delivery to an address is rejected (whether by refusal to accept or otherwise), inform the participating parties and request whether alternative contact details are available. In cases where there are no alternative contact details for the respondent, you should proceed with the best available contact information and keep a detailed record of delivery attempts.
Timetable and proceedings
When providing deadlines for correspondence or submissions, or providing notification of a CMC or hearing, always take into account delivery time for courier and include a buffer of time to ensure that the respondent has adequate time to receive and consider the correspondence and take any necessary action.
In cases where the respondent is not participating, it is generally prudent to fix the timetable only up to the end of the first round of pleadings, with provision for a statement of claim and statement of defence, and for further submissions to be determined thereafter. In some cases, where there is some uncertainty as to whether the respondent may appear, it may be an option to issue two versions of the procedural timetable, one which takes effect if the respondent does not file a statement of defence, and the other one in the event a statement of defence is filed.
It is advisable to hold a case management conference, even where the applicable rules do not require it and it is clear that the respondent won’t attend, as it is good to provide the respondent with an opportunity to appear. Recordings and/or transcripts of any meetings or hearings should be circulated to the parties thereafter.
In correspondence throughout the proceedings, the tribunal should include language encouraging the respondent to participate. When appropriate, and ideally early on in the proceedings, you should set out the applicable rules and/or legal provisions which address non-participation/default of a party, so that the respondent is aware that the proceedings can continue regardless of its participation.
It is also prudent to fix a short hearing, to provide the respondent with an additional opportunity to appear. This will also give the tribunal an opportunity to ask the claimant any questions it has about the claimant’s case. The tribunal plays a greater role in testing the claimant’s case in cases in the absence of a respondent. While the tribunal is not acting as an advocate, it has a responsibility to test the claimant’s case and evidence such that the tribunal is sufficiently satisfied before reaching any conclusions.
Final award
The final award should include a detailed procedural history, clearly setting out all notifications and communications so that it is clear that the respondent has had adequate notice of, and opportunity to participate in, the proceedings. You may also want to consider including an annex to the award which sets out all of the communications and delivery methods, and delivery dates. You should keep records of these details after the award has been issued, in the event that the information and/or documentation may be requested in due course.
The award should set out the basis upon which the tribunal is satisfied that it has jurisdiction, even in cases where jurisdiction appears obvious. The award should also contain clear language that you have subjected the claimant’s case to sufficient scrutiny.
While the foregoing does not cover every conceivable situation or potential issue in the cases with a non-participating respondent, it should hopefully provide sufficient guidance to help navigate the process. So long as you are guided by key basic principles – ensuring the respondent has had notice and has been provided with an adequate opportunity to participate – it will help to secure the integrity of the proceedings and the ensure the enforceability of the award.