In order to remain competitive vis-à-vis other forms of dispute resolution, international arbitration must constantly monitor its efficiency. By minimising unnecessary battles over procedural issues, international arbitration can ensure that parties avoid having to deal with costly side-issues.
One of the reasons for considerable – and often excessive – attention being paid to procedural issues is the fear that a failure to do so could violate the right to be heard, leading to annulment or hindering enforcement, which itself undermines efficiency. Yet excessively guarding against the possibility of such violations is equally inefficient. To minimize efficiency losses, the authors draw on an emerging line of case law in ICSID annulment proceedings as well as waiver provisions applicable in a range of leges arbitris to propose a strict principle of estoppel. This approach forces parties to raise procedural issues before the instance most capable of resolving them quickly and fully – the arbitral tribunal – and limits both recourse to costly annulment proceedings and enforcement problems. A party should be allowed to invoke a violation of the right to be heard at the annulment or enforcement stage only to the extent that it has specifically raised its concerns and sought corollary relief before the arbitral tribunal.b-Arbitra | Belgian Review of Arbitration