Originally from the Leading Arbitrators' Guide to International Arbitration - Fourth Edition

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Major international arbitration rules and most national arbitration laws expressly empower the tribunal to proceed with an arbitration and to make an award notwithstanding a party’s failure to participate in all or part of the proceedings.  This ensures that the dilatory tactics of a non-participating party will not derail an arbitration. However, a tribunal may inadvertently overcompensate for an absent party in the name of “due process,” resulting in a protracted and frustrating arbitration for the participating party. Even if a tribunal is sensitive to this possibility, because national arbitration laws and arbitration rules require that the tribunal make an award on the merits rather than merely issuing a “default” award favoring the participating party,  the tribunal will need to grapple with tricky questions about how proactive it can and should be in testing the evidence, without becoming the absent party’s advocate. Effective management of an arbitration involving a non-participating party thus requires an understanding of what procedural steps are necessary to safeguard the enforceability of an award, and a playbook of strategies for how to adapt procedures and decision-making norms that are premised on an adversarial process. Although a claimant may sometimes disappear mid-stream in an arbitration, the most common non-participating party scenario involves a respondent that never appears or merely dips its toes into a case for a brief period. This chapter shares lessons learned for when the respondent is such a ghost.