Abstract India’s ambition to position itself as a global arbitration hub has been accompanied by repeated legislative reforms to restrict judicial intervention and enhance arbitral autonomy. Yet, Section 34 of the Arbitration and Conciliation Act, 1996, which is the principal mechanism for challenging awards, remains the focal point of tension between arbitral finality and judicial oversight. This paper empirically analyses 2020 Section 34 petitions filed before the Delhi High Court between 2021 and 2024, covering 365 judgments and nearly 17,000 orders. The study reveals three striking patterns: the state emerges as the most frequent challenger of awards despite policy commitments to arbitration; judicial timelines routinely exceed statutory limits, undermining efficiency; and substantive review continues under the guise of procedural scrutiny, particularly through the ‘patent illegality’ ground. While most awards are upheld, the persistence of partial modifications, extensive delays, and heavy government litigation exposes a credibility gap in India’s arbitration framework. By combining doctrinal context with systematic data, the article highlights how Section 34 has become both a site of legal uncertainty and a tool of negotiation. It concludes by identifying targeted judicial, legislative, and institutional reforms necessary to align India’s arbitration practice with its reformist rhetoric.
Abstract Mandatory arbitration agreements in consumer and employment contracts have become a procedural trap: collective redress for vulnerable claimants crumbles as they are left stranded between barred class/representative actions and prohibitively expensive individual arbitration. While the United States has attempted to navigate this trap through the introduction of class arbitration, UNCITRAL Model Law jurisdictions lag behind. This paper seeks to explore how Model Law jurisdictions can embrace class arbitration even when the arbitration agreement is silent. By dissecting the United States’ approach to class arbitration, this paper challenges the assumption that class arbitration requires parties’ express consent to class arbitration. Instead, it re-thinks parties’ consent within the UNCITRAL Model Law’s framework and its pro-arbitration stance, demonstrating how tribunals can infer consent to class arbitration. The paper proposes pragmatic solutions: judicial contractual interpretive tools, institutional rulemaking, and legislative reforms, that equip Model Law jurisdictions to adopt class arbitration.
Abstract In Alan Redfern’s famous 2003 Freshfield lecture entitled ‘Dissents: The Good, The Bad, and the Ugly,’ he argued that dissenting opinions in arbitration were dangerous. They call attention to the confidential deliberative process and, in ‘ugly’ cases, endanger the enforceability of the award. Seemingly, not much has changed since then in the arbitral process. Awards are not usually published, there is no stare decisis, and there is a lingering suspicion of bias where party-nominated arbitrators dissent in favour of their nominating party. However, in this 24th annual Clayton Utz and University of Sydney International Arbitration Lecture, I explore ways in which we might rethink dissents in arbitration in response to important changes in the world around us and in the international arbitration community. Modern cognitive science demonstrates that by welcoming participants with diverse views and actively engaging with those views we can improve the quality of the decision making. Accordingly, even where this could lead to dissent, if in our efforts to foster consensus in our deliberations, we avoid groupthink by considering different perspectives, we can put in place the conditions for a well-reasoned award.
Liquidated damages clauses allocate risk between parties by providing for fixed rate compensation in the event of a breach. Whereas under the common law liquidated damages amounts are generally not subject to adjustment, the civil codes of countries in Europe, the Middle East, and Asia empower decision-makers to reduce and/or increase liquidated damages in certain circumstances. This article surveys 31 international arbitration cases applying the civil codes of 12 countries in which tribunals considered whether or not to adjust the amount of liquidated damages. The authors then propose a two-step framework based on the factors that arbitral tribunals consider before granting or refusing an adjustment request: first, a contractual inquiry into the parties’ intentions underlain by the tension between contract sanctity principles and fairness principles; and second, a factual inquiry into the proportionality of the contractual amount of liquidated damages relative to the actual harm.
As China’s role in international trade and finance continues to mature, the assumed preference to settle disputes bilaterally and informally will not be sufficient to deal with the disputes that inevitably arise in trading and investment. The dispute resolution provisions in contractual documentation provide the legal bases for resolution. A key difference between Chinese and other models is the role of the State in setting policy in China’s international commercial relations. This means that raised geopolitical tensions may produce increasingly unanticipated outcomes. The paper inquires as to how China’s international commercial dispute resolution mechanisms will evolve, and whether they will diverge from current models, or fall in line with current patterns. Such evolution could have a significant influence. The authors’ view, in summary, is that Chinese enterprises will continue to commit to current mechanisms, but seek to assert greater influence and a homeward trend to arbitration in China subject to Chinese Law. Additionally, over time, there may be a greater push for mediated settlements as is the case in domestic arbitration in China. The drive to use technology, particularly AI, is very likely to feed into the methodology preferred by Chinese enterprises in arbitration where it can be shown to increase efficiency.
Most-favoured-nation (MFN) protection seems decidedly straightforward both in meaning and operation, certainly as compared to other investment protections, such as fair and equitable treatment, which are plagued with indeterminacy. But the clarity of meaning and ease of application of MFN clauses are largely illusory. An examination of arbitral case law reveals seriously underestimated uncertainties surrounding the doctrine’s scope and workings. But the problems with MFN run far deeper. MFN may have the virtue of enhancing the level of protection of foreign investments. But States do not only extend benefits; they also withhold them. MFN disrespects the balance that States sought to achieve in the agreements they conclude. Particularly deceptive is MFN’s reputed capacity to reduce discrimination among foreign investors. MFN does not meaningfully reduce discrimination; indeed it exacerbates the problem. Especially illusory is the notion that MFN necessarily conduces to a multilateralization of investment protection. MFN even falls short in light of investment treaties’ core purposes. There may or not be convincing evidence that the availability of investment arbitration significantly induces foreign investment. But it cannot seriously be maintained that the level of foreign investment in a given State turns on MFN’s presence in, or absence from, an investment treaty.
Robert Walters’ Cybersecurity and Data Laws of the Commonwealth provides an in-depth analysis of the legal and policy challenges of the rapidly evolving digital economy. Focusing on data laws, cybersecurity, and arbitration across Commonwealth nations, Walters examines the intersection of these legal fields with international trade and investment. The book highlights disparities in legislative approaches by comparing national frameworks with Commonwealth Model Bills while proposing harmonisation and convergence to support economic development. Walters’ interdisciplinary methodology and forward-looking recommendations make this work relevant reading for policymakers, scholars, and practitioners who deal with the complexities of digital regulation.
I suggest that the concept of the ‘seat’ of an international arbitration, which brings with it the law of that seat, has lost its significance. I attribute this to the Model Law, the developing ‘soft law’ of international arbitration and the ‘take-over’ by arbitral institutions of the previous role of the courts of the ‘seat.’ I start with the Enka case where the English Judges could not agree whether an arbitration clause in an international contract is governed by the law of that contract or by the law of the ‘seat’. I look at attempts to create a new ‘law merchant’ to govern international commerce, and to ‘de-localize’ international arbitrations by cutting their bond with the ‘seat.’ I consider the recent enthusiasm of the English courts for ‘anti-suit injunctions' and the ‘boomerang effect’ of such injunctions, as they return ignominiously to the English courts with a plea by their sponsors for them to be set aside. Finally, I conclude that if England is to remain a leading centre for international arbitrations, it needs a new law dealing only with international commercial arbitrations rather than the present ‘general-purpose’ Arbitration Acts.
International commercial arbitration (ICA) processes are routinely assessed as being arbitration friendly, pro-arbitration, and/or pro-enforcement (or otherwise). These evaluations are ubiquitous, yet little attention has been given to a very important matter: the extent to which the arbitration friendly, pro-arbitration, and pro-enforcement criteria are meaningful ICA evaluative tools. In this article, I critique all three. Showing them to be inadequate evaluative tools, I propose an alternative framework—comprised of efficiency, economic viability, and effectiveness criteria—that would allow us to more meaningfully understand and debate developments in the ICA field. In the course of its analysis, this article draws upon practical examples concerning ICA’s confidentiality, reforms to lex arbitri, diversity, equity, and inclusion initiatives, and ICA’s transparency in order to demonstrate the inadequacy of our field’s existing evaluative regimes and the meaningful way in which my criteria stand to change the quality of our disciplinary conversations.
The decision of the Court of Appeal in Hulley Enterprises Limited v The Russian Federation1 is the latest instalment in the Yukos saga, which stretches back to 2014. The significance of the decision lies in the Court's reliance on an issue estoppel to find that Russia was not immune from the jurisdiction of the English courts for the purpose of recognizing and enforcing arbitral awards. It appears that Hulley is the first time a Court has decided an issue of immunity by relying on issue estoppel. Whilst the Court ultimately reached the right outcome in finding that Russia was not immune from jurisdiction, its reliance on issue estoppel is problematic and gives rise to significant challenges. The Court should have found that it was necessary to argue the issue of state immunity in full. Permission to appeal to the Supreme Court has been refused, meaning that the Court of Appeal's decision now represents the law in England & Wales and will likely be influential in other common law jurisdictions. Nevertheless, the Court's decision should be considered a mis-step, and its analysis of both the law of state immunity and issue estoppel should treated with caution. 1 Hulley Enterprises Limited & Ors v The Russian Federation [2025] EWCA Civ 108.
In ISU v Commission, the European Court of Justice dealt with the relationship between sports arbitration, the application of EU law, and judicial review of decisions by the Court of Arbitration for Sport (CAS). For such review to be effective, the Court held that reviewing courts should at least cover the question whether arbitral tribunals correctly apply fundamental provisions of public policy, such as EU competition law. However, the standard of the Swiss Federal Tribunal—the near-exclusive reviewer of CAS decisions—falls short of what the Court considers effective. This article presents the ISU decision and discusses its adverse impact on CAS arbitrators deciding EU law issues. We argue that while the decision justly identifies structural shortcomings of CAS arbitration, it sets an undesirable precedent that broadens the scope of judicial review beyond the principled limits of international arbitration's architecture. This not only disturbs the legitimate balance between the finality of arbitral awards and judicial review but may also lead us down a slippery slope when it comes to the application of EU law in commercial arbitrations. In anticipation of forthcoming rulings, we provide an alternative balance between the accurate application of public interest norms and the efficiency of CAS arbitration.
This article assesses critically investment treaty arbitration (ITA) awards that have arisen out of disturbances and armed conflicts. A detailed analysis of these ITA awards reveals that, although international humanitarian law (IHL) applies alongside international investment law (IIL) in times of armed conflict, tribunals have largely ignored IHL-related considerations in their deliberations in relevant ITAs. Given the likelihood that ITAs resulting from armed conflict will continue to arise in the future, distinguished scholars have increasingly called for the consideration of the role of IHL in ITAs. In the light of these growing calls for a reconceptualization of the legal framework governing foreign investments in war, this article engages in an in-depth analysis of existing arbitral practice in this space. The article queries, on the basis of relevant cases, which legal questions emerge in ITAs arising out of armed conflict to which IHL may provide answers.
Vietnam’s approach to enforcing foreign arbitral awards has become pivotal to international trade as businesses decouple from China. This article provides the most comprehensive and up-to-date analysis of Vietnam’s evolution from New York Convention resistance to an emerging arbitration hub, based on three decades of court decisions since its accession to the New York Convention in 1995. By looking at enforcement patterns over three distinct stages (1995–2025), the article shows that Vietnam has carefully developed its arbitration framework to support its growing place in world trade, balancing its sovereignty with an increasingly sophisticated acceptance of arbitration, most apparent in the courts’ changing mindsets–from reflexive rejection to nuanced acceptance. The findings, which shed light on how geopolitical competition influences international arbitration enforcement, provide valuable insights for practitioners and scholars examining how emerging economies adapt international legal frameworks to local conditions in the region’s evolving commercial landscape.
This article summarises the issues raised by the authors with the Law Commission in the context of its review and consultative process concerning the Arbitration Act 1996 culminating in the Law Commission’s Final Report of 5 September 2023, the Arbitration Bill proposing to amend the 1996 Act on 21 November 2023, and the Arbitration Act 2025 which received Royal Assent on 24 February 2025.
The token economy is rapidly advancing and if fully realized will change the financial sector significantly. This paper will examine the development, application and use of tokens, and blockchain technology along with their impact to the rules of evidence in international commercial arbitration. The technology is formidable and will require new skills. It calls on arbitration institutions, as a starting point, to develop guidance notes for the technical application of blockchain and tokens used in evidence. This paper highlights how a recent addition to the legal framework is the Token Service Agreement, which incorporates an arbitration clause and the use of blockchain. This, along with the many other agreements that have recently been developed, for instance, in cybersecurity and data, will all be important components to the evidence that an arbitral tribunal will need to consider. More specifically, expert evidence is and will become crucial to being able to trace the actual dispute of the token (its supporting technology) and blockchain. The paper concludes calling for further research to be undertaken about how blockchain and tokens will need to be considered as evidence in international commercial arbitration.
This article maps the future of commercial arbitration. With its decision in the Pechstein case, the European Court of Human Rights sanctioned the Swiss Federal Supreme Court for its rather generous approach towards the Court of Arbitration for Sport and imposed human rights restrictions on arbitration proceedings. The major upheaval is that Article 6 of the European Convention of Human Rights applies to ‘involuntary’ arbitrations with full force—including the right to a public hearing. Moreover, the concept of an involuntary arbitration agreement has not remained an oxymoron, as the court ruled that the agreements athletes must sign for their participation in sports competitions are to be classified as heteronomous. Building on this jurisprudence, the German Federal Constitutional Court held that even a serious imbalance of bargaining power may render arbitration agreements ‘involuntary’. Where does this case law leave commercial arbitration? One natural object of investigation is arbitration clauses in contracts that one party presents to the other on a take-it-or-leave-it basis; another is clauses included in the terms and conditions of undertakings that dominate the respective market in the sense of competition law. If such clauses were deemed to be heteronomous for the party on which they are imposed, arbitral tribunals would have to hold their oral hearings in public. Arguably, this would mean the end of commercial arbitration ‘as we know it’.
