At a high-level symposium hosted by the Berkeley Journal of International Law, Claudia Salomon, the President of the International Chamber of Commerce (ICC) International Court of Arbitration, delivered a comprehensive keynote address tackling one of the most persistent yet under-discussed hurdles in global dispute resolution: the "empty seat" at the arbitration table. During the event, Ms. Salomon was honored with the Stefan A. Riesenfeld Memorial Award, a prestigious accolade granted annually to individuals who have demonstrated extraordinary leadership and contribution to the field of international law.
As the first woman to lead the ICC Court since its inception over a century ago, Ms. Salomon’s insights carry significant weight within the legal community. Her address focused on the procedural, legal, and ethical complexities that arise when a respondent fails to participate in proceedings, a phenomenon that recent data suggests is far more prevalent than previously understood.
The Evolution of the "Empty Seat" Phenomenon
The issue of non-participation is not merely a procedural nuisance; it strikes at the heart of the legitimacy and efficiency of international arbitration. Traditionally, arbitration is viewed as a consensual process where two parties agree to resolve their disputes outside of national courts. However, as Ms. Salomon observed through her tenure as a US ICC Court Member and subsequently as Vice President, the reality often involves a claimant "dancing alone."
In her early years of scrutinizing draft awards—a unique quality-control function of the ICC Court—Ms. Salomon noted a surprising trend: in many cases, the respondent either never appeared or withdrew early in the process. This absence creates a vacuum that forces arbitral tribunals to navigate a difficult path between ensuring a fair process for the absent party and fulfilling their duty to the participating claimant to deliver a final, enforceable award.
The lack of comprehensive data on this topic led Ms. Salomon to co-author seminal research in the American Review of International Arbitration (2019) and the New York Law Journal (2020). These efforts laid the groundwork for a more data-driven approach to understanding why parties opt out of the process and how the system should respond.
Statistical Analysis: The Scale of Non-Participation
To quantify the scope of the problem, the ICC conducted an internal review of final awards issued under its rules between 2020 and 2025. The findings reveal a significant and steady presence of non-participating parties across various dispute types.
The data indicates that nearly one in six cases—approximately 17%—involved at least one non-participating party. This figure fluctuated from 12% in 2022 to a peak of 17.5% by 2025. Perhaps most striking is the data regarding expedited arbitration cases, which typically involve disputes valued at less than US$3 million. In these lower-value disputes, the rate of non-participation surged to between 25% and 35%.
Legal analysts suggest that the higher non-participation rates in smaller cases may be attributed to the "cost-benefit" calculus of respondents. In smaller commercial disputes, a respondent facing financial distress or bankruptcy may determine that the legal fees required to defend the claim outweigh the potential liability, leading them to abandon the proceedings entirely. Conversely, in larger cases, the stakes usually mandate participation to protect corporate assets and reputation.
Arbitration vs. Litigation: The Absence of Default Judgments
One of the most critical distinctions Ms. Salomon highlighted is the difference between how national courts and arbitral tribunals handle a defaulting party. In many jurisdictions, such as the United States, a plaintiff can obtain a "default judgment" relatively easily if the defendant fails to answer a summons. In simple monetary claims, this can sometimes be achieved through a clerk without intensive judicial review of the merits.
International arbitration operates under a different set of principles. No major arbitral institution—including the ICC, LCIA, or SIAC—allows for an automatic default judgment. Instead, the burden remains squarely on the claimant to prove their case.
This distinction is rooted in three core legal principles:
- The Duty of Adjudication: Under the New York Convention, tribunals must provide a "reasoned award," meaning they must assess the facts and law regardless of the respondent’s absence.
- Procedural Equality: Article 18 of the UNCITRAL Model Law mandates that parties be treated with equality. Even if a party chooses not to show up, the tribunal must ensure they were given a "full opportunity" to do so.
- The Principle of Truth: To maintain the legitimacy of the system, awards must be grounded in fact. An award based on unverified allegations could be set aside by national courts during the enforcement stage.
Procedural Safeguards and the "Notice" Requirement
A recurring theme in Ms. Salomon’s address was the paramount importance of notice. Under Article V(1)(b) of the New York Convention, an award can be refused enforcement if the losing party was not given proper notice of the proceedings.
In practice, this requires tribunals to go to extraordinary lengths to communicate with the absent party. Ms. Salomon shared a personal anecdote from her time as an arbitrator where an email address provided in a contract repeatedly failed. To ensure the integrity of the process, the tribunal established a rigorous communication protocol involving the delivery of physical hard copies to the respondent’s known address, with every delivery confirmation documented in the final award.
This "robust but fair" approach is supported by international case law. For instance, in the English High Court case of Interprods Ltd v De La Rue International Ltd, the court upheld an award where the arbitrator proceeded with a telephone conference despite the respondent’s refusal to join. The court ruled that as long as notice was adequate, the tribunal’s decision to move forward was sound. Similarly, in the Singaporean case DEL v DEM, the Court of Appeal warned that allowing a non-participating party to later challenge an award based on arguments they failed to raise during the arbitration would permit "hedging of the most egregious form."
High-Stakes Precedents: From Law Firms to Sovereign States
The implications of non-participation are perhaps best illustrated by the case of Bartlit Beck v. Okada. In this dispute, Japanese mogul Kazuo Okada opted out of an arbitration hearing regarding a $50 million fee dispute at the eleventh hour, claiming illness. The tribunal proceeded without him, and the U.S. Seventh Circuit eventually affirmed the award, famously stating: "Okada took himself out of the race. He cannot now complain that he was unfairly deprived of the chance to win."
The issue also extends into the realm of public international law. Ms. Salomon pointed to the South China Sea arbitration between the Philippines and China. Despite China’s public refusal to participate, the tribunal at the Permanent Court of Arbitration (PCA) took "painstaking measures" to safeguard China’s procedural rights, providing them with all transcripts and inviting comments at every stage. This ensured that the final award met the highest standards of international due process, even in the face of a high-profile "empty seat."
Jurisdictional Challenges and the "Dallah" Principle
A significant strategic risk for claimants is the "jurisdictional trap." A respondent may choose not to participate in the arbitration and instead save their resources to challenge the tribunal’s jurisdiction at the enforcement stage in a national court.
This is often referred to as the "Dallah" principle, stemming from the UK Supreme Court’s decision in Dallah v. Pakistan. The court ruled that a party who disputes jurisdiction is entitled not to participate and can have the issue decided de novo (anew) by a court later. For claimants, this means that winning an "empty seat" arbitration is only half the battle; they must be prepared to defend the tribunal’s very right to have heard the case years after the initial filing.
To mitigate this, Ms. Salomon suggested that claimants might proactively seek a preliminary court determination on jurisdiction early in the process, rather than waiting for the final award to be challenged.
Conclusion: The ICC’s Path Forward
As the landscape of international commerce becomes more complex, the ICC is taking proactive steps to address the "empty seat" dilemma. Ms. Salomon announced the formation of a new ICC Commission Working Group on non-participating parties. This group is tasked with formulating guidelines and practical approaches for both arbitrators and parties to ensure that the process remains efficient without sacrificing fairness.
The President’s message was clear: while it takes two to tango, the international arbitration system is robust enough to ensure that if one party refuses to take the floor, the music does not have to stop. Through rigorous scrutiny, data analysis, and adherence to international standards, arbitral institutions continue to serve as the guardians of a process that remains the gold standard for global dispute resolution.
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