London Arbitration Week 2025
THE AUTHOR:
Pritam Dumbré, LL.M. Graduate from the School of International Arbitration, Queen Mary University of London
Overview
Most ongoing discourses on improving arbitral practice are increasingly focused on counsel conduct and client strategy. Far less attention, however, is paid to how arbitrators experience and respond to party misconduct during proceedings. This imbalance extends to arbitral rules and soft-law instruments, where party misconduct is rarely addressed in express terms. Instead, such behaviour is remedied indirectly through tools including cost sanctions and compliance mechanisms. By contrast, arbitrator misconduct specifically issues of independence, impartiality, disclosure, and challenge is subject to closer scrutiny.
Against this backdrop, a panel convened during London Arbitration Week at the International Dispute Resolution Centre themed “Breaking Bad: How to Put a Stop to Party Misconduct”. The event was hosted by Littleton Chambers and George Z. Georgiou & Associates LLC. Chaired by the Rt. Hon. Dame Elizabeth Gloster (One Essex Court), the discussion featured
- Louis Flannery KC (Littleton Chambers)
- Rupert D’Cruz KC (Littleton Chambers),
- George Z. Georgiou (Managing Partner, GZG)
- Noradele Ghubril Radjai (Partner, LALIVE)
This session offered a timely opportunity to examine party misconduct from the tribunal’s perspective and explored strategies for its mitigation
Attribution and Escalation: How Party Misconduct Emerges
Opening the dialogue, Dame Gloster observed that party misconduct is not confined to the actions of parties themselves. It may equally arise through counsel, advisers, or other agents representing them. While arbitral frameworks provide tribunals with a range of procedural tools to address improper conduct, instances of party misconduct are rarely susceptible to uniform treatment. Their context-specific nature makes categorisation difficult, often complicating how tribunals assess and respond to them.
Rather than treating misconduct as a series of isolated breaches, the panel focused on how it develops incrementally and how seemingly minor actions, if left unchecked, can eventually undermine the authority of the tribunal and integrity of the process as a whole. The discussion revealed a spectrum of misconduct ranging from early behavioural warning signs to serious structural breaches threatening procedural legitimacy.
One of the earliest manifestations involves the use of language. D’Cruz emphasised that aggressive or confrontational rhetoric is not only counterproductive, but also often undermines a party’s case. Emotive language, he noted, rarely persuades tribunals; measured and temperate advocacy is typically far more effective in maintaining both persuasive force and procedural discipline.
Building on this point, Georgiou highlighted a more troubling trend: correspondence addressed to tribunals that adopts a menacing tone, including threats of civil proceedings or even references to contempt of court. Such tactics, intended to project strength, often signal a breakdown in professional restraint and respect for the arbitral process.
Testing the Tribunal: Procedural Non-Compliance in Practice
Beyond language and tone, the panel turned to procedural non-compliance as a recurring form of misconduct. This may take the form of active disregard for tribunal directions or more passive resistance, such as persistent delays or objections to minor procedural adjustments. Even refusing to accommodate inconsequential changes to the schedule may signal reluctance or hostility toward the process. While such conduct may seem trivial in isolation, cumulatively it can erode the tribunal’s authority and disrupt the efficiency and flow of proceedings.
The discussion further highlighted that procedural non-compliance is rarely accidental. When parties consistently test the limits of tribunal patience, they risk shifting the focus away from the merits of the dispute and toward procedural skirmishes that consume time and resources. Whether manifested through aggressive rhetoric or systematic non-compliance, these early-stage forms of misconduct share a common characteristic: they signal a willingness to prioritise tactical advantage over procedural integrity.
Conflicts of Interest and the Disclosure Dilemma
Moving to more serious categories of misconduct, the panel addressed conflicts of interest and failures of disclosure. Given the frequency with which arbitral awards are challenged on these grounds, the issue remains central to ongoing debates in arbitration.
In this regard, Flannery referred to the land and maritime boundary arbitration between Slovenia and Croatia as a stark illustration of how disclosure failures can irreparably compromise proceedings. In 2015, leaked recordings revealed ex parte communications between the Slovenian-appointed arbitrator and a senior official within Slovenia’s Ministry of Foreign Affairs. The exchanges went beyond incidental contact, encompassing discussions of tribunal deliberations and strategic advice aimed at influencing the outcome.
This conduct breached core arbitral duties on multiple levels. It undermined the arbitrator’s independence and impartiality and violated the continuing duty of disclosure, which requires arbitrators to reveal any circumstances giving rise to justifiable doubts. The absence of transparency rendered the breach structural rather than incidental, leaving little scope for remedial measures. Even resignation and reconstitution of the tribunal proved insufficient to restore confidence in the process.
Viewed through the lens of due process, the case reinforces that accountability extends beyond the parties themselves. Agents, counsel, and party-appointed arbitrators may equally contribute to procedural collapse. The example also highlights the limits of tribunal powers: certain breaches strike so deeply at the integrity of proceedings that they cannot be cured.
Due Process as Shield and Sword: Tactical Abuse in Practice
Radjai addressed the dual nature of due process in arbitration, which both safeguards fairness and legitimacy. While central to the enforceability of awards, due process can be misused strategically to delay proceedings or resist tribunal authority. Arbitrators therefore face a critical challenge in protecting procedural rights while preventing their abuse.
Such dilatory tactics often surface during hearings, particularly in the context of witness examination. Oral submissions, which may attract less immediate scrutiny than written pleadings, can create opportunities for improper conduct. D’Cruz highlighted the risks posed by witness coaching, where witnesses are led to offer testimony beyond their knowledge, undermining procedural fairness. The panel also noted instances where counsel misled tribunals regarding the applicable law governing the arbitration agreement, further complicating proceedings and risking adverse inferences.
While instruments such as the IBA Rules (International Bar Association) address these concerns, enforcement ultimately depends on the tribunal’s vigilance. Unlike conflicts of interest, which typically involve clear breaches of duty, tactical invocations of due process operate in a grey zone where legitimate rights-assertion and strategic obstruction are difficult to distinguish.
The Tribunal’s Role: Early Intervention and Case Management to Avert Crisis
The panel then considered how tribunals can effectively respond. The discussion revealed that no single rule or institutional mechanism can eliminate such behaviour entirely. Instead, effective management depends on early recognition, timely intervention, and strong case management.
Tribunals that hesitate to address misconduct risk normalising it. By contrast, proportionate and firm responses at an early stage can recalibrate party behaviour without compromising fairness or enforceability. The panel suggested that responding to minor infractions, such as inappropriate tone or initial instances of procedural non-compliance, early on can prevent escalation to more serious breaches.
The discussion also emphasised the pivotal role of the presiding arbitrator. A strong and neutral chair can set the tone of proceedings, restore order, and safeguard procedural equality. Where party-appointed arbitrators may feel constrained by perceptions of alignment, the chair’s authority becomes central to maintaining the tribunal’s collective legitimacy.
Furthermore, robust case management is instrumental to preserving and upholding due process. Tribunals must exercise their procedural powers decisively while remaining fair and transparent in their approach. This requires vigilance throughout proceedings, particularly during phases such as document production, witness examination, and oral hearings, where opportunities for misconduct are most prevalent.
Looking ahead, the panel stressed that addressing party misconduct requires more than additional rules. Cultural and professional reinforcement is equally essential. Arbitrators must feel supported by institutions and peers in exercising their procedural powers decisively, while counsel, has a responsibility to advise clients against short-term tactical gains that risk long-term procedural harm.
In conclusion, strategic attempts to delay or obstruct proceedings risk defeating the purpose of arbitration as a consensual form of dispute resolution. Beyond increasing time and cost, such conduct may distort the process into an adversarial contest, at odds with the consent-based foundations of arbitration. It may also carry reputational consequences for parties and counsel alike, often avoidable where proceedings are conducted with genuine engagement and voluntary compliance. Ultimately, maintaining the credibility of arbitration depends on a shared commitment to transparency, professional restraint and principled discretion.
ABOUT THE AUTHOR
Pritam Dumbré is an international arbitration and commercial disputes professional, legally trained and based in London. He is licensed to practise in India and has been an Advocate since 2022, with experience in civil and commercial litigation. He holds an LL.M. in Comparative and International Dispute Resolution from the School of International Arbitration, Queen Mary University of London, and a Master’s degree in Political Science. He closely follows geopolitical developments and focuses on investor–State disputes, arbitration in the film and creative industries, and art disputes. He has contributed to arbitration commentary and is actively engaged with the international disputes community.
*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.
