{"id":288284,"date":"2025-11-18T16:00:00","date_gmt":"2025-11-18T15:00:00","guid":{"rendered":"https:\/\/dailyjus.com\/?p=288284"},"modified":"2025-11-19T15:36:17","modified_gmt":"2025-11-19T14:36:17","slug":"absent-but-not-forgotten-managing-defaulting-parties-in-arbitration","status":"publish","type":"post","link":"https:\/\/dailyjus.com\/index.php\/2025\/11\/18\/absent-but-not-forgotten-managing-defaulting-parties-in-arbitration\/","title":{"rendered":"Absent but Not Forgotten: Managing Defaulting Parties in Arbitration"},"content":{"rendered":"\n

ICC YAAF Event, 9 September 2025<\/strong><\/h1>\n\n\n\n
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THE AUTHOR<\/strong>:
Raoul J. Sievers<\/strong>, Research Assistant at ArbBoutique<\/strong><\/a><\/p>\n\n\n\n

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<\/div>\n\n\n\n

On 9 September 2025, the arbitration community gathered early for an ICC YAAF event held in conjunction with the Berlin Dispute Resolution Days. Moderated by Marie C. Gr\u00fcger <\/strong>(Spangenberg), panelists Inga Witte<\/strong><\/a> <\/strong>(CMS<\/a>) and Ricardo Gomes <\/strong>(Hannes Snellman<\/a>) shared perspectives on how arbitral tribunals and counsel deal with defaulting parties in arbitration.<\/p>\n\n\n\n

<\/div>\n\n\n\n

The Tribunal\u2019s Perspective<\/strong><\/h2>\n\n\n\n

After words of welcome by ICC YAAF representative Dr <\/strong>Ole Jensen<\/strong><\/a> <\/strong>(ArbBoutique<\/a>) and Dr <\/strong>Martin Mengden<\/strong><\/a> <\/strong>of the event\u2019s host Raue<\/a>, the conversation commenced with an introduction by moderator Marie C. Gr\u00fcger. She began by noting that arbitral institutions generally do not collect statistics on defaulting parties. However, Gr\u00fcger added, instances where one party decides not to participate in the proceedings occur more often than one might expect given the consensual basis of an arbitral proceeding. Against this backdrop, the panel set out to discuss the deceptively simple question of what constitutes a \u201cdefaulting party.\u201d Instances of default are multifaceted, encompassing both a complete absence from the outset and a withdrawal at later stages. Gomes described the different types of non-participating parties: those who never respond to a request for arbitration, those who disengage along the way, and the \u201ccliffhangers\u201d who keep everyone guessing but ultimately fail to appear. As Witte added, some parties only make an appearance at the hearing itself.<\/p>\n\n\n\n

The panel then turned to one of the key differences between arbitration and court proceedings. As Gr\u00fcger noted, unlike many state courts (including those in Germany, Switzerland, France, and the UK), arbitral tribunals cannot simply issue a default judgment. Witte stressed that a tribunal must always strike a balance between moving the case forward efficiently and ensuring the absent party has had proper notice and a fair opportunity to be heard. This balance is of particular significance, since a failure to ensure proper notification and respect for the respondent\u2019s right to be heard may expose any award to annulment or refusal of enforcement under Article V(1)(b) of the New York Convention (1958)<\/a> (C. Salomon & F. Loibl, Respondents\u2019 Non-Participation in International Arbitration: A Practical Analysis for Claimants and Tribunals<\/em>, 30 Am. Rev. Int\u2019l Arb. 441 (2019), at p. 447<\/a>). Gomes pointed to the lex arbitri<\/em> as providing guidance on the necessary steps to be taken to safeguard the defaulting party\u2019s right to be heard.<\/p>\n\n\n\n

The speakers also highlighted the tribunal\u2019s role in actively testing the claimant\u2019s case to ensure the enforceability of the award. Both Witte and Gomes emphasized the fundamental role of oral hearings (even brief or remote hearings) for arbitrators to probe the case. This again goes back to the fact that, unlike in many domestic litigation systems, arbitral tribunals cannot treat the respondent\u2019s silence as an admission of the claimant\u2019s case; rather, tribunals are obliged to satisfy themselves that the claims are well-founded (see also N. Bassiri, Devil\u2019s Advocate \u2013 Counterintuitive? \u2013 What, Why and Who Is The Devil\u2019s Advocate in Default Proceedings?<\/em>, in D. De Meulemeester (ed), Default in Arbitration (2022), 79, at 99). At the same time, Gr\u00fcger highlighted that tribunals should be minded not to overstep by filling in as \u201cfree counsel\u201d for the defaulting party.<\/p>\n\n\n\n

Institutional rules and support were considered valuable, with the ICC\u2019s vast experience cited as particularly helpful. Witte emphasized the need to carefully document every step taken to notify the defaulting party. A well-drafted award, which records these efforts in detail, can be decisive if the award is later challenged. Indeed, best practice dictates tribunals to maintain meticulous evidentiary records of all notifications and to extend repeated invitations for participation (see also C. Salomon & F. Loibl, How to Respond to Respondents\u2019 Non-Participation<\/em>, 264 N.Y. L.J. 28 (2020), at 2).<\/p>\n\n\n\n

<\/div>\n\n\n\n

Counsel\u2019s Perspective<\/strong><\/h2>\n\n\n\n

As regards the counsel perspective, practical issues around notification, ranging from email confirmations to registered mail, were discussed, with Witte, again, underlining the importance of documenting every attempt. In the absence of strict service requirements under most institutional rules, practitioners often adopt hybrid methods of notification, combining courier, electronic communication, and even personal delivery, to align with both the law of the arbitral seat and the requirements of potential enforcement jurisdictions. Both Gomes and Witte shared their experiences with opposing parties\u2019 attempts to frustrate proper notice and recounted their creative efforts in commencing the proceedings (including procedural orders being brought to the home jurisdiction of the opposing party in suitcases and then hand-delivered by a domestic courier, which Gomes described as \u201cPO smuggling\u201d).<\/p>\n\n\n\n

The conversation also touched on strategic aspects. Gomes suggested that counsel for the participating party should anticipate possible defenses and address them proactively. With respect to advising parties whether they should default, he cautioned that refusing to participate in an arbitration is not typically a good idea. He mentioned that there may, however, be very specific situations where a \u201csoft default\u201d may be considered, such as abstaining from a specific hearing or a procedural conference where a party contests the tribunal\u2019s jurisdiction.<\/p>\n\n\n\n

Upon a question from the audience, both Gomes and Witte further discussed how interim measures or emergency arbitrator proceedings might be used to bring reluctant parties to the table. In some cases, receiving service of court documents might make more of an impression on parties than corresponding with an arbitral institution or tribunal. The speakers noted, however, that state courts are not often used as a means to convince non-participating parties to get to the table.<\/p>\n\n\n

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\"\"<\/figure>\n<\/div>\n\n\n

Overall, the discussion made clear that defaulting parties \u2013 whether absent from the outset, dropping out along the way, or only appearing at the hearing \u2013 pose significant challenges for arbitral tribunals and counsel alike. Witte and Gomes highlighted the importance of striking a balance in moving the case forward, while making sure the absent party has a fair chance to be heard, showing how careful documentation and creative notification strategies can make all the difference. After all, in the interest of the legal enforceability of the award, counsel and the tribunal must make sure that a defaulting party, despite being absent, is not forgotten.<\/p>\n\n\n\n

<\/div>\n\n\n\n
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ABOUT THE AUTHOR<\/strong><\/p>\n\n\n\n

Raoul J. Sievers<\/strong> is a research assistant at ArbBoutique<\/strong><\/a>. He is a PhD candidate at Humboldt University, specializing in international arbitration, and holds an LL.M. in International Commercial Arbitration Law from Stockholm University. He previously served as a visiting professional at the SCC Arbitration Institute<\/a> and worked with the international arbitration team at Freshfields<\/a> in Germany.<\/p>\n\n\n\n

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*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.<\/em><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Defaulting parties pose real risks in arbitration. At ICC YAAF Berlin, practitioners shared strategies to move cases forward without compromising due process.<\/p>\n","protected":false},"author":3,"featured_media":288285,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jnews-multi-image_gallery":[],"jnews_single_post":{"subtitle":"","format":"standard","video":"","gallery":"","source_name":"","source_url":"","via_name":"","via_url":"","override_template":"0","override":[{"template":"custom","single_blog_custom":"274736","parallax":"1","fullscreen":"1","layout":"right-sidebar","sidebar":"author","second_sidebar":"default-sidebar","sticky_sidebar":"1","share_position":"hide","share_float_style":"share-monocrhome","show_share_counter":"0","show_view_counter":"0","show_featured":"1","show_post_meta":"1","show_post_author":"0","show_post_author_image":"0","show_post_date":"1","post_date_format":"default","post_date_format_custom":"Y\/m\/d","show_post_category":"0","show_post_reading_time":"0","post_reading_time_wpm":"300","show_zoom_button":"0","zoom_button_out_step":"2","zoom_button_in_step":"3","show_post_tag":"0","show_prev_next_post":"0","show_popup_post":"0","number_popup_post":"1","show_author_box":"0","show_post_related":"0","show_inline_post_related":"0"}],"override_image_size":"0","image_override":[{"single_post_thumbnail_size":"crop-500","single_post_gallery_size":"crop-500"}],"trending_post":"0","trending_post_position":"meta","trending_post_label":"Trending","sponsored_post":"0","sponsored_post_label":"Sponsored by","sponsored_post_name":"","sponsored_post_url":"","sponsored_post_logo_enable":"0","sponsored_post_logo":"","sponsored_post_desc":"","disable_ad":"0"},"jnews_primary_category":{"id":"210","hide":""},"jnews_social_meta":{"fb_title":"Absent but Not Forgotten: Managing Defaulting Parties in Arbitration","fb_description":"Defaulting parties pose real risks in arbitration. At ICC YAAF Berlin, practitioners shared strategies to move cases forward without compromising due process.","fb_image":"288286","twitter_title":"Absent but Not Forgotten: Managing Defaulting Parties in Arbitration","twitter_description":"Defaulting parties pose real risks in arbitration. At ICC YAAF Berlin, practitioners shared strategies to move cases forward without compromising due process.","twitter_image":"288286"},"jnews_review":[],"enable_review":"0","type":"percentage","name":"","summary":"","brand":"","sku":"","good":[{"good_text":""}],"bad":[{"bad_text":""}],"score_override":"0","override_value":"","rating":[{"rating_text":"","rating_number":"10"}],"price":[{"shop":"","price":"","link":"","icon":""}],"jnews_override_counter":{"override_view_counter":"0","view_counter_number":"0","override_share_counter":"0","share_counter_number":"0","override_like_counter":"0","like_counter_number":"0","override_dislike_counter":"0","dislike_counter_number":"0"},"footnotes":""},"categories":[205,207,210,167,180,208,188,129,161],"tags":[],"coauthors":[],"class_list":["post-288284","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-arbitration","category-commercial-arbitration","category-conference-reports","category-europe","category-germany","category-investor-state-arbitration","category-legal-insights","category-news","category-world"],"_links":{"self":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts\/288284","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/comments?post=288284"}],"version-history":[{"count":5,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts\/288284\/revisions"}],"predecessor-version":[{"id":288298,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/posts\/288284\/revisions\/288298"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/media\/288285"}],"wp:attachment":[{"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/media?parent=288284"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/categories?post=288284"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/tags?post=288284"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/dailyjus.com\/index.php\/wp-json\/wp\/v2\/coauthors?post=288284"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}