Part III Arbitral Proceedings: Establishing the Facts and Applying the Law, C Procedural Norms, 2 Procedural Default Rules Revisited

To enhance fairness in arbitral proceedings, the 2002 Freshfields Lecture suggested that institutional rules might provide greater specificity in case management protocols, subject always to the parties’ agreement otherwise. The modest thesis of those remarks was that litigants often feel cheated when rules applicable to matters such as document production and evidence are adopted only after the birth of a particular quarrel. The problem with default rules, of course, is that they limit arbitrator discretion, flexibility and freedom, a trinity that still triggers...