Due Process: Laws May Vary but the Principles Are Universal

Dispute Resolution Journal, February-April 2007 | Go to article overview

Due Process: Laws May Vary but the Principles Are Universal


Due Process: Laws May Vary but the Principles Are Universal Due Process in International Commercial Arbitration. By Matti S. Kurkela. Dobbs Ferry, New York: Oceana Publications (www.oceanalaw.com) 2005. Hardcover. 485 pages. $150.

International commercial arbitration, just like international trade itself, "floats" above many national jurisdictions. This book identifies due process standards and principles that are applicable across the board.

What is due process? "Due" refers to compatibility with a specific national procedural law or set of rules, and "process" refers to proceedings that must be conducted in a certain manner.

Matti S. Kurkela, a senior partner at Hannes Snellman in Helsinki and a docent at the University of Helsinki, identifies three key elements of due process within the context of international commercial arbitration: facts, law, and intelligence. He sees arbitration as a combination of all three in pursuit of justice.

"In almost all legal proceedings the focus or attention is on the past: the facts," writes the author. "A universal policy issue is how to ensure that the relevant facts are established in the proceedings or whether this is left solely to the parties."

Establishing the Facts

There is little doubt that the parties are primarily responsible for establishing the facts and for reconstructing the past. The uncertainty, however, lies on the extent of the arbitral panel's duty to participate in this exercise. The author says arbitrators have the duty to establish what is relevant, to determine how the relevant facts will be established, and to give the necessary guidance and orders for the parties to accomplish this task.

The second element of due process is the law. It has many facets in international commercial arbitration, including national and transnational conflict of law rules, substantive national laws, procedural national laws, law merchant (lex mercatoria), and international treaties. …

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