THE AUTHORS:
Agata Zwolankiewicz, Associate at Addleshaw Goddard
Yulia Levashova, Associate Professor at Nyenrode University & Director of the Dispute Prevention Program at the Asia Pacific FDI Network
On 23 March 2026, against the backdrop of Paris Arbitration Week, Nyenrode University convened a panel at White & Case in Paris to explore a question gaining increasing traction in arbitration circles: how can disputes be prevented before they fully materialize? The discussion, titled “Preventing Disputes Before They Arise: Strategic Tools in Investment and Commercial Arbitration,” brought together practitioners, academics, and institutional representatives to reflect on the evolving role of dispute prevention across both commercial and investment arbitration.
Opening the event, Nataliia Tuzheliak (White & Case) situated the discussion within the broader historical development of arbitration, noting that while dispute prevention is not a new concept, it has acquired renewed urgency in today’s climate of geopolitical uncertainty. Dr. Yulia Levashova (Nyenrode University) followed by identifying a central tension: although the range of available dispute prevention tools continues to expand, their practical use remains comparatively limited. This disconnect set the tone for the discussions that followed.
Panel I: Innovative Approaches to Dispute Prevention
The first panel, moderated by Dr. Yulia Levashova explored how existing and emerging mechanisms might be deployed more effectively to prevent disputes from escalating.
Agata Zwolankiewicz (Addleshaw Goddard / KU Leuven) opened by challenging a commonly held assumption – that States are generally unwilling to settle disputes amicably. Drawing on arbitration statistics, she suggested that this conventional wisdom does not hold up in practice. Against this backdrop, she presented investment mediation as an underutilized yet increasingly viable tool, supported by developments such as the Singapore Convention and evolving institutional frameworks. While mediation is unlikely to displace arbitration, she suggested that it is steadily gaining recognition as a complementary mechanism, particularly at the early stages of disputes.
Marc Krestin (Fieldfisher) built on this discussion by turning to the drafting of dispute resolution clauses. In his view, the effectiveness of dispute prevention often depends on the precision and structure of multi-tier clauses. Properly designed mediation provisions, he noted, are generally enforceable across European jurisdictions and can serve as meaningful tools rather than procedural formalities. At the same time, he observed that treaty practice remains cautious in this regard, with mandatory investment mediation clauses still very much the exception.
The discussion then shifted to investment arbitration, where Prof. Kamalia Mehtiyeva (University of Paris-Est Créteil) examined the emerging role of counterclaims. Although empirical data remains limited, she suggested that their increasing acceptance – particularly in treaty-based arbitration – may subtly reshape investor behaviour by recalibrating risk and incentivizing earlier settlement.
Returning to the construction context, Nataliia Tuzheliak highlighted the practical success of Dispute Adjudication Boards (“DABs”). Drawing on empirical insights, she noted that the vast majority of disputes are resolved at the early stage, with only a small fraction progressing to arbitration. The presence of standing adjudicators with technical expertise, she suggested, plays a key role in facilitating early and efficient resolution while preserving ongoing commercial relationships.
Offering an institutional perspective, Dr. Hélène van Lith (ICC/ University Paris Dauphine) pointed to a broader shift in how dispute resolution services are designed and delivered. The ICC, she explained, has increasingly embraced hybrid approaches that combine mediation, expert determination, and dispute boards. This flexibility reflects growing user demand for tailored processes and signals a wider move toward integrating dispute avoidance mechanisms into standard practice.
Panel II: Regional Perspectives
The second panel, moderated by Anna Guillard Sazhko (Turkic Arbitration Association), turned to regional experiences, illustrating how dispute prevention is shaped by local legal cultures, institutional frameworks, and practical constraints.
Eric Franco (Legal Delta) provided a perspective from Latin America, where, he noted, many disputes are in fact resolved amicably. He emphasized that effective dispute prevention depends on keeping parties actively engaged in the process, rather than shifting control entirely to external counsel. At the same time, he highlighted a less visible barrier to settlement: decision-makers may hesitate to pursue amicable solutions due to fears of corruption allegations or personal liability. In this context, building trust, improving communication, and addressing uncertainty early on become essential components of dispute prevention.
Christopher Campbell-Holt (AIFC Court and IAC) offered insight into the institutional model developed in Kazakhstan. He described mediation as a central pillar of both the court’s case management approach and the arbitration centre’s practice. While not mandatory, mediation is actively encouraged at every stage. This emphasis has yielded tangible results: of nearly 5,000 final decisions issued across mediation, arbitration, and court proceedings – enforced both domestically and internationally – approximately 70% originate from mediation settlements. Such outcomes, he noted, are not incidental but reflect a deliberate institutional strategy.
Focusing on Central Asia more broadly, Dr. Saltanat Imanova (American University of Central Asia) highlighted a growing regional awareness of the importance of dispute prevention, particularly in light of past investment disputes. She discussed recent investment law reforms in the Kyrgyz Republic and a broader regional shift towards dispute prevention, mitigation, and management, with increasing emphasis on negotiation and mediation as effective tools. She also pointed to ongoing reforms and a gradual alignment with international ADR standards (with Kazakhstan and the Kyrgyz Republic having ratified the Singapore Convention), while emphasizing the continued need for capacity building, legal education, and regional cooperation.
Diana Bayzakova (Tashkent International Arbitration Centre) placed these developments within the context of Uzbekistan’s efforts to attract foreign investment. She stressed that effective mechanisms for the early prevention and resolution of disputes are not merely procedural enhancements but fundamental components of a modern investment climate. As international practice shows, a significant proportion of investor–State disputes could be addressed before escalation if appropriate frameworks are in place. She shared the novel mechanisms developed in Uzbekistan, such as dispute prevention for tax disputes using early expert determinations and the Dispute Avoidance Protocol.
Keynote Speaker
In her concluding remarks, Laure Jacquier (ICC Netherlands) reflected on the broader significance of dispute prevention in an increasingly conflict-prone world. Observing that conflict has become a normalized feature of contemporary life, she noted that entire generations are growing up in its presence. In such a context, she argued, the task is not only to accept the inevitability of conflict but also to actively promote mechanisms through in-house councils that can manage and mitigate it more effectively.
Conclusion
The discussions throughout the event underscored both the progress made and the challenges that remain in advancing dispute prevention. Across jurisdictions and sectors, a clear trend is emerging: practitioners, institutions, and states are increasingly willing to invest in tools that address disputes before they crystallize. The event thus reflected a broader shift in mindset – one that places dispute prevention and ADR at the heart of modern arbitration practice, rather than at its margins.
ABOUT THE AUTHORS
Agata Zwolankiewicz is an associate in the Litigation, Arbitration, and Investigations department at Addleshaw Goddard, and a PhD Candidate at KU Leuven. She holds an LL.M. with a concentration in international investment and trade law from the University of Ottawa. Agata is an advocate with the Warsaw Bar Association and a member of the Poland VYAP Founding Committee.
Dr. Yulia Levashova is an Associate Professor at Nyenrode University in the Netherlands and a Director of the Dispute Prevention Program at the Asia Pacific FDI Network. Yulia is also an independent practitioner who serves as an arbitrator and provides legal consultancy to the Dutch government and international organizations, e.g., UNECE and UNCTAD. Yulia is a member of the Chartered Institute of Arbitrators (“Ciarb”) and an observer of the UNCITRAL WGIII.
*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.
