This article examines the notion of ‘irreparable harm’, (Irreparable harm is also sometimes referred to as irremediable harm) which is generally a requirement that needs to be satisfied in the context of interim measure applications in international arbitration. Although a showing of irreparable harm is typically central for the granting of interim measures, the notion remains elusive and unevenly applied in practice. The first section of the article outlines the legal framework governing interim measures by analysing how this requirement has been articulated across doctrinal interpretation and arbitral rules. It highlights that the prevailing view supports a flexible approach to irreparable harm, namely whether the final award would provide adequate relief in the absence of interim measures. The second section examines arbitral practice and provides a structured analysis of investment and commercial decisions, organized according to the nature of the interim measures sought. Through these case studies, the article identifies recurring patterns in the reasoning of tribunals and emergency arbitrators and illustrates how the irreparable harm requirement operates in various contexts. Ultimately, the purpose of this article is to provide a practical framework for understanding how irreparable harm has been interpreted in theory and in practice, and to offer guidance to both counsel and arbitrators in assessing applications for interim measures.
The proliferation of international investment agreements (‘IIAs’), the widespread invocation of claims under these IIAs by private investors, and the subsequent issuance of arbitral awards that tended to favour investors have led many to believe that IIAs have unduly curtailed the regulatory flexibility of states. While the earlier generation of investment treaties were designed to incentivize foreign investment and prioritize the rights of the investors, newer-generation IIAs have begun to incorporate general public policy exception clauses (PPE clauses) intended to preserve states’ ability to regulate in the public interest while maintaining meaningful investor protection. This article focuses on the challenges associated with interpreting these clauses by examining recent treaty awards and ultimately proposes an analytical framework for interpretation of these clauses which can more effectively balance states’ regulatory autonomy and investor rights.
The rapid expansion of digital asset markets has transformed commercial exchange while exposing structural tensions between private dispute resolution and mandatory public regulation. As English law has evolved to recognize cryptoassets as property, disputes concerning ownership, fraud, platform governance, and regulatory compliance have proliferated, with arbitration emerging as a preferred mechanism for their resolution. However, the deployment of arbitration in consumer-facing digital asset markets raises difficult questions about the limits of party autonomy where statutory rights and public policy are engaged. This article critically examines those limits through a close analysis of Payward, Inc. d/ b/a Kraken, Payward Ventures, Inc. & Payward Ltd v. Chechetkin, situating the decision within the broader framework of the Arbitration Act 1996 (as amended in 2025) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). It argues that Payward reveals three interrelated constraints on arbitral autonomy: the non-derogable character of statutory consumer protection, the principled operation of public policy at the enforcement stage, and the heightened scrutiny applied to standard-form arbitration clauses in cross-border digital transactions. Far from signalling hostility to arbitration, the decision reflects a recalibration of arbitral autonomy in regulatory contexts. The article concludes that, in an increasingly mature and regulated digital asset market, arbitration remains viable only to the extent that it operates consistently with mandatory consumer and financial regulatory norms
This article examines the First Procedural Order (PO 1) in arbitral proceedings through the lens of national jurisprudence. In recent years a growing body of national case law has emerged that delineates the limits of party autonomy, the minimum standards for party participation in issuing a PO 1, and the enforceability of jurisdictional determinations and other procedural aspects contained within it. This article surveys and contextualizes these judicial decisions within the broader practice of arbitral tribunals under various international arbitration rules. The article concludes that decisions taken in the PO 1 may affect the interpretation of the arbitration agreement, the scope of the arbitrators’ Kompetenz-Kompetenz (and thus the competence of national courts to review arbitrability), the powers of the arbitrators during the proceedings, and the enforceability of the final award. In essence, the PO 1 sets the ‘tone’ of the arbitration.
Disputes concerning ‘just energy transition’ have grown in both number and significance. Such disputes arise both from the impact of energy transition projects on local communities and from claims by foreign investors affected by fossil fuel phase-out policies. At their core, these disputes concern the balance between the needs of the transition to low-carbon energy and its negative impacts. Just energy transition disputes typically involve multiple stakeholders, overlapping legal regimes, complex scientific questions, a strong public interest, and considerations of human rights. Against this background, this article explores the potential of mediation as a mechanism for managing and resolving just energy transition disputes. It highlights mediation’s potential to accommodate diverse stakeholders and normative frameworks, engage with scientific expertise, and maintain stakeholder relationships. This article also discusses the concerns over the use of mediation for just energy transition disputes involving public interest, regarding confidentiality, accountability, and power imbalances between the parties. It considers how mediation processes can be designed to realize mediation’s potential while addressing these concerns. It proposes key principles for mediation, including transparency-enhancing measures and default co-mediation. Fostering mediation as a forward-looking dispute settlement mechanism is essential to supporting a smooth energy transition. Providing a carefully tailored design for the mediation processes represents a crucial step towards achieving this goal.
Arbitration has been gaining exponential popularity for years now, with many litigants opting for it in lieu of court proceedings. However, this popularity has also raised multiple questions and concerns. One of the leading questions asked about arbitration is whether it is truly ethical. This article examines the general issues within an arbitration, including those related to appointment of an arbitrator by the parties and impartiality, which is where the abovementioned question of ethics arises, and the aftermath of such appointments. The article employs a qualitative research methodology, drawing on the opinion of multiple academic authors as well as established statutes, rules and case law to assess the benefits and drawbacks of arbitration as a dispute resolution tool. Party autonomy contributes heavily to this discussion, as this is the starting point where the possibility of unethical practices begins. Parties to an arbitration have the autonomy to choose their own arbitrators, and each will, of course, always choose someone likely to decide the case in their favour. There have been instances where such appointments have raised serious concerns about impartiality and fairness in an arbitration, all of which will be scrutinized in this paper.
This article analyses the recognition and enforcement offoreign arbitral awards in Iran under the 1958 New York Convention, with particular attention to the interaction between Convention obligations and Iranian constitutional and procedural constraints. After clarifying the Iranian taxonomy of awards (domestic, international, foreign) and the resulting enforcement tracks under the Civil Procedure Code (CPC), the Law on International Commercial Arbitration (LICA 1997) and the New York Convention, the article maps the practical sequence of enforcement and security. It then synthesizes recent, largely unpublished judicial decisions to identify patterns in courts' use of Convention Article V defences - especially public policy (including monetary regulations and Shar & imacr;'a-based interest prohibitions), commerciality, arbitrability (with the overlay of Article 139 of the Constitution), and procedural objections (Article IV: documentation, service, and translations). While several chambers increasingly align with international best practices, recognizing their limited role vis-& agrave;-vis annulment at the seat and narrowing merits review, outcomes remain sensitive to documentary formalism and public-policy framing. The article concludes with practical drafting and filing guidance to enhance predictability when targeting assets in Iran, and policy suggestions on transparency and specialization to consolidate this evolving jurisprudence.
International arbitration balances private ordering with public authority, demanding both arbitrator independence and credible accountability. Across leading jurisdictions, such as France, Brazil, England, and the United States, rules on arbitrator liability are fragmented: most recognize qualified or quasi-judicial immunity, but diverge on legal characterization, thresholds for fault, and available remedies. This article diagnoses two systemic gaps: (1) unilateral institutional waivers cannot calibrate duties to the lex arbitri or mandatory law, and (2) parties rarely consent expressly to liability standards. It proposes a contractual solution: party-arbitrator agreements (PAAs) concluded at the outset of proceedings that (a) characterize diligence as a bestefforts duty, (b) adopt the most-protective immunity permitted by the seat’s law, (c) confine redress to procedural harm (restitution of arbitrator fees and institutional costs), and (d) anchor forum and governing law in the courts and law of the seat. A model PAA and implementation protocol are offered to operationalize this framework while preserving voluntariness and judicial oversight. The authors envision that this could result in greater predictability and fewer satellite suits.
When in the context of the constitutional crisis in Venezuela after a fraudulent election 'won' by the President of the Assembly, states had to take a position on who the government of Venezuela was. This article examines states' reactions on the diplomatic front on this issue of government recognition. The main focus is on how investor-state arbitration tribunals have addressed the issue of government identification and recognition and the controversial question of representation in proceedings involving Venezuela. The issue of conflicting pretensions by competing authorities claiming to be the representative of Venezuela in arbitration proceedings has been a controversial question in the field of investment arbitration in recent years. I will show that the case law that emerges from these awards provides a solid and coherent set of rules and principles which will be very helpful to future investment tribunals faced with similar competing claims to governmental status. What these tribunals have said and what they did in the specific context and limited scope of the crisis in Venezuela has much broader implications both in terms of theory and practice.
This article proposes a two-track framework for using artificial intelligence in international arbitration while preserving enforceability under the New York Convention (NY Convention) and due-process minimums. Track one, Artificial Inteligence (AI)-assisted arbitration, keeps human arbitrators fully responsible for fact-finding, legal reasoning, and the signed award, while using AI for document handling, translation, retrieval, and drafting under disclosure, symmetric access, and strict version control. Track two, AI-exclusive arbitration, treats a certified AI pipeline as the merits decision-maker and is recommended only for narrowly scoped sandbox pilots (highly structured, low-value, high-volume disputes) with explicit consent, frozen configurations, integrity logging, and a human legality/dueprocess backstop. To help courts apply existing refusal grounds without reopening the merits, we introduce a proportional AI Usage and Provenance Dossier (tool/version disclosure, hash manifests, sealed logs, exception reporting, and explicit explainability limits). We connect these operational controls to EU compliance anchors (General Data Protection Regulation (GDPR) and the EU AI Act) and to practical threats (prompt injection, retrieval poisoning, drift, and log omission), emphasizing that cryptographic artifacts provide tamper-evidence for recorded steps, not guarantees of correctness or completeness.
(The author thanks Justice Dr Georges Affaki for his insightful review, his time and his encouragement, and Ms Danah Mohamed for essential materials. Any errors are the author's alone.) This article addresses the legal question of whether a party may waive the ruling. The Qatari legislator has delineated the jurisdiction of the QIC, while allowing parties to opt out under specified conditions. The HKA Global case concerned parallel proceedings before the QIC and the ordinary Qatari courts involving a QFC-registered entity. Although the QIC was in principle the competent forum, the Qatar Court of Cassation upheld the jurisdiction of the ordinary courts, holding that the claimant's initiation ofproceedings before those courts constituted a tacit waiver. The QIC subsequently declined jurisdiction, invoking the principle of res judicata. This decision affirms that waiver of QIC jurisdiction may occur by conduct and underscores the need for enhanced judicial coordination between the QIC and Qatar's ordinary courts to ensure legal certainty and procedural coherence within Qatar's dual judicial system.
In the context of investor-state arbitrations, an important factor determining the grant ofprovisional or interim measures is that of 'necessity' to prevent irreparable harm or substantial harm that may likely be caused to the requesting party pending the final award. Through an analysis of old and new decisions, this paper delves into the development of this criterion, the threshold of proof required for it, and the varying interpretation given it by ICSID and UNCITRAL tribunals. The majority of ICSID tribunals follow a strict approach, i.e., assessment of risk of irreparable harm not adequately compensable, for verifying the existence of necessity for grant of measures. UNCITRAL tribunals, on the other hand, largely take a lenient approach, i.e., assessment of risk of material or substantial harm that may be remediable later, warranting grant of measures to protect the requesting party from gross inconvenience. Irrespective of the approachfollowed, tribunals apply either the 'balance ofprobabilities' threshold or a 'heightened burden of proof' threshold, depending on the nature of specific measures requested, for the satisfaction of necessity. It should be noted, however, that despite their different approaches overall, a few ICSID and UNCITRAL tribunals' decisions converge towards a more nuanced and flexible assessment of necessity.
Document exchange has become an almost inescapable component of international commercial arbitration, irrespective of the legal tradition of the lex arbitri, the lex causae, and the legal systems of the parties' home countries. It is a legal transplant from the practice of litigation in international common law systems, which has developed into a transnational practice in arbitration. Although parties expect the attorney-client privilege, as an exception to the general disclosure obligations, to be protected within this practice, existing rules do not provide guidance on how to do so, and choice of law principles are unwieldy and yield troubling results. This article suggests that a wholesale importation of the broadest national rule of privilege connected to the case would be inconsistent with party expectations relative to the scope of privilege itself, the dimensions of the search for truth, and equal treatment. Rather, the international arbitration practice having evolved around discovery is akin to the results of a legal irritant in the lex arbitri and the practices around privilege should develop similarly. A transnational approach to privilege issues in such a case is best considered a procedural approach or solution: it would begin with the arbitral tribunal requesting submissions from both parties relative to the scope of document exchange and the parties' proposals for application of attorney-client privilege. The main disadvantage of such a transnational approach is that the rules on privilege will not be known to the parties when a document is created or an act of communication takes place. Despite this drawback, the authors submit that this procedural approach is still the best available since it is the only approach that will be able to reconcile the conflict of laws with regard to privilege as it presents itself in the specific arbitration. It is their suggestion that the Privilege Task Force working on an instrument to deal with privilege in international arbitration will provide the arbitral tribunal with significant latitude to resolve the issue in the individual case before it.
A recent article in this journal examined bias in arbitration from the perspective of tribunal Arbitration: Case Law and the Path to Fairness' (2025) 42 Journal of International Arbitration 4 435.) This article shifts the focus to bias in expert evidence and its impact on quantum assessments in international arbitration. Using an analogy involving estimates of the number of atoms in the universe, the authors illustrate how even small differences in assumptions can compound into significant distortions - including when tribunals 'split the difference' between opposing expert views. The paper argues that expert estimates can be best understood not as definitive truths but expressions of belief within a range of uncertainty, often underpinned by implicit Bayesian probability distributions. The authors highlight how directional bias in assumption selection - even within acceptable ranges - can lead to unreasonable ent financial models, assumption-level disclosures and other tools. Tribunals are encouraged to interrogate not just the assumptions but the range and distribution of outcomes, and to consider discounting outlier estimates or misrepresentations by one expert. The article concludes that, while bias in expert evidence cannot be entirely eliminated, the use of appropriate tools to detect and address it can contribute to fair and well-reasoned quantum decisions.
Defining the boundary between questions of law and fact is a critical challenge in designing credible international appellate mechanisms. This paper examines how this structural safeguard shapes who decides what on appeal in two contrasting systems: the World Trade Organization's International Trade Law's (UNCITRAL's) ongoing efforts to create an investor-state dispute settlement (ISDS) appellate mechanism. While the WTO's dispute settlement rules initially drew a clear doctrinal line between law and fact, its AB blurred this boundary through expansive reinterpretations and its procedural reliance on the 'objective assessment' safeguard, contributing to institutional breakdown. In contrast, UNCITRAL's Draft Statute begins with a vague 'manifest error' standard for factual review, offering no clear threshold or procedural filter to a possible revision to require errors to be 'apparent on their face', highlight that textual drafting alone cannot ensure consistency or finality. Through a comparative doctrinal and procedural analysis, the paper argues that lessons from the WTO's trajectory demonstrate that even precise treaty text is insufficient unless reinforced by practical safeguards, such as procedural filters and clear interpretive guidance. In practice, sustaining the law-fact divide is essential to preserve legitimacy, efficiency, and predictability for states, investors, and the broader dispute settlement system.
Arbitral tribunals have long emphasized that it is in principle legitimate for investors to structure their investments with a view to maximizing protection under international investment agreements (IIAs). At the same time, a jurisprudence has developed denying investors the right to invoke the arbitration mechanism in an IIA following a restructuring carried out when a specific dispute was already foreseeable. In such circumstances arbitral tribunals tend to find that the investor’s behaviour constitutes an abuse of process and that they either lack jurisdiction or that the claims are inadmissible as a consequence. The present contribution reviews the historical development of this jurisprudence in search of a rationale for using the foreseeability of a specific dispute as the criterion distinguishing legitimate from abusive investor behaviour. It shows that such a rationale has never been clearly articulated and that several arguments actually speak against making this type of distinction. Under the circumstances, the submission suggests that it will typically be appropriate for arbitral tribunals to exercise restraint when applying the prohibition of abuse of process in the context of corporate restructurings, in accordance with the purpose of the relevant treaties and the subsidiary nature of the principle.
When lawyers speak of comparative law, they mostly think of the ‘civil’ and the ‘common law’ − two legal traditions that are widely viewed as isolated from one another. In the realm of international arbitration, however, these traditions inevitably collide. Accordingly, authors have rightly referred to arbitration as a ‘real-life laboratory for the development of a procedural Esperanto’. But much of the academic work emerging from this laboratory seems to draw primarily on anecdote and the authors’ personal experiences. This paper moves beyond such anecdotal approaches and examines the alleged civil v. common law divide empirically. Based on generative interviews with twenty-six of the world’s ‘most in demand’ arbitrators, it concludes that, within international arbitration, significant differences between civil and common law have largely faded over time. By contrast, experienced international arbitrators apply a de facto ‘Uniform Code of Arbitral Procedure’. Exploring the content of this framework − and borrowing from Francis Fukuyama’s famous theory − the article argues that international arbitration today has reached its own ‘End of History’. That is, the common law − including many of its typical features − has triumphed and now represents the dominant approach in international arbitration.
The integration of artificial intelligence (AI) into international arbitration raises significant public policy challenges, particularly when AI is used to render arbitral awards autonomously. This paper evaluates the enforceability of AI-generated awards under the 1958 New York Convention (NYC), with particular emphasis on the public policy exception and associated due-process guarantees. It discusses three principal concerns: namely, the requirement that arbitrators be natural persons, the necessity of reasoned awards, and the risk of algorithmic bias compromising impartiality and fairness. Drawing on comparative jurisprudence and emerging soft-law guidance, the analysis demonstrates that, although party autonomy may in principle accommodate technological innovation, prevailing legal frameworks present significant obstacles to recognition and enforcement.
When lawyers speak of comparative law, they mostly think of the 'civil' and the 'common law' - two legal traditions that are widely viewed as isolated from one another. In the realm of international arbitration, however, these traditions inevitably collide. Accordingly, authors have rightly referred to arbitration as a 'real-life laboratory for the development of a procedural Esperanto'. But much of the academic work emerging from this laboratory seems to draw primarily on anecdote and the authors' personal experiences. This paper moves beyond such anecdotal approaches and examines the alleged civil v. common law divide empirically. Based on generative interviews with twenty-six of the world's 'most in demand' arbitrators, it concludes that, within international arbitration, significant differences between civil and common law have largely faded over time. By contrast, experienced international arbitrators apply a de facto 'Uniform Code of Arbitral Procedure'. Exploring the content of this framework-and borrowing from Francis Fukuyama's famous theory-the article argues that international arbitration today has reached its own 'End of History'. That is, the common law-including many of its typical features-has triumphed and now represents the dominant approach in international arbitration.
This article analyses recent decisions on the interaction between domestic state immunity laws and the recognition and enforcement of awards made under the Convention on the Settlement of primarily on the English Court of Appeal's decision in Infrastructure Services Luxembourg v. Kingdom of Spain. First, it is argued that proceedings for the recognition and enforcement of ICSID awards should not involve any question of state immunity (or its purported waiver). It is only when considering the award's execution that the question of immunities arises. Second, fi that first proposition is incorrect, then it is improper to rely solely on the language of Article 54(1) of the ICSID Convention for the purposes of establishing that a respondent state has waived its jurisdictional immunity or that it has submitted to the jurisdiction of the enforcing court. The language of provisions within 'framework' Conventions like the ICSID and New York Conventions do not on their own supply conclusive evidence of a state's waiver of immunity. Courts should instead have regard to more specific indicia of waiver. Before English courts, the question of waiver in ICSID award registration proceedings is more properly addressed via the arbitration exception in section 9 of the state Immunity Act (SIA), rather than via section 2.
