This paper examines the evolution of global private mediation markets in the 2020s, with particular focus on the Asia-Pacific region's emergence as the fastest-growing mediation market worldwide. Through an analysis of verified market data from leading research institutions, this study reveals that while the global alternative dispute resolution (ADR) market has sustained 7% annual growth, the Asia-Pacific region has achieved a remarkable 11.3% growth rate. The research demonstrates how COVID-19 accelerated digital transformation in mediation services, with the broader online dispute resolution platform market (encompassing ecommerce systems and online mediation services) projected to grow at a 9.71% annual rate. Cultural factors, analyzed through mediation preferences and effectiveness across Asian jurisdictions, with high power distance and collectivist values aligning naturally with mediation's collaborative approach. The 2020 Singapore Convention on Mediation has enhanced enforceability and confidence in cross-border mediation. The study concludes that market commercialization, contrary to typical concerns, has improved service quality through competitive pressures that drive innovation and specializationwhile expanding accessibility, particularly in technologically advanced Asian markets. These findings suggest the Asia-Pacific regionwill continue leading global mediation innovation through 2030.
Umbrella clauses in bilateral investment treaties (BITs) aim to elevate contractual obligations between investors and host states to the level of treaty obligations. They allow investors to resort to international tribunals without having to rely on domestic legal mechanisms. In addition to this enhanced protection for investors they also raise concerns about state sovereignty, regulatory autonomy, and legal predictability. This article examines the evolution, interpretation, and implications of umbrella clauses. It explores the challenges posed by inconsistent tribunal interpretations, which contribute to legal uncertainty and unpredictable outcomes. Additionally, it analyzes these clauses' interaction with the doctrine of privity of contract and forum selection clauses in depth. Recent treaty practice concerning these clauses also examined in this article. By evaluating the benefits and risks associated with these clauses, this article sheds light to their changing role in international investment law. Ultimately, it calls for a balanced approach that addresses both investor protection and state sovereignty in the contemporary investment landscape.
Many states have obligations to mitigate the adverse effects of climate change under international agreements, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement of 12 December 2015. However, the host states'regulatory autonomy sharply conflicts with their obligations to protect private investors under International Investment Agreements, thereby giving rise to disputes between the parties. The launch of arbitration proceedings has the effect of inducing a regulatory chill on states to adopt and implement effective climate changed focused policies. We need to adopt a combination of strategies to limit the regulatory chill. At the same time, we must be realistic: it is impossible to eliminate all claims. This article focuses on measures that are adopted by the host states to comply with international obligations such as the Paris Agreement. It approaches the problem by considering practical strategies at two stages. First, in respect of existing International Investment Agreements (hereinafter "IIAs"), what possible reforms can be made to the current tribunal practice? We consider improving current tribunal practice by tackling three fundamental questions: can we treat disputes involving climate change-focused measures that are rooted in the States' international obligations as a special category; how to identify these measures; and what is the modern role of the tribunal in these disputes. Second, in respect of entering into new IIAs or renegotiating IIAs, how treaty drafting can be improved to safeguard the host states'regulatory space in respect of adopting effective measures to comply with their international obligations? That some of these proposed changes may be modest adjustments does not mean that they are not worthwhile improvements. They are important baby steps along the path towards value reorientation in the field of investor-state arbitration.
Can states effectively reassert sovereignty in Investor-State Dispute Settlement Mechanism (hereinafter "ISDS") by conditioning investor consent through domestic Foreign Investment Laws (hereinafter "FILs")? This paper examines FILs as a crucial legal instrument designed to re-balance investor protection and state sovereignty by imposing precise statutory requirements for investor consent. PartI examines how FILs establish limitations on investor consent that differ from those in International Investment Agreements (hereinafter "IIAs"), highlighting these restrictions as a clear expression of state intent to reassert its right to regulate. Part II conducts a case study towards three FILs-based ISDS dealing with investor consent. Through a comprehensive analysis towards both the awards and dissenting opinions, a conservative tendency is revealed: despite unambiguous statutory provisions, tribunals frequently adopt a lenient interpretation to maintain jurisdiction, undermining states ' efforts to enforce sovereign limitations on consent. Part III offers a theoretical analysis of investor consent through two perspectives on the investors' legal status as non-state actors under international law: as an independent legal actor or as a holder of rights derivative of state sovereignty. Both frameworks converge on a single normative conclusion: to restore coherence and balance between state sovereignty and investor protection among the ISDS system, tribunals must adopt a strict interpretation of investor consent under FILs, treating it as a substantive jurisdictional requirement parallel to state consent. A strict interpretation of investor consent, equivalent to the standards applied to state consent, is essential for recalibrating the balance between state sovereignty and investor protection within the ISDS framework. Overall, this research concludes that while FILs have the potential to reinforce state sovereignty by conditioning investor consent, their effectiveness is curtailed by prevailing lenient arbitral practice. It is argued that achieving a more coherent and legitimate ISDS system requires not only tribunals to apply a restrictive interpretation of consent, but also states to adopt consistent legislative and regulatory measures, ensuring that the substantive jurisdictional requirements set forth by domestic law are fully respected.
In light of recent efforts within the World Trade Organization (hereinafter "WTO") to push for meaningful reform of the WTO dispute settlement system, many outstanding issues that are of interest to WTO members are discussed, which eventually culminated in a draft and were presented to the General Council two weeks before the Ministerial Conference in Abu Dhabi. This Paper will provide an analysis of Title VI of this draft titled "Procedures to Discuss Legal Interpretations", which includes mechanisms that induces further discussion over adopted rulings and provide for an "Advisory Working Group" that can react to controversial interpretations. Based on a comparison between the adoption process in the current system and Title VI, this Paper argues that Title VI, by enshrining the mechanisms in text, is useful in reducing internal obstacles that prevented every WTO member from triggering such mechanisms under the current operation of the WTO, but its effectiveness will depend on whether WTO members are able to resolve the systematic problem of difficulty in decision-making that has long plagued the WTO, as Title VI does not prescribe a fixed outcome in case there is no consensus.
This research investigates the following question: To what extent canArtificial Intelligence (hereinafter "A.I.") be effectively integrated into art dispute resolution specifically within arbitration, and what legal and ethical considerations must be addressed to ensure responsible implementation? The intersection of art, law, and technology presents a rapidly evolving landscape, particularly in dispute resolution, making this inquiry both practically and academically significant. The rise of a specialised arbitration body like the Court ofArbitration forArt (CAfA) or Germany's replacement of its Nazi-loot advisory panel with a binding arbitration process, alongside evolving international frameworks such as the International Institute for the Unification of Private Law Convention and United Nations Educational, Scientific and Cultural Organization mediation procedures, further underscores the relevance of this exploration. This study addresses the inherent tension between art's subjective nature andA.I.'s objective algorithms, arguing that while A.I. offers valuable technical capabilities, a purely objective approach risks overlooking crucial cultural and historical contexts. A.I. can significantly enhance efficiency, transparency, and accuracy in art dispute resolution through provenance research, forgery detection, and data analysis. Furthermore, the potential for A.I. experts to offer impartial perspectives warrants investigation. However, the question remains whether algorithmic objectivity translates to equitable outcomes in art disputes, where human values and cultural perspectives inherently influence interpretations. This research proposes a hybrid model, integrating A.I.'s analytical strengths with human expertise in cultural and historical nuances. This collaborative approach leverages A.I. to enhance arbitration proceedings while preserving the essential human element of legal judgment, ensuring just and equitable decisions. This multidisciplinary study from legal studies, art history, and technology critically examines A.I.'s limitations within art dispute arbitration. This methodology includes analysing case studies where human judgment proved pivotal and comparing A.I.-driven versus human-driven dispute resolution outcomes. By exploring the potential and limitations ofA.I., this research aims to provide a framework for ethically integrating A.I. into art dispute resolution, ensuring that technological advancements enhance, rather than undermine, the principles of justice and fairness within the art world.
Following the amendment to the United Nations Commission on International Trade Law (hereinafter "UNCITRAL") Model Law in 2006 (hereinafter "2006 Model Law"), legislative efforts in various countries aimed to promote arbitration by clarifying the broad scope of arbitrable disputes and the broad discretion of arbitral tribunals. However, the most notable improvements inspired by the 2006 Model Law involved defining and clarifying the legal grounds for seeking national courts' support for interim measures. Focusing on interim measures, this paper aims to examine EastAsian countries'legislative efforts to harmonize their legal systems with the 2006 Model Law, albeit with some variations, and how such amendments to those countries' arbitration acts have enabled them to compete with other comparable jurisdictions. This research will suggest implications for other EastAsian jurisdictions that are considering the adoption of the 2006 Model Law, including its interim measure mechanism, with or without modifications. While Article 17 of the 1985 version of the UNCITRAL Model Law had made certain stipulations regarding interim measures by the Tribunal, the absence of provisions to enforce interim measures compromised the effectiveness of international arbitration. On the other hand, the 2006 Model Law introduced Chapter IVA (interim measures and preliminary orders), including a legal regime for the enforcement of the Tribunal's interim measures (Article 17 H) and the court's power to order interim measures in relation to arbitration proceedings (Article 17 J). In Korea, the long-awaited 2016 amendment made interim measures ordered by arbitral tribunals enforceable and provided the grounds for necessary assistance from domestic courts. While Korea broadly adopted Chapter IVA of the 2006 Model Law, it did not adopt any provisions for preliminary orders and did not consider rules on interim measures for foreign arbitration. Other East Asian countries also adopted the interim measures regime of the 2006 Model Law, but with differing approaches. For example, China and Hong Kong announced a special arrangement on interim measures that came into force in 2019. While this still sharply deviates from the new regime for interim measures under the 2006 Model Law, it was considered a practical solution, making arbitration in either Hong Kong or Mainland China far more attractive than before to foreign parties. More recently, in 2023, Japan amended its arbitration act to establish a regime enabling the enforcement of interim measures. Japan made a drastic change to its legislation to allow the enforcement of interim measures irrespective of the seat of arbitration. Further, Japan went beyond the 2006 Model Law by empowering Japanese courts to order penalties for the breach of interim measures. This paper attempts to address these gaps in the discourse in order to assist policymakers in other jurisdictions who are considering the future adoption of the enforcement mechanism under the 2006 Model Law. It also offers a comparative analysis of other similar jurisdictions that have adopted such enforcement mechanism and tests the arguments in favor and against the enforcement of interim measures issued by foreign-seated arbitral tribunals.
Artificial Intelligence (hereinafter "A.I.") is predicated on the notion that a computer programme can mimic all aspects of intellect and learning if they were meticulously documented. A.I. is increasingly being used in international arbitration by various stakeholders, including experts, litigants, tribunals and arbitrators at different stages. However, while A.I. has become increasingly prevalent in arbitration, there is still a regulatory vacuum that needs be bridged. The increasing use of A.I. in arbitration to improve procedural efficiency and decision-making raises serious concerns about the lack of a strong regulatory framework. The use of unregulated A.I. raises multiple technological challenges, which have resulted in some courts mandating the disclosure of A.I. use. These concerns are exacerbated by A.I.s' limited capacity to comprehend cultural nuances. Additionally, legal and ethical considerations arise, such as the permissible extent of A.I. usage in the arbitral process by various players, the duty to verify A.I.-generated work, the question of liability brought upon due to risks of algorithmic bias, or the leak of confidential information. Research indicates a rise in calls for greater transparency in the use of A.I. in arbitration, and the need for regulation. While previous attempts to regulate A.I. certainly provide a starting point for the regulation of A.I. in the arbitral process, they are neither universally recognized, nor implemented across jurisdictions. In this backdrop, there is a need for an international legal instrument that either regulates, or encourages the regulation of A.I. in arbitration. The authors in this paper argue for the regulation of A.I. in arbitration using an internationally-recognised soft-law framework. The flexibility and adaptability provided by soft law frameworks would complement the "international" and voluntary nature of arbitration. The proposed soft law framework could materialize in three ways: first, regulators could develop an international legal instrument based on which States can develop their own laws (much like the United Nations Commission on International Trade Law Model Law); second, A.I.-related arbitrations could follow the soft law guidelines as best practices, with the guidelines having persuasive value similar to the International Bar Association (IBA) Rules; or third, soft law could encourage arbitration institutions to incorporate relevant clauses on A.I. use in their procedural rules. The authors also explore the considerations which such a soft law ought to address. The need for such a framework is not to draw boundaries, or control the innovative path of A.I., rather, it is to put in place ethical barriers and dynamic safeguards for identifiable risks, and to work in tandem with the requisite human oversight throughout the life cycles of A.I. processes. This would be a balanced approach which addresses issues of law, ethics, and technology on one hand, while encouraging creativity and flexibility in the field of arbitration on the other.
Through analyzing arbitration rules regarding experts' duties and arbitral tribunals' examination of experts' conflicts of interest, this paper aims to provide possible consequences of experts' failure to disclose their conflicts of interest in international arbitration. There are two types of experts in international arbitration: tribunal-appointed experts and party-appointed experts. Given that the two types of experts originate from different domestic legal systems, and that they play different roles in arbitral proceedings, this paper proposes to discuss their conflicts of interest and the potential consequences separately. For tribunal-appointed experts, their conflicts of interest may violate their duty of independence and impartiality, as well as their duty to disclose. In practice, parties had argued to remove experts and their evidence. The potential consequences of having tribunal-appointed experts with conflicts of interest are award set-aside and refusal of the recognition or enforcement on the ground related to the composition of the tribunal. For party-appointed experts, whether their conflicts of interest may violate any duty regulated under procedural rules has been debatable. This is because unlike tribunal-appointed experts, procedural rules do not explicitly regulate if they owe the duty of independence and impartiality. Moreover, as they are appointed and renumerated by one side of the parties, their independence and impartiality are questioned naturally. Another reason for party- appointed experts to be accused with conflicts of interest is when they have access to the opposing parties' confidential information, which could happen when the expert had past or current relationship with the opposing party. For the consequences, parties had also requested to remove party-appointed experts and their evidence. Also, there had been a case where the party request to adjourn the proceedings. As for the potential consequences, party-appointed experts' conflicts of interest may constitute the grounds for award set-aside and refusal of the recognition or enforcement as well. This paper further proposes that it is plausible for tribunals to sanction the party that intentionally appoints an expert with conflicts of interest with cost allocation.
This research paper investigates the integration of Artificial Intelligence (hereinafter "AI") in the arbitration process. The motivation stems from the researcher's firsthand experience in the industry and their contemplation on the accessibility and cost of justice. The transformative impact of AI across various domains prompts an exploration of its potential to make arbitration more affordable and efficient. The paper examines both traditional and AI-assisted arbitration, contrasting their benefits and challenges. Ethical and legal considerations are evaluated to ascertain the compatibility of existing frameworks with AI incorporation. The investigation also involves gathering insights and feedback from the law and arbitration community to gauge real-world perspectives. The paper advocates for a cautious yet ambitious integration of AI in arbitration, harmonizing it with human cognitive processes. By synergizing AI's capabilities with human expertise, a balanced and equitable arbitration landscape can be fostered. The paper concludes by calling for continued exploration, collaboration, and innovation to ensure continuous development in this evolving field.
This paper addresses the value of human input in arbitration while recognizing the growing impact of artificial intelligence (hereinafter "AI") on legal work. In doing so, this article examines the benefits and risks of using AI in arbitration, followed by a detailed analysis of how different human qualities of legal counsel and arbitrators contribute to the positive impact they make on the arbitral process and outcome. Based on this analysis, the article considers the practicality of relying on AI in replacement of various human roles in arbitration and concludes that it is infeasible and challenging to do so, particularly in complex disputes, given the inherent limitations of AI. The key point is that certain human inputs are essential and irreplicable in arbitration but there is scope for using AI technology to enhance human capabilities and improve the overall arbitration system.
The case of CWE v. NHA is significant not just for enforcing a high -value foreign arbitral award but also for the Islamabad High Court's noteworthy contributions to developing and applying Pakistan's jurisprudence on international arbitration. This case encapsulates a wide range of arbitration principles within a single judgment, including concepts such as separability, governing laws, the interaction between arbitral and judicial powers, clarification on the jurisdictional conflict between civil courts and high courts, consideration of arbitrator's bias, pro -arbitration and proenforcement bias, and differentiation between the Arbitration Act 1940 and the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011. Such a comprehensive treatment of arbitration principles in one judgment is quite exceptional.
This study examines the role of Artificial Intelligence (hereinafter "AI") in revolutionizing international trade law and the World Trade Organization (hereinafter "WTO")'s dispute resolution mechanisms. By automating complex decisions and processing extensive datasets, AI promises to enhance both the efficiency and effectiveness of trade and dispute resolution. This research delves into AI's potential applications within the WTO, highlighting how predictive analytics and decision support systems could transform trade dispute resolutions. However, the integration of AI also presents challenges, including ethical concerns, the need for transparency, and data privacy issues. Balancing these challenges with the benefits of AI is crucial to maintaining fairness and accuracy in legal processes. This paper advocates for international collaboration to establish standards guiding AI applications in international trade and dispute resolution, ensuring that technological advancements support the WTO's goals without compromising the integrity of the legal system. A new legal framework is essential to harness the full potential of AI while mitigating associated risks, ensuring that advancements in AI contribute to a more equitable, efficient, and transparent global trade system. Emphasizing the broader implications, the integration of AI technologies is posited as a cornerstone for promoting free trade and opening up the world economy. By reducing barriers and enhancing access, AI has the potential to drive global economic integration and foster a more interconnected market environment. This vision aligns with contemporary global trade objectives, advocating for a harmonious blend of technology and traditional trade principles to navigate the complexities of modern international relations and trade policies. The exploration of AI's role across these dimensions underscores the broad and impactful nature of technological progress on the fabric of international trade and law, echoing the urgent call for adaptive strategies that embrace technological advancements while upholding the principles of free and fair trade.
This paper deals with phantom issues and real problems of Investor -State Dispute Settlement (hereinafter "ISDS"), as well as possible solutions to the most pressing threats that surfaced in global practice. In particular, the authors discuss the phenomenon of double-hatting, third -party funding, transparency and the oftenunwelcome limitation of the national sovereign's regulatory powers. After explaining the nature of the aforementioned issues, the article delves deeper into-what the authors perceive to be-the real issues of ISDS. Designated as such are case complexity and length, the question of appropriateness of arbitral assistance, and the rising problem of scarcity of suitable arbitrators. After elaborating the real threats, the authors specify existing and proposed solutions to these matters, with a special regard to the use of Artificial Intelligence (hereinafter "AI") and the growing importance of an arbitrator team approach. Within this context, the paper dives deeper into the utilization of AI in dispute resolution and the authors critically discuss the benefits and disadvantages of the adaptation of the role of an arbitrator, which the introduction of AI would undoubtedly entails. This paper, overall, displays the problems arising from stereotypes in the world of ISDS and whether they are practical or rather obstructive
With highly humanlike responding abilities enabled by generative artificial intelligence (hereinafter "AI"), ChatGPT astonished the world instantly after its launch on November 30, 2022. As ChatGPT has demonstrated the capabilities of AI to analyze and solve complex tasks, we are one step closer to the point where AI will have the technological capability of serving as an arbitrator to analyze legal issues and apply the correct laws and rules to the facts. In light of the technological advancement of AI, instead of the previous question of whether AI will be able to serve as an arbitrator, the current question seems to be when AI will be able to serve as an arbitrator. This article discusses the potential of AI serving as arbitrators from both a technological and legal perspective. We find that AI technologies still have some way to go before reaching the maturity to serve as arbitrators. But even when AI reaches the required maturity, we believe whether AI can serve as an arbitrator will eventually depend on the public's trust in AI to make potentially life -changing decisions.
In recent years, advancements in blockchain as well as virtual and augmented reality technologies have led to the emergence of digital environments, commonly referred to as the "metaverse". These virtual worlds offer users unprecedented ways to interact and conduct business, such as the use of non-fungible tokens ("NFTs") for transactions. Correspondingly, there has also been an increase in disputes that are unique to these contexts. This article assesses the suitability of various dispute resolution mechanism vis-a-vis such disputes, focusing in particular on decentralised justice platforms that purportedly provide the option of "blockchain arbitration". What does blockchain arbitration entail? What are its advantages and disadvantages when compared to litigation or arbitration (in the more conventional sense)? And to what extent would decisions rendered pursuant to such processes be enforceable under the New York Convention on the Recognition and Convention")? This article discusses these questions and explores blockchain arbitration's use case.
Third-party funding as an arrangement where an entity, who is not already a party to the dispute, provides funds or other material support to a disputing party to further their claim or defense. Besides the benefits third-party funding brings, such as increasing access to justice, many experts are concerned about the serious risks that this mechanism can cause, one of which is conflicts of interest. In ordinary cases, conflicts of interest are mostly anticipated to happen between arbitrators and disputing parties. The more types of funders get introduced and the more relationships are made, the more grounds for conflicts to arise. If a conflict is discovered late, the arbitration procedure may get extended to appoint a new arbitrator, or the validity of an existing award may be challenged, wasting time and resources in the process.Third-party funding has become increasingly popular worldwide and attracts the attention of the legal community. Even though many literature works have focused on this topic, few mention the applicability of such regulations in ASEAN or its members. In order to enrich the existing discussion on third-party funding in commercialarbitration, the paper examines conflicts of interest in third-party funding and suggests how to mitigate the risks. The paper proceeds as follows. After giving an overview of ASEAN and third-party funding, the authors then analyze possible legal issues concerning conflicts of interest in third-party funding agreement and suggests how to minimize the risks using different measures. Hopefully, this paper will become a stepping stone to a more intensive regulation in ASEAN on third-party funding, making third-party funding more relevant and helping people gain access to justice in the future.
Amicable settlements have proved to be promising developments in Vietnam's investment treaties and its disputes practice. The State systematically gives its consent to Investor-State amicable settlements and includes them in its investment treaties. Such methods are even facilitated by Vietnam's reforms in domestic regulations. Even though obstacles remain, amicable settlements may be a credible and viable means of investment disputes settlement as far as this State is concerned. The inclusion of Investor-State amicable settlements in Vietnam's future investment treaties is potentially accepted in that these methods have been increasingly advocated as the preference of this State and its partners. Among amicable settlements, mediation should be carefully designed in a manner in which the future trajectory of mediation provisions adheres to Vietnam's prime principles.
Within the Macanese legal community, despite the traditional underdevelopment of alternative dispute resolution mechanisms, there is now increasing interest in commercial arbitration. In this context, and given the economic conditions of Macau, the arbitration of intra-corporate disputes is an area especially apt to be developed. Nevertheless, questions remain regarding the extent to which these disputes should be considered arbitrable within the region. These difficulties are compounded by the way the new Macanese arbitration law addresses objective arbitrability. Indeed, the new arbitration law states that parties may arbitrate only subject matters regarding which they are entitled to conclude a settlement agreement. This criterion has often proven contentious when applied to intra-corporate disputes. This article argues that despite some ambiguity in the application of this standard, the vast majority of intra-corporate disputes should be deemed arbitrable under Macanese law. Despite this, some subsets of corporate disputes, most notably those regarding the validity of company resolutions, should comply with special requirements to make the arbitral proceedings regarding these disputes operable.
