Held:
(1) The right to be heard (due process) is not violated by arbitrators who refuse to draw inferences from a party's refusal to produce evidence.
(2) Procedural objections are waived if not raised and pursued immediately.
Background:
A party to an ICC arbitration in Switzerland named as witnesses two executives of the other party in the arbitration. These executives were not produced, and the arbitral tribunal issued the award without hearing these witnesses. The party having named the witnesses filed an appeal to set aside the award asserting a violation of its right to be heard. That party argued that the two executives had made statements that were crucial to the case, and pointed out that the 1983 IBA rules on the presentation of evidence (now superseded by the 1999 version) provide that the arbitrator shall draw inferences from a party’s refusal to produce evidence (art. 4.6 of the rules). The Supreme Court dismissed the appeal.
