While there are no official statistics on respondent non-participation in international arbitration, institutional guidelines and anecdotal evidence suggest arbitrations without respondents are fairly common. As parties face higher risks of insolvency as well as trade and travel restrictions because of the pandemic, tribunals and claimants are increasingly likely to encounter issues related to a non-participating respondent in international arbitrations. The Chartered Institute of Arbitrators’ Guidelines on Party Non-Participation (the “CIArb Guidelines”) defines non-participation as when a party either does not take any steps in arbitration or initially participated but ceases to participate later in the process.

Proceeding with an arbitration without a respondent is, at first glance, contradictory to the mutual consent principle of arbitration agreements. Unsurprisingly, neither institutional rules nor national arbitration laws allow for a default award similar to the default judgments possible in U.S. courts. However, all major institutional rules and national arbitration laws recognize that arbitral tribunals have the inherent power to carry out their adjudicatory function with or without the respondent—assuming the respondent has been duly notified of the arbitration and fails to show sufficient cause to excuse its non-participation.

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