An Empty Seat at the Table: International Arbitration with Non-Participating Parties

At the annual Riesenfeld Symposium at Berkeley Law on 9 April, Claudia Salomon, President of the ICC International Court of Arbitration, warned that non-participation can jeopardise arbitration success, forcing parties to adapt strategies and tribunals to make decisions without both sides being heard.

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During the symposium, Ms Salomon, who made history in 2021 when she became the first woman President of the ICC Court, was presented with the Stefan A. Riesenfeld Memorial Award, presented annually by the Berkeley Journal of International Law to a distinguished scholar or practitioner who has made outstanding contributions to the field of international law.

Following is the full text of her speech:

Before becoming President of the ICC International Court of Arbitration, I served as the US ICC Court Member and then as a Vice President of the ICC Court.

One of the key roles of the ICC Court is to scrutinise draft awards. To do this, Court Members assess whether the tribunal's reasoning is clear and all the claims and defences have been considered. We try to maximise the enforceability of the arbitral award, and the ICC Court is the only arbitral institution in the world that provides this additional service - ensuring a level of quality control.

While scrutinising draft awards during my early days on the Court, I was surprised that in many cases, the respondent did not participate - or had initially participated but then failed to appear later in the process.

Cases with an empty seat at the table can be problematic.

Without both sides of the argument present, arbitral tribunals often struggle to conduct the arbitration effectively and to draft an award coherently. More specifically, tribunals face difficulties in assessing the extent to which they should allow the non-participating party to engage in the process and in justifying their conclusions.

The Chartered Institute of Arbitrators had issued practice guidelines on party non-participation in 2016, but I hadn't seen much written about the topic to understand the full extent of the implications of non-participating parties in international arbitration.

Digging deeper, I found that none of the major arbitral institutions compiled data on non-participation.

Intrigued, I co-wrote two articles on the topic - in the American Review of International Arbitration in 2019 and a shorter piece in the New York Law Journal in 2020.

Statistics

Fast forward to today: the issues raised by non-participating parties in arbitration have not abated, and now, we have sufficient data to more directly address this phenomenon.

Our fabulous ICC team of interns looked at the final awards issued under the ICC rules between 2020 and 2025, and found that:

Nearly 1 in 6 cases involved non-participating parties - that's almost 17%.

Cases were in the range of 12% in 2022 and to 17.5% in 2025.

Among expedited arbitration cases - those primarily involve lower value disputes -that is, less than US$ 2 million until 2021 and less than US$3 million since then - we found that between 25% and 35% of the cases involved non-participating parties.

I don't have information for other major arbitral institutions administering commercial disputes. But because their cases usually involve much smaller cases than we have at the ICC Court, it's reasonable to assume they also experience significant levels of non-participation.

Five questions

All the cases involving non-participating parties - whether brought under public international law or in a commercial context - present several procedural challenges.

Unlike in most national courts, there is no mechanism under the major arbitral institutional rules to obtain a default judgment. As a result, when faced with a non-participating party, the arbitral tribunal must consider how to conduct the proceedings, along with the factors required to consider when issuing its award.

Today, I want to explore five critical questions regarding non-participation:

1. Can an arbitration proceed with only one participating party?
2. Why is a default judgment available against a non-participating party in litigation, but a default award is not available in arbitration?
3. What steps are required to ensure the non-participating party has been notified of the proceedings and has an opportunity to present its case?
4. What steps are required for the arbitral tribunal to assess whether the claim is grounded in fact and law? and
5. Should a non-participating party be entitled to subsequently challenge the jurisdiction of the arbitral tribunal - despite its absence from the proceedings?

So, let's jump in -

1. Can an arbitration proceed with only one participating party?

As the saying goes, it takes two to tango…but in arbitration, one party can dance alone.

The precise rules for dealing with a non-participating party depend on the arbitration agreement and the law of the seat or lex arbitri, but two common themes emerge:

• First, non-participation of the responding party does not prevent the case from proceeding, and
• Second, a final award will be binding on the non-participating party if they previously consented to arbitrate the dispute.

For example, the ICC Rules address non-participating parties in four specific ways:

1. The ICC Court will appoint an arbitrator if a respondent fails to appoint one
2. If a respondent does not submit an Answer, the arbitration will proceed if and to the extent that the ICC Court is prima facie satisfied that an arbitration agreement exists, and then it is for the arbitral tribunal to assess its jurisdiction.
3. If any party refuses or fails to take part in the arbitration or any stage thereof, the arbitration will proceed notwithstanding such refusal or failure; and finally,
4. For any hearings, if any party is "duly summoned" but fails to appear without a valid excuse, the arbitral tribunal has the power to proceed with the hearing;

The other major arbitral institutions all have similar provisions.

If arbitral institutions and arbitral tribunals did not have this power, non-participating parties would be able to derail the arbitration as an effective dispute resolution mechanism.

In this respect, arbitral institutions serve as guardians of the process.

The UNCITRAL Model Law, which has been adopted in or influenced more than 100 jurisdictions, also clearly state that a party's non-participation cannot stop the proceeding.

One final point on dancing alone through an arbitration - and this concerns the fees and expenses, for both the arbitrators and the administering institution. After the initial filing fee, parties are expected to share all costs of the arbitration, starting with initial deposits in equal shares.

But if one party is not participating or is participating and refuses to pay, then the other party generally has no choice but to pay the entire advance. The participating party can then request that these payments be reimbursed in a subsequent award on costs or request a partial award ordering the non-paying party to reimburse it.

The bottom line is this - a party can dance alone - and advance its claim in arbitration with a non-participating respondent - but the claimant must be prepared for higher upfront costs.

1. Why aren't default awards available in arbitration, like default judgments in litigation?

In a national court, the consequences of not defending against a claim can be extreme: the defaulting party can swiftly face an adverse judgment, often with very limited judicial scrutiny of the merits of the claim.

For simple monetary claims in the United States, for example, the default judgment can be obtained by applying to the clerk without review by a judge. More complicated cases involve assessing damages and liability.

The specific process can vary. Some courts will more closely examine the merits before issuing a default judgment, but absent unusual circumstances, most courts will treat the non-disputed facts alleged by the plaintiff as true and will issue a default judgment on this basis if the case meets the legal requirements for the claim.

Arbitration is different. None of the major international arbitration rules has a procedural mechanism that is equivalent to a default judgment in a court of law. And no institutional rules or laws treat non-disputed claims as admitted.

In fact, the opposite is true.

The UNCITRAL Model Law expressly provides in Article 25 that failure to respond is not an admission of the claimant's allegations, and the award may be made on the evidence before it.

Article 49 of the ICSID Rules and Article 30 of the UNCITRAL Rules include similar provisions.

English law is similar, providing that the tribunal may make an award based on the evidence before it, and "proceed to an award based on such materials as have been properly provided to it."

Only the Stockholm Chamber and JAMS provide that the tribunal may draw such inferences as it considers appropriate from a party's non-participation.

To summarise:

Default awards are not available in arbitration because the rules do not provide for them and failure to participate may not be treated as an admission of liability.

But two critical questions remain: why is there such a distinction between arbitration and litigation?

And if arbitration is designed to be faster and cheaper than litigation, why would obtaining relief be more difficult in arbitration when a respondent is not participating?

The answers boil down to three core principles:

The first is a duty of adjudication. Under the New York Convention, the tribunal is required to provide a reasoned award. This requires the arbitrators to assess whether the claims are supported by the facts and applicable law.

The second principle is equal treatment and procedural equality. This has a long history in modern legal thought linked to the right of a fair trial. Although there is no express reference to equality in the New York Convention, academic commentary widely acknowledges that Article V(1)(b) includes equality of treatment.

The UNCITRAL Model Law also guarantees equal treatment in more explicit terms. Article 18 provides that "[t]he parties shall be treated with equality, and each party shall be given a full opportunity of presenting his case."

The third core reason that default awards are not available in international arbitration is the principle of truth, which is distinct from justice. Ensuring that an arbitration award is grounded in fact and law is essential to the legitimacy of arbitration, which operates outside of a national court system, yet is also subject to review by the enforcing courts.

1. What steps are required to ensure the non-participating party has been notified of the proceedings and has an opportunity to present its case?

Article V(1)(b) of the New York Convention provides that recognition and enforcement of an arbitral award may be refused if the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the proceedings or was otherwise unable to present his case.

How does this work in practice?

In ICC Arbitration, the Secretariat will need to be satisfied in the first instance that respondent has received proper notice before the tribunal is constituted and the case is transmitted to the tribunal.

But the tribunal will then need to satisfy itself that all parties have received notice and review the details of how to effectively communicate with the non-participating party, including any contractual notice provision.

To avoid challenges that the non-participating party was not given proper notice, arbitrators and the participating parties should copy all parties, including the non-participating party, in all communications and submissions, as well as procedural orders.

The courts are very clear that non-participation does not relieve the tribunal of keeping that party informed of each step of the proceeding. Best practice is to encourage the non-participating party and request their response at each step - and include a separate section in the award detailing all of the steps taken to communicate with the non-participating party.

I'll share a personal experience involving a non-participating party in one of my cases as arbitrator: an email address included in the notice provisions in the applicable contract kept bouncing back. We didn't have an alternative email - but we did know the physical address.

So, we put together a communication protocol in which the claimant would ensure hard copies were delivered to the physical address and submit the delivery confirmations to the tribunal. We then documented that procedure in the final award, satisfied that all communications had been sent to the non-participating party.

Several other practical issues can arise in this context, and I'll just highlight a few:

First, what happens if the participating party requests an extension of time to file its statement of claim? Ordinarily, the other party would be allowed to comment. However, if there is no indication that the respondent will participate, must the tribunal wait for such a comment? Granting an extension is likely appropriate, provided the other party is also afforded equal time to respond.

Second, does the procedural timetable need to allocate an equal amount of time for the respondent to file a statement of defence as the claimant had for the statement of claim if it is evident that the respondent is not participating? Some commentators have suggested that one technique to expedite the proceedings is to set a shorter deadline for the respondent to indicate whether it intends to file a statement of defence; if no response is provided, the tribunal can proceed accordingly.

Third, while ex parte communications should generally be avoided, they may be unavoidable when conducting a case management conference or hearing with a non-participating party. In such circumstances, the Chartered Institute of Arbitrators recommends that arbitrators prepare, or direct the preparation of, a written record or transcript of the communication and send it to all parties, including the non-participating party.

All these steps are designed to ensure that the non-participating party is given a fair opportunity to enter in the arbitration, to present its case, and to comment on the arguments and evidence submitted by the opposing party.

But it also raises the question: what constitutes a fair opportunity to participate?

The case of Interprods Ltd v De La Rue International Ltd is instructive on this question. There, the respondent challenged an arbitral award in the English High Court, on the ground that the arbitrator held a telephone conference without its participation. The respondent, however, had declined to participate in the conference, and the judge held that the tribunal's decision to proceed with the telephone conference in that party's absence was a "robust but fair decision," given that adequate notice had been provided.

Similarly in Singapore, in DEL v DEM, the court of appeal concluded that a non-participating party who had proper notice cannot argue that the tribunal failed to consider a substantive argument that was never raised because the respondent hadn't put the issue before the tribunal. Otherwise, according to the court, it would "permit hedging of the most egregious form."

Another good example is Barlit Beck v Okada, a case I worked on as a partner at Latham & Watkins before becoming the President of the ICC Court.

That arbitration arose when a Japanese gambling magnate named Kazuo Okada refused to pay the $50 million contingency fee provided in his engagement letter with the law firm, Barlit Beck.

Days before the final hearing, Okada's counsel suddenly announced he would not appear. He claimed he was ill and could not travel; however, when the tribunal requested arguments regarding Okada's nonappearance, his counsel said Okada rejected the validity of the engagement agreement.

The panel then allowed Bartlit Beck to submit a Final Brief in place of the hearing and refused to accept any further briefings from Okada, whom it determined had waived his right to present a defence. Days later, Okada's counsel requested that the hearing be rescheduled if Okada would attend. The tribunal declined, finding "no good cause to do so." And shortly thereafter, the tribunal issued an award in Bartlit Beck's favour.

When Bartlit Beck sought to confirm the award in the Northern District of Illinois, Okada argued the award should be vacated under Article V(1)(b) of the New York Convention because the tribunal had denied him a fair hearing.

The court rejected Okada's argument. It found that the tribunal's decision to proceed with the hearing despite Okada's alleged illness was reasonable because he hadn't mentioned being sick until after default was threatened, and he instructed his counsel not to appear because he considered the engagement letter invalid. And Okada never demonstrated that he was in fact, ill.

On appeal, the 7th Circuit affirmed the district court's decision and concluded: "Okada took himself out of the race. He cannot now complain that he was unfairly deprived of the chance to win."

The Bartlet Beck decision underscores that courts have little patience for parties who complain about the procedural fairness of the case proceeding without them when they have been given every opportunity to participate but subsequently opt out.

Documenting the communication to the non-participating party, however, is crucial to support any decision by the tribunal to then proceed with the case and all these details should be included in the award.

Concerning procedural fairness, it is essential to strike a balance between ensuring the rights of the non-participant to be heard and the tribunal's obligation to conduct the arbitration proceedings efficiently.

Failing to appoint an arbitrator or attend a procedural hearing or filing a statement of defence does not typically preclude a party from reengaging in the process at a subsequent time, and the non-participating party should be reminded of this option throughout the proceedings. All these protections are part of efforts to provide the non-participant with every opportunity to participate.

Lastly, I'll mention the dispute between the Philippines and China regarding China's activities in the South China Sea. This provides another example of how a tribunal may address its special responsibility when deciding a case involving a non-participating party.

Here, the tribunal took painstaking measures to safeguard China's procedural rights to avoid having it challenge the award for lack of notice or lack of opportunity to present its case. For example:

China had adequate notice of hearings, promptly received all communications materials, documents and transcripts, had equal and adequate time to submit written responses and pleadings, and was invited to comment throughout the proceedings, including post-hearing written comments. The Permanent Court of Arbitration registry staff was available to the Chinese Embassy to answer any questions of an administrative or procedural nature; and China was repeatedly told that it could participate in the hearings at any time.

To learn more about some of the publicly reported cases involving non-participating states at the PCA and ICJ, I can highly recommend Judith Levine's excellent analyses on the subject.

1. What steps are required for the arbitral tribunal to assess whether the claim is grounded in fact and law?

A party's non-participation raises a crucial question for the tribunal: how can it assess whether the claims are grounded in fact and law, without hearing from both parties?

To be clear: the participating party must still prove its claims, but it should not be required to speculate about the non-participating party's arguments simply to rebut them. Likewise, the non-participating party should not gain an advantage by failing to appear. And the arbitrators shouldn't argue the case on behalf of the non-participating party.

Let's discuss how to strike this balance.

The fact that one party is not present does not alter the standard or burden of proof of the claimant. The claimant must still thoroughly consider all the elements of the claim and ensure each is supported by the evidence.

Additionally, while the claimant might withhold possible weaknesses in its case, hoping the other side will overlook them, the claimant should instead take the initiative, point out the weaknesses or inconsistencies, and deal with them. If not, the tribunal will inevitably find them when writing the award.

The tribunal cannot blindly accept the claimant's uncontested evidence but instead needs to carefully consider whether the evidence supports the claim or falls short.

I can tell you unequivocally that in cases involving non-participating respondents at the ICC Court, claimants do not always receive the relief they seek when the tribunal determines that the claimant has failed to meet its burden of proof.

How far must the tribunal go to test the evidence?

Should it also appoint its own experts to assess the claimant's expert evidence if the issues extend beyond the tribunal's expertise?

For matters damage calculations with which a seasoned arbitrator would have experience, appointing special experts is likely unnecessary. The tribunal should carefully weigh the benefit of testing the claimant's evidence against the additional time and costs the claimant will incur. Although the tribunal may include those costs in its final award, the claimant cannot assume that a non-participating respondent will pay them voluntarily.

A tribunal may find it useful to submit questions to both parties, in writing, concerning a claim. The claimant can then address the issues; the tribunal has meanwhile met the respondent's procedural right to participate in the proceeding and react to the claimant's evidence.

The tribunal is also advised to review all available materials before it to understand the non-participating parties' position. In one of my cases involving a non-participating party, the correspondence between the parties contained the non-participating respondent's statements explaining why it believed payment was not due. The tribunal considered each of those arguments and assessed whether they had merit.

The tribunal may also decide to hold a virtual or in-person hearing with the invited parties to further test the evidence submitted to it. But this isn't automatic in cases involving non-participating parties and should only be held if the tribunal considers it necessary to assess the claims.

On assessing the law, the tribunal also needs to determine whether it is bound to consider only the legal authorities before it or whether it is appropriate to do its own research and rely on additional authorities. This question in a broader context, not limited to cases involving non-participating parties sparks widely divergent views, which has been analysed in recent lectures and published papers by Chiann Bao and Mohamed Abdel Wahab on iura novit arbiter. The key point to keep in mind is this: there should not be any surprises. The tribunal can raise any legal questions they have for party comment.

Finally, the tribunal must determine whether any instances of corruption could affect the validity of the agreement between the parties. It has the duty to ensure, even sua sponte, that the subject of the arbitration proceedings does not violate international public policy and that any award will be valid and enforceable. Given growing global concerns about corruption, the ICC Commission on Arbitration and ADR will issue a report on this topic in the coming months.

1. Should a non-participating party be entitled to subsequently challenge the jurisdiction of the tribunal - despite its absence from the proceedings?

My fifth and final issue today - jurisdictional objections.

The Chartered Institute of Arbitrators recommends that if a party is absent, arbitrators should, as a matter of best practice, consider whether they have jurisdiction to decide the matter referred to them - even if no party has raised a challenge.

This approach is enshrined in the ICC rules.

As a result, even if no jurisdictional objection has been raised, the tribunal must satisfy itself - and explain in its award - that it has the authority to hear the dispute. To do this, the tribunal should review the arbitration agreement to determine its validity under the applicable law and ensure it covers both the dispute and the parties involved.

In a recent ICC case, the tribunal found it did not have jurisdiction over one of the non-participating respondents - allegedly a successor to a signatory of the contract - because the claimant had failed to prove that the respondent had passed away.

The question is whether a non-participating party should be entitled to sit out the arbitration without excuse - and then be allowed to raise a jurisdictional objection at the enforcement stage. Or should a court consider that jurisdictional objection waived?

Section 72 of the UK Arbitration Act gives non-participatory parties the right to challenge the award, and this challenge can be brought during the arbitration or after the arbitral award has been issued.

On one hand, the provision prevents arbitral proceedings from being delayed, and awards from being evaded by jurisdictional objections that ought to have been raised earlier, while still allowing a party to legitimately disregard an arbitral proceeding it views as invalid.

This approach helped establish the so-called "Dallah" principle in 2010 - referring to the UK Supreme Court's judgment in Dallah v Pakistan, in which a party who disputes jurisdiction is entitled not to participate in arbitration proceedings if it took the view that the proceedings were invalid; even if the tribunal has ruled positively on its own jurisdiction, the court will decide the issue de novo, without any deference to the tribunal's determination of its own jurisdiction.

The Singapore court of appeal took a similar approach in 2019 in Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Services, when it decided a non-participating party may still object to the jurisdiction of a tribunal at the "setting aside" stage. Such a party does not owe the other party any duty to participate especially when such participation may be inconsistent with their position that they are not subject to the jurisdiction of the tribunal.

A respondent which believes the tribunal lacks jurisdiction may opt not to participate in the arbitration and wait until an award is enforced against it before taking any step to challenge the jurisdiction. This will save a respondent the costs of participating in the arbitration (although of course, this may lead to the non-participating party losing the arbitration). And in turn, having an award enforced against it should its challenge fail.

A claimant who faces a silent respondent should be prepared to deal with a challenge to the tribunal's jurisdiction at the point of enforcement and incur additional costs in defending the tribunal's jurisdiction as well as the award.

A claimant can also take a proactive approach and apply for a preliminary determination by the court on the tribunal's jurisdiction. If the conditions to make an application under are fulfilled, obtaining a preliminary determination on the tribunal's jurisdiction from the court before proceeding to the merits of the case may help the claimant in managing its costs. It may also increase the prospect of resisting any application by the respondent, as the latter's conduct in the claimant's application would be taken into account by the court in the exercise of its discretion.

Conclusion

Let me leave you with this final thought:

An empty seat at the table in arbitration proceedings is more common than many in our field realise.

Data support my personal experiences and observations that, for a variety of reasons, a growing number of parties today are choosing not to participate.

This can jeopardise the success of arbitration, as the participating parties must adjust their strategies and the tribunal must make critical decisions and judgments without the benefit of hearing from both sides.

For this reason, the ICC Commission on Arbitration and ADR has decided to convene a Working Group on non-participating parties. The Steering Committee is in the process of formulating a mandate and will put out a call for interest to prepare guidelines for parties and arbitrators on practical approaches to handling such cases.

How arbitrators and arbitral institutions address the issue of non-participation will ensure that arbitration remains a viable process - and in many instances, the best way to resolve disputes.

For a full copy of this speech with footnotes please .