Article 5. 1. (b) of New York Convention defines that the recognition and enforcement of the award may be refused on the ground that the party against

Article 5. 1. (b) of New York Convention defines that the recognition and enforcement of the

award

may be refused on the ground that the

party

against whom the

award

is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was

otherwise

unable to present his case.

However

, the main thrust of

this

provision of the Convention is directed at ensuring that the requirements of “due process” are observed and that the parties are given a fair hearing. Obviously, parties’ right to be heard is of particular concern in regard to caucusing. If the Arbitral Tribunal holds private sessions and listens to what one

party

has to say in the absence of the other, that

party

may reveal facts to the members of the tribunal the other

party

is unable to rebut.

Such

an ex parte conversation is a textbook example for a violation of the right to be heard and usually constitutes a ground to vacate the

award

.

Nevertheless

, there is

also

one strong contra-argument which is against the abovementioned “right to be heard” principle when the mediating arbitrator uses caucusing technique. The argument is “confidentiality of

information

gained through caucusing” principle. During caucusing

party

is able to provide the mediator with confidential

information

that is

not shared with the other

party

and mediator’s possession of

such

confidential

information

from both parties usually allows the mediator to guide the parties to an amicable

settlement

. In order to avoid from the conflict of mentioned principles,

for example

, Centre for Effective Dispute Resolution Rules for the Facilitation of

Settlement

in International Arbitration (hereinafter “CEDR

Settlement

Rules”), in its Article 3 (General principles) states that: “4. Nothing said or done by any

Party

or its counsel in the course of any

settlement

discussions, or in the course of any other steps taken by the Arbitral Tribunal to facilitate

settlement

, shall be used against a

Party

in the event that the arbitration resumes (save as regards the allocation of costs in accordance with Article [6] of these Rules). 5. The tribunal shall not take into account for the purpose of making an

Award

, any substantive matters discussed in

settlement

meetings or communications, unless

such

matter has already been introduced in the arbitration”. Unfortunately, while the Prague Rules do not prohibit the use of caucusing during the hybrid process of mediation during arbitration and have not formulated any general principles

such

as in CEDR

Settlement

Rules, the basic principles “right to be heard in arbitration” and “confidentiality of

information

obtained in mediation” are more likely to collide and risk the final

award

under the “due process” ground.