THE AUTHOR:
Giulia Bartoletti, Legal Publications Officer at Jus Mundi
The second issue of the Jus Mundi Arbitration Review (“JMAR”)’s second volume arrives at what editors Kun Fan and Loukas Mistelis aptly describe as a moment when the arbitration community must “adapt with creativity and conviction.” This collection brings together keynote addresses, institutional profiles, and scholarly analysis that collectively demonstrate arbitration’s resilience and its vulnerabilities in an era of unprecedented change.
Climate Change Meets Investment Protection
The issue opens with Alexis Mourre’s pointed intervention on ISDS and climate obligations, delivered at the Azerbaijan Arbitration Days in advance of COP29. Mourre confronts what many see as investment arbitration’s Achilles’ heel: cases like Rockhopper v. Italy, where a tribunal awarded compensation for Italy’s refusal to grant an offshore oil exploitation permit despite serious environmental concerns.
His core argument? That international law already provides tools—through integrative treaty interpretation under Article 31(3) of the Vienna Convention on the Law of Treaties (“VCLT”) (1969) and the police powers doctrine—to balance investment protection with climate commitments. The problem isn’t the system itself, but rather tribunals’ reluctance to fully engage with states’ obligations under the UNFCCC and Paris Agreement when interpreting Bilateral Investment Treaties (“BITs”).
Mourre’s warning is clear: if ISDS cannot accommodate climate policy through existing frameworks, states will simply abandon the system. The exodus from the Energy Charter Treaty (“ECT”) (1994), with the European Parliament voting for coordinated withdrawal, serves as evidence that this isn’t a hypothetical threat.
Felix Dasser, speaking at Vilnius Arbitration Days, picks up a related thread: the EU Court of Justice’s “crusade” against intra-EU arbitration. His characteristically direct analysis traces how decisions in Achmea v. Slovakia and Komstroy v. Moldova have subordinated international arbitration to the supremacy of EU law, despite contradicting fundamental principles of public international law.
The Swiss Federal Supreme Court’s April 2025 rebuke of the CJEU’s reasoning in EDF v. Spain, 4A_244/2023, provides some counterweight, but Dasser’s conclusion is sobering: when political convenience threatens the rule of law, arbitration becomes collateral damage.
The AI Challenge: From Black Boxes to Arbitrator Disclosures
Chiann Bao’s article on predictive AI in arbitrator challenges presents one of the issue’s most innovative contributions. She proposes using machine learning to address information gaps in the current disclosure system: mapping arbitrator relationships, synthesizing conflict standards across jurisdictions, and predicting challenge outcomes.
The vision is compelling. An AI system that generates comprehensive relationship reports (think social network graphs with traffic-light risk indicators) while processing decades of challenge decisions to identify patterns invisible to human analysis. Such a tool could reduce frivolous challenges by providing parties with better information upfront, while helping arbitrators fulfill disclosure obligations more completely.
Bao acknowledges the obstacles: data protection concerns, the EU AI Act’s high-risk classification, and the “black box” problem of explaining AI predictions. But her core insight remains that the current system’s reliance on human recollection and inconsistent standards creates the very uncertainty that fuels strategic challenges.
Natalia Chumak’s analysis of the Ciarb (Chartered Institute of Arbitrators) Guideline on the Use of AI in Arbitration (2025) provides necessary context. Unlike earlier soft law, the Ciarb text offers practical guidance: template procedural orders, specific provisions on the admissibility of AI-generated material, and clear direction on when arbitrators should proactively regulate the use of AI in proceedings.
The Guidelines’ approach to disclosure is particularly noteworthy. Under Section 7, paragraph 7.3, arbitrators can “impose certain AI-related disclosure obligations” after consulting parties. This represents a significant shift from reactive to proactive case management.
Yet Chumak identifies a fundamental tension. The Guidelines assume all participants have substantial AI literacy, which could increase costs and delay the process by requiring expert evidence on AI issues—undermining the efficiency benefits that the technology offers.
Institutional Innovation: LCAM’s Cost-Effective Model
Louis Atyeo’s profile of the LCAM (London Chamber of Arbitration and Mediation) illustrates how institutions can respond to market pressures without sacrificing quality. LCAM charges a fixed £5,000 administrative fee for disputes between £1 and £10 million, which is significantly lower than the LCIA (London Court of International Arbitration)’s median fee of $22,000 and the ICC (International Chamber of Commerce)’s fee of over $45,000 for similar cases.
Three initiatives stand out:
- The Central London County Court Mediation Scheme: Fixed-fee mediations achieving 50% same-day settlement rates while supporting judicial workload reduction.
- Expedited Blockchain Arbitration Rules: Developed with Immunefi and Greenberg Traurig, these rules deliver awards within four months, include optional anonymity, and enable “on-chain” enforcement through smart contracts.
- Competitive Standard Arbitration: £1,500 registration fees while maintaining oversight through an experienced Advisory Board.
The model demonstrates that cost-effectiveness need not compromise administrative quality, particularly when leveraging institutional resources and attracting experienced arbitrators willing to serve on competitive fee terms.
Settling and Facilitating: A Mindset Shift
Niuscha Bassiri’s keynote on settlement facilitation captures an important evolution. The FAI (Arbitration Institute of the Finland Chamber of Commerce) Arbitration Rules (2024) exemplify the emerging approach:
“With the agreement of all parties, the arbitral tribunal may take steps to facilitate the settlement of the dispute. Any such agreement…shall constitute a waiver of [the] right to challenge an arbitrator’s impartiality based on the arbitrator’s participation.”
Bassiri provides draft provisions for settlement windows in procedural timetables, safe harbors against bias challenges, and, most innovatively, remuneration structures that ensure arbitrators aren’t financially disincentivized from facilitating settlement.
The case for change is compelling: approximately 30% of institutional cases already settle or are withdrawn. The 2023 ICC Commission Task Force survey found 70% of respondents believe arbitrators should inform parties about ADR options at the first case management conference.
Her proposal to include settlement-related remuneration provisions addresses a rarely voiced concern that arbitrators may unconsciously resist settlement facilitation, knowing that it reduces fee income. Making this explicit and appropriately compensating for settlement efforts removes a subtle misalignment of incentives.
Time Bars and Indian Infrastructure
Pinky Anand and Abhishek Swami’s contribution, which examines time-bar clauses in Indian construction contracts, addresses a complex problem: FIDIC’s strict notice requirements appear to conflict with Section 28 of the Indian Contract Act, which voids provisions curtailing limitation periods.
Their analysis explains how time bars work to prevent “time at large” situations while supporting effective contract management. It also records international acceptance, citing recent cases like FES v. HFD Construction Group and Panther Real Estate v. Modern Executive Systems, before directly addressing the Indian statutory challenge.
The proposed solution is legislative: amend Section 28 to carve out infrastructure contracts above specified value thresholds, paralleling the 2013 banking exception and the 2018 Specific Relief Act amendments that treat infrastructure projects differently.
The argument is strengthened by reference to National High Speed Rail Corporation Limited v Montecarlo Limited [2022] 12 SCR 810, where the Supreme Court recognized mega foreign-funded infrastructure projects warrant “far much less” judicial review than ordinary government contracts. If substantive contract terms receive differential treatment, why not procedural time requirements?
The interim guidance for contract managers is pragmatic: caution is advised regarding implicit waivers, as flexibility in discussing late claims may weaken defenses against time bar defenses, and clauses should not create a false sense of security—contemporaneous claim evaluation remains essential regardless of contractual provisions.
Investment Arbitration’s Good Faith Challenge
The book review by Alexandre Vagenheim, examining the ICC Institute Dossier XXII ‘Good Faith in International Arbitration – A Versatile Chameleon?’, highlights perhaps arbitration’s most “chameleon-like” principle. The reviewed volume’s approach, embracing indeterminacy rather than seeking rigid definition, reflects sophisticated thinking about how normative principles operate across legal systems.
Three insights deserve emphasis:
- Substantive vs. Procedural Distinction: Good faith governs both contract performance and conduct during proceedings. Combining these generates confused analysis.
- Comparative Divergence: Dutch law’s robust good-faith tradition contrasts sharply with English courts’ reluctance to recognize general duties, preferring context-specific assessments of fairness. This is particularly important when determining the applicable law for arbitration agreements.
- Investment Arbitration Application: Good faith serves as both an interpretive principle (for treaty obligations) and a conduct standard (assessing the legitimacy of investments, parallel proceedings, and abuse of process).
The Dossier’s practical value lies in accepting that good faith resists universal formulation while still providing frameworks for analysis. As Vagenheim notes, it’s less a rule book than an aide-mémoire for navigating grey areas.
Transparency vs. Confidentiality: Calibrated Solutions
Craig Tevendale and Elizabeth Kantor’s analysis of confidentiality challenges demonstrates that court intervention complicates arbitral expectations of privacy. Their multi-jurisdictional survey (Scotland, England and Wales, Australia, Singapore, Hong Kong) reveals divergent approaches when courts exercise supervisory functions.
Scotland’s statutory regime (Section 15(2) of the Arbitration Act 2010) provides certainty: courts “must grant” anonymization orders unless the public interest or the interests of justice override. England’s position is more nuanced—the starting point in City of Moscow v. Bankers Trust [2004] EWCA 314 favors publication where judgments involve matters of general importance, but the protection of “evidently confidential information” doesn’t require proof of “special damage.”
The cautionary examples are instructive. In Republic of India v. Deutsche Telekom AG [2023] SGCA (I) 4, Singapore courts refused confidentiality orders after information entered the public domain through U.S. and Swiss proceedings. The strategic lesson is to coordinate enforcement strategies across jurisdictions to avoid inadvertent waiver.
The authors propose reconciliation through greater transparency by publishing anonymized awards and providing aggregated statistical data, all without compromising party confidentiality. This approach aligns with institutional trends, including LCIA challenge decisions, HKIAC (Hong Kong International Arbitration Centre) case digests, and ICC arbitrator records.
Conclusion: Adaptation as Survival Strategy
Professors Fan and Mistelis conclude their foreword by thanking Managing Editor Clémence Prévot and emphasizing the “truly collegial” editorial process. This spirit of collegiality runs throughout the volume—contributors thoughtfully consider opposing viewpoints, recognize uncertainties, and avoid making conclusive statements when nuance is needed.
The editors frame this as arbitration adapting to “new realities and expectations,” but these contributions suggest multiple simultaneous crossroads: climate vs. investment protection, party autonomy vs. rule of law, efficiency vs. due process, confidentiality vs. transparency, human judgment vs. algorithmic prediction.
What unites the responses is pragmatism over purism. Mourre advocates using existing interpretive tools rather than dismantling ISDS. Bassiri proposes incremental procedural innovations rather than wholesale settlement mandates. Bao envisions AI augmenting rather than replacing human decision-making. LCAM demonstrates cost reduction through operational efficiency rather than compromised service.
This adaptability, arbitration’s historical strength, may prove decisive. As Dasser warns, “when in a hole, stop digging.” The alternative to thoughtful evolution is institutional irrelevance.
JMAR Volume 2, Issue 2 provides both a map and a compass for navigating these crossroads. It won’t resolve every dilemma, but it equips practitioners, arbitrators, and policymakers to engage intelligently with arbitration’s most pressing challenges.
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*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
