Giulia Bartoletti<\/strong>, Legal Publications Officer at Jus Mundi<\/a><\/strong><\/p>\n\n\n\n
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The second issue of the Jus Mundi Arbitration Review (\u201cJMAR<\/strong>\u201d)\u2019s second volume<\/a> arrives at what editors Kun F<\/strong><\/a>a<\/a><\/strong>n<\/strong><\/a> and Loukas Mistelis<\/strong><\/a> aptly describe as a moment when the arbitration community must \u201cadapt with creativity and conviction.\u201d This collection brings together keynote addresses, institutional profiles, and scholarly analysis that collectively demonstrate arbitration\u2019s resilience and its vulnerabilities in an era of unprecedented change.<\/p>\n\n\n\n The issue opens with Alexis Mourre<\/strong><\/a>\u2019s 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\u2019s Achilles\u2019 heel: cases like Rockhopper v. Italy<\/em><\/a>, where a tribunal awarded compensation for Italy\u2019s refusal to grant an offshore oil exploitation permit despite serious environmental concerns.<\/p>\n\n\n\n His core argument? That international law already provides tools\u2014through integrative treaty interpretation under Article 31(3) of the Vienna Convention on the Law of Treaties<\/a> (\u201cVCLT<\/strong>\u201d) (1969) and the police powers doctrine\u2014to balance investment protection with climate commitments. The problem isn\u2019t the system itself, but rather tribunals\u2019 reluctance to fully engage with states\u2019 obligations under the UNFCCC and Paris Agreement when interpreting Bilateral Investment Treaties (\u201cBITs<\/strong>\u201d).<\/p>\n\n\n\n Mourre\u2019s 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 (\u201cECT<\/strong>\u201d) (1994),<\/a> with the European Parliament voting for coordinated withdrawal, serves as evidence that this isn\u2019t a hypothetical threat.<\/p>\n\n\n\n Felix Dasser<\/strong><\/a>, speaking at Vilnius Arbitration Days, picks up a related thread: the EU Court of Justice\u2019s \u201ccrusade\u201d against intra-EU arbitration. His characteristically direct analysis traces how decisions in Achmea v. Slovakia<\/em><\/a> and<\/em> Komstroy v. Moldova<\/em><\/a> have subordinated international arbitration to the supremacy of EU law, despite contradicting fundamental principles of public international law.<\/p>\n\n\n\n The Swiss Federal Supreme Court\u2019s April 2025 rebuke of the CJEU\u2019s reasoning in EDF v. Spain<\/em>, 4A_244\/2023<\/a>, provides some counterweight, but Dasser\u2019s conclusion is sobering: when political convenience threatens the rule of law, arbitration becomes collateral damage.<\/p>\n\n\n\n Chiann Bao<\/strong><\/a>\u2019s article on predictive AI in arbitrator challenges presents one of the issue\u2019s 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Bao acknowledges the obstacles: data protection concerns, the EU AI Act\u2019s high-risk classification, and the \u201cblack box\u201d problem of explaining AI predictions. But her core insight remains that the current system\u2019s reliance on human recollection and inconsistent standards creates the very uncertainty that fuels strategic challenges.<\/p>\n\n\n\n Natalia Chumak<\/strong><\/a>\u2019s analysis of the Ciarb (Chartered Institute of Arbitrators) Guideline on the Use of AI in Arbitration (2025)<\/a> 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.<\/p>\n\n\n\n The Guidelines\u2019 approach to disclosure is particularly noteworthy. Under Section 7, paragraph 7.3, arbitrators can \u201cimpose certain AI-related disclosure obligations\u201d after consulting parties. This represents a significant shift from reactive to proactive case management.<\/p>\n\n\n\n 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\u2014undermining the efficiency benefits that the technology offers.<\/p>\n\n\n\n Louis Atyeo<\/strong><\/a>\u2019s profile of the LCAM (London Chamber of Arbitration and Mediation)<\/a> illustrates how institutions can respond to market pressures without sacrificing quality. LCAM charges a fixed \u00a35,000 administrative fee for disputes between \u00a31 and \u00a310 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)\u2019s fee of over $45,000 for similar cases.<\/p>\n\n\n\n Three initiatives stand out:<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Niuscha Bassiri<\/strong><\/a>\u2019s keynote on settlement facilitation captures an important evolution. The FAI (Arbitration Institute of the Finland Chamber of Commerce) Arbitration Rules (2024)<\/a> exemplify the emerging approach: <\/p>\n\n\n\n \u201cWith 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\u2019s impartiality based on the arbitrator\u2019s participation.\u201d<\/p>\n<\/blockquote>\n\n\n\n Bassiri provides draft provisions for settlement windows in procedural timetables, safe harbors against bias challenges, and, most innovatively, remuneration structures that ensure arbitrators aren\u2019t financially disincentivized from facilitating settlement.<\/p>\n\n\n\n The case for change is compelling: approximately 30% of institutional cases already settle or are withdrawn. The 2023 ICC Commission Task Force survey<\/a> found 70% of respondents believe arbitrators should inform parties about ADR options at the first case management conference.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Pinky Anand<\/strong><\/a> and Abhishek Swami<\/strong>\u2019s contribution, which examines time-bar clauses in Indian construction contracts, addresses a complex problem: FIDIC\u2019s strict notice requirements appear to conflict with Section 28 of the Indian Contract Act, which voids provisions curtailing limitation periods.<\/p>\n\n\n\n Their analysis explains how time bars work to prevent “time at large\u201d situations while supporting effective contract management. It also records international acceptance, citing recent cases like FES v. HFD Construction Group<\/em> and Panther Real Estate v. Modern Executive Systems<\/em>, before directly addressing the Indian statutory challenge.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The argument is strengthened by reference to National High Speed Rail Corporation Limited v Montecarlo Limited <\/em>[2022] 12 SCR 810, where the Supreme Court recognized mega foreign-funded infrastructure projects warrant \u201cfar much less\u201d judicial review than ordinary government contracts. If substantive contract terms receive differential treatment, why not procedural time requirements?<\/p>\n\n\n\n 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\u2014contemporaneous claim evaluation remains essential regardless of contractual provisions.<\/p>\n\n\n\n The book review by Alexandre Vagenheim<\/strong><\/a>, examining the ICC Institute Dossier XXII \u2018Good Faith in International Arbitration – A Versatile Chameleon?\u2019<\/a>, highlights perhaps arbitration\u2019s most \u201cchameleon-like\u201d principle. The reviewed volume\u2019s approach, embracing indeterminacy rather than seeking rigid definition, reflects sophisticated thinking about how normative principles operate across legal systems.<\/p>\n\n\n\n Three insights deserve emphasis:<\/p>\n\n\n\n The Dossier\u2019s practical value lies in accepting that good faith resists universal formulation while still providing frameworks for analysis. As Vagenheim notes, it\u2019s less a rule book than an aide-m\u00e9moire for navigating grey areas.<\/p>\n\n\n\n Craig Tevendale and Elizabeth Kantor\u2019s<\/strong> 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.<\/p>\n\n\n\n Scotland\u2019s statutory regime (Section 15(2) of the Arbitration Act 2010) provides certainty: courts \u201cmust grant\u201d anonymization orders unless the public interest or the interests of justice override. England\u2019s position is more nuanced\u2014the starting point in City of Moscow v. Bankers Trust <\/em>[2004] EWCA 314<\/a> favors publication where judgments involve matters of general importance, but the protection of \u201cevidently confidential information\u201d doesn\u2019t require proof of \u201cspecial damage.\u201d<\/p>\n\n\n\nClimate Change Meets Investment Protection<\/strong><\/h2>\n\n\n\n
The AI Challenge: From Black Boxes to Arbitrator Disclosures<\/strong><\/h2>\n\n\n\n
Institutional Innovation: LCAM\u2019s Cost-Effective Model<\/strong><\/h2>\n\n\n\n
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Settling and Facilitating: A Mindset Shift<\/strong><\/h2>\n\n\n\n
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Time Bars and Indian Infrastructure<\/strong><\/h2>\n\n\n\n
Investment Arbitration\u2019s Good Faith Challenge<\/strong><\/h2>\n\n\n\n
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Transparency vs. Confidentiality: Calibrated Solutions<\/strong><\/h2>\n\n\n\n
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