Adaptability of ADR

Adaptability of ADR
One of the strengths of alternative dispute resolution (ADR) has always been its
adaptability. The capacity to adapt and to be adapted springs directly from the
fundamental characteristic of all ADR disciplines as products of party autonomy. If
parties were not able to fit dispute resolution solutions to their needs and the
necessities of their disputes, both commercial and private, then ADR would lose
the better part of its attraction to a large portion of users. But while ADR is
adapted in more beneficial ways, it must always ensure justice. In this issue, the
adaptability of ADR and its limits take centre stage.
Amid ongoing global shifts in working and living patterns brought about by
the covid-19 pandemic, ADR’s adaptability to the demands of the new reality
have received considerable attention. But as Peter Ashford in his article analysing
this question as framed in the 2020–2021 Vis Moot Problem and Nika Madyoon
in her winning student essay show, the enticements of ADR’s adaptable nature
cannot supersede the ultimate considerations of enforceable resolutions and the
assurance of justice. Charterjee and Uddin similarly note Online Dispute
Resolution’s (ODR’s) attractiveness as a cost and time efficient dispute resolution
mechanism facilitated by increasingly sophisticated artificial intelligence and data
analytics. ODR may be an area of ADR uniquely adapted to advancing technol-
ogy, yet some of the same questions of justice that give pause when looking at
virtual proceedings persist.
ADR’s adaptability is not merely mechanical, however. Dispute resolution
procedures can be tailored to specific substantive areas where there may be unique
challenges. Anthony Connerty looks at arbitration as a means of resolving disputes
over national treasures and works of art while Seung-Woon Lee examines the
options and implications of adapting the current investor state dispute settlement
system to a standing court.
The adaptability of ADR is limited only by the overriding pursuit of justice
in the outcome. Woven through the articles in this issue is the notion that while
adapttions are made, the resulting ADR processes must ensure justice. The
‘Adaptability of ADR’. Arbitration: The Int’l J. of Arb., Med. & Dispute Mgmt 87, no. 4 (2021): 457–458.
© 2021 Chartered Institute of Arbitrators

458 ARBITRATION: THE INT’L J. OF ARB., MED. & DISPUTE MGMT
broader and more important question to which each author seeks to provide
another piece of the answer is this: Just because ADR can, does that mean it
should?
Mercy McBrayer FCIArb
Assistant Editor
CIARB Research and Academic Affairs Manager
October 2021
Art Law Dispute Resolution: Demands for the
Return of National Treasures and the Disputed
Ownership of the Hugh Lane Impressionist
Paintings
Anthony Connerty FCIArb*
This article looks at three matters:

1. Claims for the return of national treasures and cultural objects.
2. The dispute between the Dublin City Gallery and the National Gallery in London
concerning the ownership of the Hugh Lane Impressionist Paintings.
3. Methods for dealing with the settlement of art-related conflicts by dispute resolution
systems such as arbitration and mediation.
This article is based in part on an article by the author, ‘Ownership, Ethics and Non-
Adversarial Settlement Methods: The Hugh Lane Bequest’: Volume 26 of the Studies in Art
Law, Cultural Heritage Law and Ethics: Mapping Recent Developments: ISBN 978-
3-7255-8677-6; and on his article published by the Dispute Board Federation, ‘The
Resolution of Art Disputes by Adjudication: A New Way Forward’.
Keywords: Return, Stolen Art, Museums, Restitution, Hugh Lane, Dublin, Impressionist Paintings,
Art Law
1 INTRODUCTION
The debate concerning claims for the return of national treasures and cultural
objects continues unabated. President Macron has adopted a report by two aca-
demics which recommends the full restitution by French museums of works in
*
A barrister in practice at Six Pump Court, Temple, London EC4 specializing in international dispute
resolution: he has acted as Counsel, Arbitrator and Mediator in international arbitrations and media-
tions in Abu Dhabi, Beijing, Lagos, London, New York, Shanghai, Singapore, Stockholm and
Washington D.C. under the Rules of various international institutions including the LCIA, ICC,
AAA/ICDR, CIETAC, CIArb, SCC (Stockholm), RCICAL (Lagos), LME (London Metal
Exchange), ICA (International Cotton Association) and in ad hoc arbitrations under the
UNCITRAL Rules. He has acted as Counsel in arbitration-related litigation and is a member of
PAIAM [Professional Advisers to the International Art Market] and a member of the Pool of
Arbitrators and Mediators of CAfA: The Court of Arbitration for Art, The Hague.
Emails: anthonyconnerty@idrgroup.org & anthony.connerty@6pumpcourt.co.uk.
FCIArb, Anthony Connerty. ‘Art Law Dispute Resolution: Demands for the Return of National Treasures
and the Disputed Ownership of the Hugh Lane Impressionist Paintings’. Arbitration: The Int’l J. of Arb.,
Med. & Dispute Mgmt 87, no. 4 (2021): 459–483.

their collections which were taken ‘without consent’ from former African colo-
nies. The proposal is criticized by the head of the Musée du Quai Branly, Stéphane
Martin, and by Neil MacGregor, a former Director of the British Museum: the
latter describes the proposal to return African objects in France’s institutions as
‘quite extraordinary’. The article looks at developments as at the Spring of 2021.
The dispute over the ownership of the Hugh Lane thirty-nine Impressionist
paintings – bequeathed bv Lane to the National Gallery in London but by an
unwitnessed codicil to his will left to the City of Dublin – has involved the
British and Irish governments and galleries in London and Dublin. The paintings
include Manet’s Music in the Tuileries Gardens and Renoir’s Umbrellas. Agreements
between the London and Dublin galleries brokered in 1959 provided that the
display of the Hugh Lane paintings would be split between London and Dublin,
and that two groups of pictures would move between the National Gallery,
London and Dublin City Gallery every five years for twenty years. The dispute
has an Irish/British/American flavour. A clause in the 1959 Agreement dealing
with damage to paintings on loan provided for arbitration in London by a sole
arbitrator who, in default of agreement, is to be appointed by the ‘Director for
the time being of the National Gallery of Art in Washington, United States of
America’.
As to the resolution of art law disputes: many such disputes are litigated in
New York and London, and the significance of arbitration as a dispute resolution
mechanism is demonstrated by the launch in The Netherlands of the Court of
Arbitration for Art.
2 CLAIMS FOR THE RETURN OF NATIONAL TREASURES AND

CULTURAL OBJECTS
Broadly, there are three issues relating to demands for the return of national
treasures and cultural objects:
The return of looted artefacts and illegally exported objects;
claims for the return of stolen art; and
museums and restitution claims.
2.1 THE RETURN OF LOOTED ARTEFACTS AND ILLEGALLY EXPORTED OBJECTS
There can be little doubt concerning the first category: looted artefacts and illegally
exported objects should be returned to their country of origin.
The British Museum has returned Buddhist sculptures to Afghanistan. The
sculptures were discovered at Heathrow airport in wooden crates which border
ART: LAW DISPUTE RESOLUTION 461
officials suspected contained drugs. Investigations suggested that the items had been
smuggled out via Pakistan after the Taliban came to power. The sculptures – a
statue and nine Buddha heads – have been returned to the National Museum of
Afghanistan in Kabul.1
Another example of the British Museum’s role in the repatriation of looted
artefacts is the return to Iraq of 156 inscribed tablets dating between 2100 BC and
1800 BC. The tablets were in a shipment from the United Arab Emirates which
were impounded by British customs officials. The paperwork accompanying the
shipment described the objects as handmade clay tiles with a value of a few
hundred GBP. The artefacts are believed to have been looted and smuggled out
of Iraq to the UAE. The collection was handed over to the Iraqi ambassador at a
ceremony in London. The ambassador stated that he was grateful to the Museum
and the Foreign Office for their aid in returning Iraq’s looted treasures.2
In May 2021 a funerary statue dating to the second century BC was returned
to Libya ten years after it was imported illegally into Britain. A British Court ruled
that the four-foot marble statue, thought to depict Persephone, had been unlaw-
fully excavated from a world heritage site. The statue was handed over to the
Libyan embassy.3
2.2 CLAIMS FOR THE RETURN OF STOLEN ART
The second category may not be so straightforward. A work of art may have been
stolen but provenance issues may show that a later purchaser has rights of owner-
ship. An example is the case of Matisse’s Portrait of Greta Moll.
The National Gallery in London acquired the Matisse painting on behalf of
the British public in 1979. The Gallery purchased the work from a commercial
gallery in London in good faith and says that it is its rightful owner. Since then the
painting has been on display free of charge for millions of visitors to enjoy each
year in the Gallery in Trafalgar Square.
The National Gallery faced an appeal in the United States Supreme Court
after being sued for the return of the ‘stolen’ Matisse portrait by descendants of the
painting’s subject.
Three grandchildren of Greta Moll demanded that the museum pay USD 30
million compensation or return Portrait of Greta Moll, painted by Matisse in 1908.
The family alleged that the painting was stolen from them in 1947 during the
upheaval following the Soviet occupation of Berlin at the end of World War II.
1
The Times, 9 July and 12 Nov. 2019.
2
The Times, 30 Aug. 2019.
3
The Times, 11 May 2021.
The claimants alleged that the family lost the painting due to the dishonest act of a
family friend in 1947 – years before it was purchased in good faith by the National
Gallery.
The Gallery said that it understood that both Greta Moll and her husband
were living in Germany during the Second World War. Some years after the war
ended – when the family say the painting was still in their possession – Greta Moll
moved to Wales: ‘This case therefore does not concern Nazi looted art’.
A decision of a New York court of 21 September 2017 upheld the arguments
made by the Gallery that there was no justification for bringing litigation in the
United States. The court also confirmed that it was far too late for the heirs to
bring a case now, given that the family had been aware of the location of the
painting for many decades.
The National Gallery welcomed the decision of 10 September 2018 by the
United States Court of Appeals for the Second Circuit, which upheld the decision
of the District Court of the Second Circuit to dismiss all claims made by heirs to
Greta Moll in respect of the Gallery’s Portrait of Greta Moll.
The National Gallery has made its position clear: ‘This is not a case involving
Nazi looted art; the claimants allege that the family lost the painting due to the
dishonest act of a family friend in 1947, many years before it was purchased in
good faith by the National Gallery’.4
Judith Prowda, a New York attorney specializing in art law, notes that as the
art world has become more global:
the illicit trade of art has grown more complex. Cases often hinge on where the theft
occurred. Different jurisdictions, different law – different result. Common law and civil
law countries have different laws governing legal title and statutes of limitation or
prescriptive periods (period of time within which a legal action must be brought).
She points out that in common law countries like the US and the UK the original
owner of a stolen artwork generally has superior title to a good-faith purchaser. By
contrast, the civil codes in most continental European countries ‘are more favor-
able to good-faith purchasers, who may acquire good title to stolen artwork after a
prescriptive period’.5
London’s Victoria & Albert Museum has appointed Jacques Schumacher as
its Provenance and Spoliation Curator. The V&A has announced that it has
identified eighty pieces of art looted by the Nazis which are included in the
Gilbert Collection. The collection is one of the most comprehensive collections
4
https://www.nationalgallery.org.uk/about-us/press-and-media/press-releases/national-gallery-and-
the-british-public-are-rightful-owners-of-portrait-of-greta-moll.
5
‘Visual Arts And The Law’, Judith B. Prowda, Lund Humphries in association with Sotheby’s Institute
of Art. ISBN: 978-1-84822-086-7.
of European decorative arts built in the twentieth century by a private collector.

The collection was based at Somerset House in London and was transferred on a
150-year loan agreement to the V&A. The museum has stated its intention to
return the pieces to their rightful owners – if they can be found.6
Police in New York and London have specialist officers dealing with stolen
antiquities. The head of the Antiquities Trafficking Unit of the New York County
District Attorney’s Office cooperates with Scotland Yard. The Metropolitan Police
Art and Antiques Unit is a branch of the Specialist, Organised & Economic Crime
Command within London’s Metropolitan Police Service.7
2.3 MUSEUMS AND RESTITUTION CLAIMS
There has been a rise in claims for the return of national treasures, many of these
claims made against museums.
The long-standing claim by Greece for the return by the British Museum of
the Elgin Marbles has been joined by news that Egypt is to demand proof that a
pyramid stone said to have been taken from the Great Pyramid of Giza and due to
be exhibited in the Museum of Scotland is held legally. Egyptian officials have
suggested that the stone may have been smuggled into Britain.8
A claim by the Isle of Man for the return by the British Library of the
Chronicles of the Kings of Man and the Isles joins another long-standing claim by
Nigeria for the return of Benin bronzes by the British Museum.9
Perhaps one of the most striking examples of claims against national museums
is shown by the approach taken by President Macron of France. He adopted a
report by two academics, French historian Bénédicte Savoy and Senegalese econ-
omist and writer Felwine Sarr. President Macron commissioned the report, which
recommends the full restitution by French museums of works in their collections
which were taken ‘without consent’ from former African colonies.
The academics argue that the complete transfer of property back to
Africa – and not the long-term loan of objects to African museums – should be
the general rule for works taken in the colonial period unless it can be shown that
these objects were acquired ‘legitimately’. Savoy denies that the policy proposed by
the report might lead to the emptying of institutions such as the Musée du Quai
Branly in Paris. The Musée houses 70,000 African objects. The report also seeks to
put pressure on museums in Europe to review their policies.10
6
The Times, 2 Sept. 2019.
7
The Art Newspaper, Sept. 2020.
8
The Times, 10 Jan. 2019.
9
The Times, 7 Jan. 2019.
10
The Art Newspaper, 20 Nov. 2018, https://www.theartnewspaper.com/news/give-africa-its-art-back.
The head of the Musée du Quai Branly, Stéphane Martin, criticizes the
report’s authors for tainting every collection with the ‘impurity of colonial
crime’. Martin says that the main problem with Savoy and Sarr’s report is that ‘it
sidelines museums in favor of specialists in historical reparations’. He states that
restitution cannot be the only way of dealing with the problem, otherwise ‘we will
empty European museums’. And he maintains that there have long been examples
of transfers of state-to-state ownership. ‘The Getty has returned objects to Italy, the
British Museum to Australia … ’ He argues that the ‘current legal apparatus’ is
sufficient to organize the deaccessioning of such works.11
France’s problems in relation to restitution claims were highlighted by a trial
in Paris of five people accused of attempting to steal a nineteenth-century African
funeral pole from the Quai Branly Museum in Paris. Their actions were said to be
part of an action ‘to protest colonial-era cultural theft and seek reparations’. A
report on 30 September 2020 of the trial in the New York Times records that:
France’s vast trove of African heritage – it is estimated that some 90,000 sub-Saharan African
cultural objects are held in French museums – was largely acquired under colonial times, and many of
these artworks were looted or acquired under dubious circumstances. That has put France at the centre
of a debate on the restitution of colonial-era holdings to their countries of origin … . The restitution
debate came to a head in France when President Emmanuel Macron promised in 2017 to give back
much of Africa’s heritage held by French museums. He later commissioned a report that identified
about two-thirds of the 70,000 objects at the Quai Branly Museum as qualifying for restitution.
But in the two years following the report, only 27 restitutions have been announced and only one
object, a traditional sword, has been returned – to Senegal, in November 2019. The remaining 26
treasures that were designated for restitution, to Benin, are still in the Quai Branly Museum.12
Neil MacGregor, a former Director of the British Museum, is also critical of the
approach taken by President Macron. He describes the proposal to return African
objects in France’s institutions as ‘quite extraordinary’. He says that the Savoy-Sarr
report advocating that everything acquired in the colonial period was acquired
unequally and must be returned unless you can prove otherwise is ‘very extreme’.
Mr MacGregor supports a ‘lending’ approach, and said that during his tenure at the
British Museum the trustees had agreed to a rotating series of loans of the Elgin
Marbles to Greece: ‘We have offered on several occasions … the Greek govern-
ment has said quite clearly it won’t return them, which is an impediment to taking
a loan’.13
Mr MacGregor is quoted in the context of the reopening of the British
Museum after its Covid closure. In an article looking at the origins of the
11
Art World, 28 Nov. 2018, https://news.artnet.com/art-world/quai-branly-president-macron-africa-
restitution-report-1404364.
12
https://www.nytimes.com/2020/09/30/arts/design/france-african-art-trial.html.
13
The Times, 13 Sept. 2019.
Museum’s collections he says that ‘a collection that embraces the whole world
allows you to consider the whole world. That is what an institution such as the
British Museum is for’. The permanent displays showcase many of the Museum’s
collections: the Parthenon Marbles, the Rosetta Stone, the Benin Bronzes:
and other world-class cultural artefacts. These highlights are also, of course, some of the
most contentious objects in the debates about whether pieces that were illicitly or violently
obtained should be returned … recent tragedies such as the destruction of cultural treasures
in war zones, or through ideological zealotry, strengthen the case for the skilled and
devoted protection that places such as the British Museum can provide.14
A leading article in The Times commented that Britain’s wealth in the world’s
artefacts ‘is an obvious legacy of our colonial past and acquisitive nature. It is
helpful, though not always accurate, to argue that only our stewardship has
prevented them from being destroyed’.
Another Times leader dealt with claims made for the repatriation of objects
from university collections:
British universities are voluntarily relinquishing historical artefacts. Indigenous groups and
governments overseas have laid claim to objects that they maintain were illicitly acquired
in Britain’s imperial past, saying that justice demands these should now be repatriated.
With few exceptions the universities have acceded to these demands. The intention of
rectifying historical wrongs is admirable but acquiescing to pressure groups is not the way
to do it.
A controversy in Cambridge exemplifies the problem. A brass cockerel had
stood in the dining hall of Jesus College for decades, having initially been among
hundreds of bronzes taken from Benin City by British troops in 1897. Students
demanded it be returned, and the university agreed that it would be returned. Yet
who in present day Nigeria is the rightful owner? And what did the bronze
originally represent? Historical evidence suggests that the original bronzes were
made in the golden age of Benin from materials brought by European traders: ‘The
history of the object is not one only of imperial aggression. It is multi-faceted’.15
Views differ on what Tiffany Jenkins describes as ‘Museum Wars’. She asks,
given that the Elgin Marbles have spent 200 years in the British Museum,
what relationship do the visitors to the museum have to the Marbles, what relationship do
the British have to the Elgin Marbles, how do these ‘groups’ relate to objects that have
become part of the nation’s cultural life? Could one not argue that the Marbles belong to
the people of London, or to the British, on the grounds that they have become part of
their identity? After all the sculptures have been in this museum for two centuries, visited,
written about, argued over, sketched, painted, referred to in Parliamentary Debates, and
14
Jan Dalley, FT Weekend (29–30 Aug. 2020).
15
The Times, 13 Sept. 2019 and 10 Feb. 2020.
above all revered. Surely, according to the logic of identity politics, they are also part of
British history, as well as Greek history?16
The third category of claims for the return of national treasures and cultural objects
is potentially the most difficult – not least because the issue of the ‘colonial past’ of
countries like France and Britain introduces a political aspect to the difficult
problems of restitution claims.
3 THE DISPUTE BETWEEN THE DUBLIN CITY GALLERY AND THE

NATIONAL GALLERY IN LONDON CONCERNING THE
OWNERSHIP OF THE HUGH LANE IMRESSIONIST PAINTINGS
This section of the article looks at three areas of the dispute between the Dublin
City Gallery and the National Gallery concerning the bequest of the thirty-nine
Hugh Lane Impressionist Paintings.
(1) The Story of the Hugh Lane Dispute

(2) Controversy Over Ownership
(3) Mechanisms for Resolving the Hugh Lane Dispute
3.1 THE STORY of the HUGH LANE DISPUTE17

The dispute relating to the thirty-nine paintings left to the National Gallery in
London by Sir Hugh Lane in his 1913 will has raged for many years and continues:
where should ownership lie? Sir Hugh’s 1913 will stipulated that he bequeathed
the thirty-nine pictures to the London National Gallery. His 1915 codicil directed
that paintings ‘now at the London National Gallery’ should instead be bequeathed
to the City of Dublin. The codicil was not witnessed. At the time of Hugh Lane’s
death, Ireland was part of the United Kingdom. English law applied. The require-
ment was that a codicil to a will required to be witnessed. The same requirement as
to witnesses applies today under the laws of the Republic of Ireland. In law, the
codicil had no effect on the earlier will bequeathing the paintings to the London
Gallery. Lane died in 1915, a passenger on the Lusitania returning to England from
New York: the ship was torpedoed by a German submarine. The will therefore
remained unchanged, and the bequest to London remained unaltered:
16
Tiffany Jenkins, Keeping Their Marbles (Oxford University Press), ISBN 987-0- 19- 965759- 59-9.
17
Based on the article by Anthony Connerty, ‘Ownership, Ethics and Non-Adversarial Settlement
Methods: The Hugh Lane Bequest’, referred to earlier.
In the early 1900s the French Impressionist paintings in the bequest were considered to be
of limited interest in both Dublin and London. They are now thought to have a value of
anything up to one billion GBP.
3.1[a] Hugh Lane: His Early Days
The story behind the will and the codicil which led to the dispute between
London and Dublin over the thirty-nine French Impressionist paintings begins in
Ireland in 1875.
Hugh Lane was born in that year at Ballybrack House, County Cork, Ireland.
He seems to have been the only child of the family actually born in Ireland. His
parents, James and Adelaide Lane, were married in Ireland. They moved to
England following their marriage. At one stage they lived temporarily in Ireland:
James’s aunt had left him a property in a village near Cork. The house was full of
family pictures and furniture. Adelaide Lane is said to have sorted through these
items while waiting for the birth of her child. He arrived on 9 November 1875 and
was christened Hugh Percy. Soon afterwards the family returned England. Hugh
Lane never again spent any time in Cork.
Lane was brought up in England. In his mid-teens his mother arranged for
him to take lessons from a woman who cleaned and restored pictures: lessons
which would later stand him in good stead. By the time of his eighteenth birthday
he needed to earn a living. Through introductions from his aunt, Lady Augusta
Gregory, Lane obtained employment in 1893 in the London gallery of Martin
Colnaghi. He stayed with Colnaghi no more than a year before he started to buy
and sell paintings in his own name. After some time at Colnaghi’s gallery in
London’s Bond Street, Lane was employed by a Mr Turner as manager of the
Marlborough Galleries in nearby Pall Mall. He left those galleries and with a little
of his own capital began to trade as an art dealer on his own behalf, at first in other
premises in Pall Mall and later in Jermyn Street. He made great gains from his
transactions as an art dealer: after a couple of years he had made GBP 10,000.
The equivalent value of Lane’s GBP 10,000 in the late 1890s would be in
excess of GBP 1 million in current values. In a short time – perhaps some five
years – he had made his fortune in London.
3.1[b] Lane in Search of a Dublin Gallery

But whilst Lane spent most of his life in England – and made his home and his
fortune in London – he spent some time in Dublin and was instrumental in the
staging in 1902–1903 of a Winter Exhibition of old masters at the Royal Hibernian
Academy’s premises in Dublin. The success of the Exhibition led to calls by the
President of the Academy for the establishment of a gallery of modern art – as

advocated by Hugh Lane – as being ‘the least that Dublin amongst the English and
Irish cities, should now stand for’.
Later, Lane planned another exhibition at the Royal Hibernian Academy. The
Prince of Wales (the future King George) wrote expressing the hope that all the
best works of the Exhibition might be secured for Dublin. He presented four
pictures: two by Constable and two by Corot. President Theodore Roosevelt sent
a subscription to Lady Gregory. She said that the president’s cheque came with a
letter saying that he ‘believed this gallery would be an important step towards
giving Dublin the position it by right should have’. She added that George Bernard
Shaw gave a bust of himself by Rodin.
Returning to Dublin in October 1905 from travels in Europe, Lane appeared
before a Commission of Inquiry. His evidence was concerned with a site for a
Dublin Municipal Gallery. By the following year, Dublin Corporation resolved to
hire temporary premises to house the valuable paintings which had been offered by
Hugh Lane and others. By September 1907 the acquisition of Clonmel House at
seventeen Harcourt Street in Dublin was approved for the purposes of a temporary
art gallery. Lane wrote an introductory note to the catalogue of the Dublin
Municipal Gallery of Modern Art. There were over 300 items. The artists repre-
sented included Constable, Corot, Manet, Millais, Monet and Renoir. In his
introduction Lane stated that he was depositing ‘my collection of pictures by
Continental artists, and intend to present the most of them, provided that the
promised permanent building is erected on a suitable site within the next few
years’.
The search for a permanent gallery to house Lane’s paintings continued
following the move into the temporary home at Clonmel House. Lane had
pointed out that the provision of a permanent gallery was an essential preliminary
to his formal transfer of that part of the collection which was known as his
‘Conditional Gift of Continental Pictures’. This group had now grown to com-
prise the thirty-nine paintings.
Lane suggested two sites in Dublin for a gallery: one in St Stephen’s Green
and one over Dublin’s River Liffey. Both were proposals from Edward Lutyens.
The first proposal was refused. Lane warned that if the second proposal was not
adopted he would withdraw his ‘Conditional Gift’ from Dublin. Ultimately
Dublin Corporation decided against Lane.
Lane therefore carried out his threat: in September 1913 he removed his
‘Conditional Gift’ of the thirty-nine paintings together with some other paintings
from Clonmel House. Some were lent to Belfast; the rest were transported to
London.
3.1[c] A Home for the Thirty-Nine Paintings in London
Whilst no permanent home was provided in Dublin for the paintings, the situation
in London was different. Lane’s biographer, Thomas Bodkin, stated that as far back
as 1907 Lane had considered lending part of his ‘Conditional Gift’ to the English
National Gallery in the hope that the acceptance of such a loan would convince
Dublin of its importance. There was a suggestion that the British government
might provide a gallery and funds to create a Continental Art Gallery.18
In August 1913 a letter on behalf of the Board of the London National Gallery
accepted unconditionally the loan of the thirty-nine paintings.
On 11 October 1913, Lane made a new will in which he bequeathed various
paintings to the Dublin Gallery of Modern Art ‘other than the group of pictures
lent by me to the London National Gallery, which I bequeath to found a
collection of Modern Continental Art in London’: ‘I bequeath the remainder of
my property to the National Gallery of Ireland (instead of to the Dublin Modern
Art Gallery which I considered so important for the founding of an Irish School of
Painting) [ … ] I hope that this alteration from the Modern Gallery to the National
Gallery will be remembered by the Dublin Municipality and others as an example
of its want of public spirit in the year 1913 [ … ]’.
Sir John Rothenstein, Director of the Tate Gallery in London from 1938 to
1964, said that a gallery of modern foreign art had for some time been regarded as a
matter of urgent importance. However, there was no nucleus of such a collection
until there was the possibility of the transfer to London from Dublin of Sir Hugh
Lane’s provisional gift of pictures.
Rothenstein suggested that the loan of the thirty-nine paintings to the London
National Gallery was actuated in part by the hope that Dublin would accept his
conditions, and in in part to gauge British sentiment about the desirability of a
collection of modern foreign art for London. The loan was accepted on 12 August;
on 8 September Dublin finally rejected Lane’s conditions. The thirty-nine pictures
were removed from the Dublin Municipal Gallery on 27 September and reached
Trafalgar Square some two months later.
In 1917, following the bequest from Sir Hugh Lane, the Tate Gallery was
formally constituted as the National Gallery of Modern Foreign Art. The National
Gallery, built as an addition to the Tate Gallery, was opened by King George V
and Queen Mary in June 1926. Extensions in 1910 and 1926 were funded by
18
T. Bodkin, Hugh Lane and His Pictures (Dublin (Nolan) 1956).
Joseph Duveen to house paintings and drawings by J. M. W. Turner – and modern

foreign art.19
3.1[d] Recognition of Lane’s Work: And His London Home

Lane’s work on behalf of the arts was recognized publicly. He received the
freedom of the City of Dublin in 1908 and was honoured with a knighthood
for his services to Irish art in the 1909 Birthday Honours list celebrating the
birthday of King Edward VII: the eldest son of Queen Victoria and Prince
Albert of Saxe-Coburg and Gotha.
Later that year – and now Sir Hugh Lane – he purchased Lindsey House at
100 Cheyne Walk, Chelsea. Augustus John was asked to paint decorative paintings
for the hall. Lane:
packed the house with treasures of art: pictures, statuary, bronzes, ceramics and furniture; and made it
a veritable museum. The double drawing-room, as I remember it best, was panelled in oak with
carvings by Grinling Gibbons above the mantlepiece, and contained pictures by Titian, Rembrandt,
Goya, Gainsborough and Van Goyen that subsequently formed part of Lane’s bequest to his native
country. In the bay-window stood his writingtable, behind which was an antique marble statue of
Venus, turning to look over her shoulder down the magnificent vista of the Thames as it bends past
the Battersea powerhouse.20
3.1[e] The Death of Hugh Lane: The Will and the Codicil
Thomas Bodkin in his book on Lane sets out the terms of the codicil. It is dated 3
February 1915 and states:
This is a codicil to my last will to the effect that the group of pictures now at the London National
Gallery, which I had bequeathed to that Institution, I now bequeath to the City of Dublin, provided
that a suitable building is provided for them within five years of my death [ … ]. The sole Trustee in
this question is to be my aunt, Lady Gregory.
Hugh Lane’s signature is then followed by a further provision: ‘I would like my
friend Tom Bodkin to be asked to help in the obtaining of this new Gallery of Modern Art
19
Joseph Duveen was the eldest of thirteen children. The Duveen brothers were successful businessmen
and amongst other things traded in antiques. Joseph became one of the world’s leading art dealers. His
success is said to be attributed to the fact that he noticed that Europe had a great deal of art and America
had a great deal of money. He made his fortune by buying works of art from European aristocrats and
selling them to American millionaires. Duveen gave paintings to many British galleries and he donated
considerable sums to repair and expand several galleries and museums. Amongst other things he built the
Duveen Gallery of the British Museum to house the Elgin Marbles, and funded a major extension to the
Tate Gallery. For his philanthropy he was knighted in 1919, created a Baronet in 1927 and raised to the
peerage as Baron Duveen in Feb. 1933. S. N. Behrman’s biography of Joseph Duveen tells The Story of
the Most Spectacular Art Dealer of All Time (Daunt Books), ISBN 978 1 907970 57 3.
20
Bodkin, supra n. 18, at 24–25.
for Dublin. If within five years a Gallery is not forthcoming, then the group of pictures (at the
London National Gallery) are to be sold, and the proceeds go to fulfil the purpose of my
will’.
Lane again signs and dates the codicil 3 February 1915. However, the codicil
was never witnessed.
Sir John Rothenstein stated that there was never any doubt of the validity of
the will ‘and after Duveen learnt of this he decided that since Lane had provided a nucleus of
a foreign collection he would himself offer to provide a gallery to house it’. The outcome
was that the National Gallery of Modern Foreign Art was built as an addition to
the Tate Gallery and opened by King George V on 26 June 1926.
3.2 CONTROVERSY OVER OWNERSHIP
The ownership controversy looks at four matters:

The Involvement of the British and Irish Governments
Lane’s Life in London and Dublin
The Nature of the Lane Controversy
Leave Aside the Legal Position
3.2[a] The Involvement of the British and Irish Governments
The British and Irish governments have long been involved in the disputed own-
ership of the Hugh Lane pictures. That involvement demonstrates the importance
of the Lane Impressionist paintings. The ownership dispute has involved negotia-
tions between both governments and between the Dublin and London galleries.
3.2[a][i] The Taoiseach and the Prime Minister

In John A. Costello’s second term as Taoiseach (Irish Prime Minister), he initiated
negotiations with Harold Macmillan, the British Prime Minister. This eventually
led to a compromise in 1959 under Taoiseach Sean Lemass: half of the Lane
bequest would be lent and shown in Dublin every five years.
Harold Macmillan, in a statement to the House of Commons, said that an
agreement had been concluded between the Commissioners of Public Works of
the Irish Republic and the Trustees of the National Gallery in London, and that
the British government welcomed the arrangements which offered a solution to a
question which had been the subject of controversy for a long time.
In 1993, the agreement was varied so that thirty-one of the thirty-nine
paintings would stay in Ireland. The remaining eight were divided into two
groups, so that four would be lent for six years at a time to Dublin. These eight
include works by Manet, Monet, Pissarro, Renoir, Morisot, Vuillard and Degas. In
2008, in celebration of its first centenary, the Hugh Lane Gallery negotiated with
the National Gallery London for the return of the entire bequest for a period of
three months, the first time they were reunited with the rest of Hugh Lane’s
collection since 1913.
Nevertheless, the controversy over the pictures continues. There is no differ-
ence of view between London and Dublin: both agree that the dispute is about
ownership. More precisely, the dispute is whether, notwithstanding the fact that
the London Gallery has legal ownership (as a consequence of Hugh Lane’s 1913
will), yet that ownership should be transferred by London to Dublin.
Various views have been put forward in recent times. An article was published
on 30 May 2015 in The Guardian under the headline ‘How Ireland was robbed of
Hugh Lane’s great art collection’. The article states that the Irish art collector Hugh
Lane, ‘who drowned on the Lusitania 100 years ago, left his priceless Impressionist
paintings to the people of Dublin. So why are they in the ownership of the
National Gallery in London?’
The article, by Roy Foster, concludes: ‘ … by acknowledgement of the true
ownership of the Lane pictures, however belatedly, a long-standing historical
injustice might actually be righted, and thus, in time, forgotten’.
A similar article appeared in The Independent newspaper on 10 January 2016
under the headline ‘Political pressure mounts on Britain to return disputed Sir
Hugh Lane art collection to Dublin. Dublin City Council is set to debate demand-
ing the return of the paintings to Ireland’.
The article by Doug Bolton states that:
Irish politicians have renewed calls for a disputed collection of impressionist paintings to be
returned to Dublin from London, in the latest episode of a controversy which has lasted
over a century. The paintings, a collection of thirty-nine works by artists including Monet,
Manet and Renoir, were left to London’s National Gallery in the will of Sir Hugh Lane,
an Irish-born art collector who was one of the 1,198 people who died on board the RMS
Lusitania after it was sunk in the Atlantic by a German submarine in 1915. The important
collection was transferred to the National Gallery, before it was discovered that Lane had
made an amendment to his will, in which he said he wanted the paintings to be left to the
National Gallery in Dublin instead.
3.2[a][ii] The President of Ireland

More recently, government involvement in the Hugh Lane bequest was shown at
the opening of an exhibition at the Hugh Lane Gallery in Dublin. In January 2020
Michael D. Higgins, the President of Ireland, said the occasion was:
a most uplifting occasion, celebrating not only a collection of beautiful and enriching
works of art, but also acknowledging an important and a fruitful partnership between the
National Gallery in London and the Hugh Lane Gallery in Dublin.
It is an occasion which marks an important moment in the cultural life of our nation, a
moment when we mark both the selfless patronage and creative vision of Hugh Lane and
the generous spirit of affiliation that has grown between two important cultural institu-
tions. Molaim iad is gabhaim buíochas leo.
The background to today’s event is rich, not only for art history but to the history of
the debate that preceded Independence. The story of the Hugh Lane bequest is a complex
one. It is a story that includes the great human tragedy that was the sinking of the Lusitania
during which 1,200 people lost their lives including the Irish art dealer Sir Hugh Percy
Lane, nephew of Augusta Gregory.
Earlier that year, Sir Hugh Lane had written a codicil to his will withdrawing his
decision to leave this collection of paintings to London’s National Gallery, bequeathing it
instead to Dublin. The codicil was unwitnessed and Hugh Lane’s sudden and tragic death
in May 1915 left a huge question mark over which city could now claim ownership of a
collection of paintings of great historical significance – a collection that includes names
such as Renoir, Manet, Pissaro, Monet and Degas.
The journey to the cultural moment, which this evening constitutes where the future
of the Hugh Lane bequest moves beyond a loan agreement between London and Dublin,
to one of equal partnership, has been at times a difficult one. But it is a journey which has
seen mutual respect and cooperation triumph and Dublin’s role in the care and display of
the paintings will now be acknowledged worldwide in all exhibitions and publications.
So today let us celebrate another important milestone in the life of the Hugh Lane
Gallery, a milestone reached in its contemporary period through respectful dialogue,
unity of purpose and generous cooperation. This is an important moment in the shared
cultural life of two nations, who have now come together in a shared appreciation of the
inclusive capacity of culture and its power to enrich the lives of all those who are enabled
to access it.
3.2[b] Lane’s Life in London and Dublin

Although born in Ireland, Hugh Lane was brought up in England. He began his
career as an art dealer in London at the age of 18, and made his fortune in London.
Later, he was knighted and bought a house in one of the most expensive areas of
London. London was his home. He evidently never bought a house in Dublin, and
on his visits there he stayed in a St Stephen’s Green gentlemen’s club. Dublin rejected
Lane’s favoured sites for a gallery. Dublin did not comply with Lane’s requirement to
provide a home for the paintings within five years of his death (‘I now bequeath to
the City of Dublin, provided that a suitable building is provided for them within five
years of my death’).
London, on the other hand, did provide a gallery. After Joseph Duveen
learned of the validity of the will, he decided that since Lane had provided a
nucleus of a foreign collection he would himself offer to provide a gallery to house
it. The offer was formally accepted in November 1916. In consequence the
National Gallery of Modern Foreign Art was built as an addition to the Tate
Gallery.
3.2[c] The Nature of the Lane Controversy
The Lane controversy does not involve the return of cultural property to its
country of origin, nor its restitution in the case of illicit appropriation. It is not a
case of Irish works of art illegally taken from Ireland. This is not a case of looted
art. This is not a Benin Bronzes case. The ‘Ireland was robbed’ approach does not
stand up to scrutiny, and in any event seems unhelpful. The short answer to the
Dublin claim is that, even if the codicil had been witnessed, Dublin would not
have gained the thirty-nine paintings: Lane’s five-year condition was not satisfied.
London and not Dublin provided the gallery for the Lane collection.
3.2[d] Leave Aside the Strict Legal Position
If the strict legal position in relation to the will and the codicil is put to one side,
and a broad view is taken of Hugh Lane and his life and the nature of the Lane
controversy, what do we have?
Lane was born in Ireland but was brought up in England, made his living and
his fortune in England, and bought a house in England. He was knighted by the
English king. His ‘cronies’ were in Chelsea and he evidently spoke with an English
accent. Lane was a London art dealer and the disputed paintings are mainly by
‘continental’ artists. They are not Irish works of art illegally taken from Ireland.
However, despite all of those factors, and despite the fact that Hugh Lane’s views
on Dublin and London changed from time to time, it is not unreasonable to say
that Lane did have a wish to see a Gallery of Modern Art in Dublin.
Against that background – and on the particular facts of this unique case – is
some form of joint ownership a possible solution? Perhaps reached by one of the
dispute resolution processes suggested below? Say a Lane commission of conciliation
appointed at the request of the two galleries and the British and Irish governments?
3.3 MECHANISMS FOR RESOLVING THE HUGH LANE DISPUTE

Can art law disputes be resolved other than by the application of strict legal
principles? If ethical considerations suggest an answer to a dispute different from
a strict legal answer, would the use of non-adversarial dispute settlement methods
such as arbitration, conciliation/mediation assist? Would such an approach assist in

a dispute between the London and Dublin galleries?
The strict legal position is that ownership is vested in the National Gallery in
London, but an ethical challenge to the London Gallery’s ownership is advanced
by the Dublin City Gallery.
Is the ownership problem capable of being resolved? Is there a mechanism that
might lead to a non-adversarial resolution of the London /Dublin ownership claim?
This section of the article considers possible methods of resolving the Hugh Lane
ownership dispute by way of arbitration, conciliation/mediation and a mechanism
along the lines of the Alabama Claims Commission and the UK /Norway Framework
Agreement.
3.3[a] Arbitration
Arbitration was suggested at one stage in the Lane dispute. Thomas Bodkin said
that a citizens’ committee was set up at his suggestion in Dublin. That committee
‘nominated deputations to interview various Chief Secretaries for Ireland while she
was still under English rule. Mr Duke [Chief Secretary of Ireland] expressed
sympathy with our aims, but said it would be impossible to bring in a Bill during
the War. Mr Short [a subsequent Chief Secretary] proposed, but we refused,
arbitration’.
It is difficult to see how traditional commercial arbitration might help. Even if
wording could be agreed for a compromis (issues to be decided, for example), arbitrators
acting strictly as arbitrators would have little room for manoeuvre: they are not
mediators.
However, arbitration operating on an inter-State level might be appropriate:
perhaps along the lines of the Alabama Claims Commission and the UK/Norway
Framework Agreement.
It is interesting to note that, in the 1959 Agreement between the Dublin and
London galleries, provision is made in relation to damage to paintings for arbitra-
tion in London by an arbitrator appointed in default by the Director of the
National Gallery of Art in Washington, D.C.
3.3[a][i] The Alabama Claims Commission21

The Alabama Claims Commission dealt with a dispute between the US and British
governments concerning the involvement of Liverpool in the US Civil War.
21
Anthony Connerty, International Cotton Arbitration, 29(2) Arb. Int’l 295–318 (June 2013).
During the Civil War one of the leading Liverpool cotton firms acted for the
Confederate government, financing the supply of arms in return for cotton.
The controversy began when Confederate agents contracted for warships from
British boatyards. Disguised as merchant vessels during their construction in order
to circumvent British neutrality laws, the craft were actually intended as commerce
raiders. The most successful of these cruisers was the Alabama, which was launched
on 29 July 1862. It captured fifty-eight Northern US merchant ships before it was
sunk in June 1864 by a US warship off the coast of France. The United States
demanded compensation from Britain for the damage caused by the British-built,
Confederate-operated commerce raiders: the argument was that the British gov-
ernment, by aiding the creation of a Confederate navy, had inadequately followed
its neutrality laws.
The exploits of the Alabama and other ships built in the boatyards on
Liverpool’s River Mersey developed into a diplomatic dispute between Britain
and the United States. The peaceful resolution of the Alabama Claims seven years
after the US Civil War ended set an important precedent for solving serious
international disputes through arbitration, and laid the foundation for greatly
improved relations between Britain and the United States.
The Treaty of Washington and the Alabama Claims Commission had a
number of consequences beyond the immediate dispute concerning the CSS
Alabama. The cause of arbitration as a means of settling disputes peacefully was
advanced.
3.3[b] Mediation/Conciliation
Generally speaking, mediation and conciliation involve the resolution of disputes
by a third party neutral whose aim is to bring the parties to a settlement on terms
acceptable to them. The neutral party has no power to impose a settlement on the
parties.
3.3[b][i] UK/Norway Framework Agreement:

An example of conciliation can be seen in the Framework Agreement between the
United Kingdom and Norway concerning Cross-Boundary Petroleum Co-operation.
The agreement deals with matters such as a ‘cross-boundary pipeline’, a pipeline
crossing the delimitation line transporting petroleum from the continental shelf of one
State to the continental shelf or the territory of the other State. Provision is made in
the agreement for disputes to be resolved by the appointment of a Conciliation
Board, consisting of five members. Each government shall designate two members,
and the four members so designated shall designate the fifth (who shall not be a
national of or habitually reside in the United Kingdom or in the Kingdom of
Norway) who will act as the Chairman of the Conciliation Board. If either govern-
ment fails to designate one or more members of the Conciliation Board within one
month of a request to do so, either government may request the President of the
International Court of Justice to designate the required number of members.
Mediation/conciliation offers the flexibility that would be needed to deal with
the Lane controversy.
3.3[c] Commission of Conciliation to Settle the Hugh Lane Dispute?

But is the London–Dublin controversy capable of resolution? Is London likely to
agree to a settlement on ownership? Lane today, Elgin Marbles tomorrow?
The London–Dublin dispute can perhaps be regarded as being in a special, if
not unique, category. Could a commission on the lines of the Alabama Claims
Commission and the UK/Norway Framework Agreement be used to resolve the
Hugh Lane thirty-nine paintings dispute?
3.3[c][i] Outline for a Commission of Conciliation for the Hugh Lane Dispute
Such a commission might be fashioned along the lines of the Alabama Claims
Commission and the UK/Norway Framework Agreement. Five members, two
appointed by the British government and two by the Irish government, the fifth
(who shall not be a national of or habitually reside in the United Kingdom or in
the Republic of Ireland) to be chosen by the four appointees, and failing agree-
ment to be appointed by the President of the International Court of Justice.
The Commission’s Terms of Reference to be drawn up and agreed between
the two governments. Such Terms of Reference to include the commission’s
approach to its task and issues to be decided. For example, to consider general
legal principles, and not simply the provisions of English law. To look at methods
used to resolve art law disputes in other jurisdictions. To hear evidence and views
from appropriate parties and organizations: not necessarily only British and Irish
views.
The members of the commission to meet in both London and Dublin over a
period of time for the purpose of taking evidence and discussing its approach to the
issues. A time limit to be fixed by which the commission is to deliver its report or
decision. Whether the commission’s procedure is described as arbitration, media-
tion or conciliation, should its decision be binding on the respective governments?
Given the history of the Lane controversy, it may be that the commission’s
decision should not be binding, but should be one which each government should
consider with care and not reject save for exceptional reasons.
Depending on the outcome, legislation would be required by both govern-
ments. The National Gallery makes it clear that:
The National Gallery’s Trustees are not permitted to de-accession their collection, but can
only make transfers to certain British museums or galleries. As early as 1 December 1916,
the Trustees indicated that, if the National Gallery’s ownership of the pictures was
recognised, they would consider some form of loan of the paintings to Dublin. This
principle was reiterated in 1926, and again in a report of 1957 by Sir Denis Mahon (1910–
2011), then a National Gallery Trustee.22
4 METHODS FOR DEALING WITH THE SETTLEMENT OF ART-

RELATED CONFLICTS BY DISPUTE RESOLUTION SYSTEMS
SUCH AS MEDIATION AND ARBITRATION
Broadly, there are three methods of resolving disputes: by litigation, by arbitration
and by various types of ADR (alternative dispute resolution) such as mediation. In
the context of the Hugh Lane dispute – involving galleries in Dublin and London
and involving the British and Irish governments – a fourth dispute resolution
process was suggested earlier: a claims commission.
4.1 LITIGATION
Litigation in the national courts may be appropriate where, for example. a ruling
from a judge is seen as the preferred option. Litigation is often used in relation to
art–law disputes. The proceedings in the United States involving Matisse’s Portrait
of Greta Moll is an example.
4.2 ARBITRATION AND ‘MULTI-STEP CLAUSES’: AUCTION HOUSES AND

ARBITRATION BODIES
Arbitration is an alternative method of resolving art–law disputes. There are

numerous international arbitration institutions: LCIA in London, International
Chamber of Commerce (ICC) in Paris, AAA in New York – and many others.
22
See the National Gallery information on the Hugh Lane paintings: The Hugh Lane Bequest – The Story
of Masterpieces Collected by Sir Hugh Lane, https://www.nationalgallery.org.uk/about-us/history/collec
tors-and-benefactors/sir-hugh-lane.
A contract of sale might provide for disputes to be resolved by arbitra-

tion – very often in the form of a ‘multi-step clause’ providing for arbitration to
be used only if and when mediation has been tried and failed.
Clause 11 of Christie’s Conditions of Sale provides a ‘multi-step clause’
requiring disputes to be submitted to mediation under the AAA Mediation
Rules. If the mediation process fails to resolve the dispute the matter then proceeds
to arbitration under the AAA’s International Arbitration Rules:
Any dispute, controversy or claim arising out of, relating to, or in connection
with these Conditions of Sale, or the breach, termination, interpretation or
validity thereof (‘Dispute’), shall be submitted for mediation administered by the
American Arbitration Association’s International Centre for Dispute Resolution,
or its successor (‘ICDR’), in accordance with its Mediation Rules. If the Dispute,
or any portion of the Dispute, is not settled within sixty days from the date when
mediation is initiated, then, except in the circumstances specified below, the
Dispute shall be submitted for binding arbitration administered by ICDR in
accordance with its International Arbitration Rules. The arbitration shall be con-
ducted by one arbitrator, who shall be appointed within thirty days after the
initiation of the arbitration.23
Clause 18 of Bonhams Auction Registration Form provides a more elaborate
multi-step mediation/arbitration procedure.24
The London Court of International Arbitration provides a model ‘multi-step
clause’:
In the event of a dispute arising out of or relating to this contract, including any question
regarding its existence, validity or termination, the parties shall first seek settlement of that
dispute by mediation in accordance with the LCIA Mediation Rules, which Rules are
deemed to be incorporated by reference into this clause.
If the dispute is not settled by mediation within [ … ] days of the commencement of
the mediation, or such further period as the parties shall agree in writing, the dispute shall
be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are
deemed to be incorporated by reference into this clause.
The language to be used in the mediation and in the arbitration shall be [ … ]. The
governing law of the contract shall be the substantive law of [ … ].
In any arbitration commenced pursuant to this clause,
(i) the number of arbitrators shall be [one/three]; and
(ii) the seat, or legal place, of arbitration shall be [City and/or Country].
23
https://www.christies.com/pdf/onlineonly/ECOMMERCE%20CONDITIONS%20OF%20SALE%
20-%20NY%20-%20August%202019.pdf.
24
http://images2.bonhams.com/original?src=Images/marketing/25101_FillableBIDDERREGISTRA
TIONTheScottsdaleAuction.pdf.
The ICC and the World Intellectual Property Organisation (WIPO) provide
similar model multi-step clauses.25
4.3 MEDIATION
Litigation and arbitration are each processes in their own right. They are separate
but alternative systems. They cannot be mixed. But mediation is both a process in
its own right and a process that can be mixed with both litigation and arbitration.
Parties to an agreement can provide that, in the event of a dispute arising, they will
first attempt to resolve that dispute through mediation; and if that fails, they will
take that dispute to arbitration – or litigation: the multi-step process described
above.
The aim of mediation is to produce a negotiated settlement. The process is
conducted by a neutral third party, and is voluntary: unlike litigation and arbitra-
tion, mediation does not lead to a binding decision. The terms of any settlement
reached must be converted into contractual form so as to be enforceable as a
contract. However, a recent development may result in the enforcement of
settlements reached through mediation.26
Unlike the more formal methods of dispute resolution of litigation and
arbitration – where a judge or arbitrator reaches a decision which will be imposed
on the parties and which may be enforced in a national court – mediation is a more
informal procedure. Under that procedure, the third-party neutral seeks to assist
the parties to reach a resolution of the dispute on terms which are acceptable to
those parties. In such a process, the parties, with the assistance of the mediator, are
in control of events. The process is purely voluntary: the parties can walk away
from the mediation at any time.
The methods that might be used by the mediator in seeking to guide the
parties to a settlement of their dispute have been given various labels: most
commonly ‘facilitative’ or ‘evaluative’.
The mediator aims to facilitate a settlement of the dispute by, for example,
taking a problem-solving approach to the issues between the parties.
Alternatively, the mediator may seek to steer the parties towards resolving
their differences by evaluating the issues.
The mediator might use the evaluative process (‘this is what I think will be the
outcome if this case has to be litigated in front of a judge’) at a stage where
25
Anthony Connerty, ADR as a ‘Filter’ Mechanism: The Use of ADR in the Context of International
Disputes, 79 Arb. 120–133 (2013).
26
The Singapore Convention will seek to deal with the enforcement of international settlement
agreements resulting from mediation: United Nations Convention on International Settlement
Agreements Resulting from Mediation (New York 2018) (the ‘Singapore Convention on Mediation’).
discussions have become deadlocked and the mediation is headed towards failure.
Can the deadlock be broken and a settlement be achieved if the mediator spells out
a view of the likely outcome if the dispute that is the subject of the failed
mediation is taken to a hearing before a judge?
Interesting though these labels may be, the reality is that a mediator may try
various approaches in an effort to bring the parties to an amicable settlement. If
creative problem-solving suggestions from the mediator fail to ‘facilitate’ a settle-
ment and deadlock ensues, the mediator may suggest that an ‘evaluation’ of the
case may break the impasse.27
4.4 ARBITRATION AND MEDIATION: THE COURT OF ARBITRATION FOR ART: CAFA
CafA, based in The Hague, was founded to resolve art-related disputes through
mediation and arbitration. The Court is a collaboration between the Netherlands
Arbitration Institute and the Authentication in Art foundation:
Looking to speed up the process of settling disputes and make it all less costly, a Dutch-
based organization, the Netherlands Arbitration Institute, has partnered with the nonprofit
Authentication in Art to establish a first-of-its-kind mediation and arbitration tribunal in
The Hague …
Perhaps the most significant benefit of arbitration to some parties in a dispute is total
confidentiality, which means that outsiders need not ever learn of a problem and how it
was resolved, as opposed to legal proceedings, which are published …
The fact that the authenticity of a work of art has been challenged, or that it might have
been stolen, may damage the reputation of that object, regardless of what a court may
decide. Someone looking to sell an artwork would not want a cloud over its authenticity
or title and seek the quiet assurance of an arbitrator’s ruling.
It is for that reason that most major auction houses require disputes between buyers and
the auctioneers to be resolved by arbitration. … On its terms and conditions page, the
Dallas, Texas–based Heritage Auctions state in all capital letters, “THE PARTIES
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY” adding that any “claim
shall be presented in confidential binding arbitration before a single arbitrator, … [and t]he
arbitration shall be conducted in Dallas, Dallas County, Texas”.28
The most recent version of the CAfA Arbitration Rules entered into force in
January 2019 and CAfA began accepting cases in April 2019.29
27
Connerty, supra n. 25, at 121.
28
https://authenticationinart.org/pdf/artmarket/new-court-art.pdf.
29
https://www.cafa.world/.
4.5 CLAIMS COMMISSION
A Claims Commission along the lines of the Alabama Claims Commission and the
UK/Norway Framework Agreement is suggested as a possible means of dealing
with the Hugh Lane dispute between galleries in Dublin and London: a dispute
which has involved both the Irish and British governments.
5 CONCLUSIONS
This article has looked first at claims for the return of national treasures and cultural
objects: an area where claims are increasing and where views differ widely.
Next, the article has considered the dispute between the Dublin City Gallery
and the National Gallery in London concerning the ownership of the Hugh Lane
Impressionist paintings: a dispute that has lasted a century and continues.
Would a commission on the lines of the Alabama Claims Commission and the
UK /Norway Framework Agreement help to bring the dispute to an amicable
settlement? The importance of the Hugh Lane bequest is demonstrated by the
involvement of the British and Irish governments and by the speech delivered by
the President of Ireland at the opening of the exhibition at the Hugh Lane Gallery
in Dublin in January 2020.
Finally, the article has examined methods for dealing with the settlement of
art-related conflicts by dispute resolution systems such as arbitration and mediation.
Art Law disputes and disputes concerning art and cultural objects are fields of
increasing importance worldwide: the creation of the Court of Arbitration for Art
demonstrates that fact.
6 APPENDIX
The National Gallery website sets out the current distribution of the Hugh Lane
bequest pictures between London and Dublin:
Group A, currently in London
NG 3259, Manet, Eva Gonzalès
NG 3264, Morisot, Summer’s Day
NG 3265, Pissarro, View from Louveciennes
NG 3268, Renoir, The Umbrellas
Group B, currently in Dublin
NG 3274, Degas, Beach Scene
NG 3260, Manet, Music in the Tuileries Gardens
NG 3262, Monet, Lavacourt under Snow
NG 3271, Vuillard, The Mantelpiece (La Chiminée)
Paintings permanently at the National Gallery

NG 3237, Corot, Avignon from the West
NG 3244, Daumier, Don Quixote and Sancho Panza
NG 3252, Studio of Ingres, The Duc d’Orléans
NG 3266, Puvis de Chavannes, Beheading of John the Baptist
Paintings on long-term loan to Dublin
NG 3233, Barye, The Forest of Fontainebleau
NG 3234, Bonvin, Still Life with Books, Papers and Inkwell
NG 3235, Boudin, The Beach at Tourgéville-les-Sablons
NG 3236, Brown, The Performing Dog
NG 3238, Corot, Summer Morning
NG 3239, Follower of Corot, A Peasant Woman
NG 3242, Courbet, The Diligence in the Snow
NG 3243, Studio of Courbet, The Pool
NG 3241, Courbet, In the Forest
NG 3240, After Courbet, Self Portrait
NG 3245, Daubigny, Portrait of Honoré Daumier
NG 3246, Diaz,Venus and Two Cupids
NG 3248, Fantin-Latour, Still Life with Glass Jug, Fruit and Flowers
NG 3249, Forain, Legal Assistance
NG 3250, French School, A Black Woman
NG 3251, Gérôme, Portrait of Armand Gérôme
NG 3253, Imitator of Jongkind, Skating in Holland
NG 3254, Madrazo, Portrait of a Lady
NG 3255, Mancini, The Customs (La Douane)
NG 3256, Mancini, On a Journey (En Voyage)
NG 3257, Mancini, The Marquis del Grillo
NG 3258, Mancini, Aurelia
NG 3261, Maris, A Girl feeding a Bird in a Cage
NG 3263, Monticelli, The Hayfield
NG 3267, Puvis de Chavannes, A Maid Combing a Woman’s Hair
NG 3269, Possibly by Théodore Rousseau, Moonlight: The Bathers
NG 3270, Stevens, The Present
ISDS Reform: Analysis on Establishing a
Multilateral Investment Court System
Seung-Woon LEE*
The idea of establishing an appeal mechanism for Investor-State Dispute Resolution (ISDS)
awards is not novel. Currently, the United Nations Commission on International Trade Law
Working Group III (WG III) is discussing potential reform of the ISDS system, including an
appeal mechanism and a Multilateral Investment Court (MIC) system. This article does not
argue whether the ISDS reform is necessary. Instead, it will use WG III’s finding that the
ISDS reform is necessary as a starting point to analyse the establishment of a MIC system. The
article will briefly review commonly raised reasons for the ISDS reform and the European
Union’s (EU’s) proposal to create the MIC system. It will then analyse the structure of the
appellate mechanism – a stand-alone appellate body – especially focusing on the challenge of
arbitrators and the enforcement of appellate awards. The article considers whether, if the MIC
system is adopted, to create a single MIC system or a multiple MICs system. Finally, it notes
that there are issues that need further consideration on creating the MIC system, specifically the
scope of review and the double hatting issue.
Keywords: Appellate award, Appellate mechanism, Appellate tribunal, ISDS reform, Multilateral
Investment Court (MIC), Stand-alone appellate body, UNCITRAL Working Group III (WG III)
1 INTRODUCTION
Initiatives on Investor-State Dispute Settlement (ISDS) reform are not a new
concept.1 In 2004, the International Centre for Settlement of Investment Disputes
(ICSID) considered reforming ISDS, including the creation of an ICSID appeals
facility.2 ICSID ultimately dropped its discussion on creating an appellate mechanism
*
J.D. Penn State Law, LL.M. Stockholm University, International Commercial Arbitration Law. The
author would like to thank Mr Steven Finizio, Mr C. Radu Giosan, Ms. Danielle Morris, and Dr
Patricia Shaughnessy for their insightful feedback and comments. The views expressed in this article
reflect the personal views of the author. Email: seunle07@gmail.com.
1
See Malcolm Langford, Michele Potestà, Gabrielle Kaufmann-Kohler & Daniel Behn, Special Issue:
UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions, 21 J. World Invest. &
Trade 167 (2020).
2
See Possible Improvements of the Framework for ICSID Arbitration, ICSID Secretariat, Discussion Paper (22
Oct. 2004), https://icsid.worldbank.org/en/Documents/resources/Possible%20Improvements%20of
%20the%20Framework%20of%20ICSID%20Arbitration.pdf (accessed 3 July 2020).
Lee, Seung-Woon. ‘ISDS Reform: Analysis on Establishing a Multilateral Investment Court System’.
Arbitration: The Int’l J. of Arb., Med. & Dispute Mgmt 87, no. 4 (2021): 484–506.

ISDS REFORM 485
by concluding it was premature to discuss.3 In 2017, the United Nations Commission

on International Trade Law Working Group III (WG III) took a task to discuss a
broad range of ISDS reform options to address issues confronted by the current ISDS
regime.4 The mandate of the WG III discussion is limited to procedural aspects.5 WG
III discusses both incremental and structural reform. The incremental reform
approach focuses on improving some features of the ISDS system without changing
the overall structure of the current ISDS regime.6 On the other hand, structural
reform (which is mainly supported by the European Union [EU]) suggests changing
the overall structure of the current ISDS system by creating an appellate mechanism
such as a Multilateral Investment Court (MIC).7
This article does not discuss whether ISDS reform is required. Indeed, much
has already been written on this controversial topic. Rather, it will use as a starting
point WG III’s finding on the necessity of ISDS reform,8 and discuss the con-
sequences and further considerations for creating the MIC system.
In section 2, this article will briefly address commonly raised reasons for ISDS
reform and summarize the EU’s approach to the creation of the MIC system. In
section 3, the article will address the structure of the potential appellate system. In
doing so, it will consider the advantages and disadvantages of a stand-alone appellate
body and the MIC system considering issues such as the procedure for challenging
arbitrators, the enforceability of an award rendered by an appellate tribunal, and
achieving consistency in awards. It will then address whether to create a single MIC
system or a multiple MICs system. Section 4 will address further considerations for
creating the MIC system, focusing on issues of the scope of review and double hatting.
2 THE REASONS FOR CREATING AN APPELLATE SYSTEM AND

THE EU’S PROPOSAL
2.1 THE REASONING UNDERLYING THE PROPOSED APPELLATE SYSTEM REFORM
There are both substantive and procedural reasons for proposing ISDS reform and
the creation of an appellate system. Frequently raised reasons include (1)
3
Suggested Changes to the ICSID Rules and Regulations, Working Paper of the ICSID Secretariat (12 May
2005), para 4, https://icsid.worldbank.org/en/Documents/resources/Suggested%20Changes%20to%
20the%20ICSID%20Rules%20and%20Regulations.pdf (accessed 3 July 2020).
4
Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Fourth
Session (Vienna, 27 November–1 December 2017), A/CN.9/930/Rev.1 (19 Dec. 2017), https://undocs.
org/en/A/CN.9/930/Rev.1 (accessed 3 July 2020).
5
Langford, Potestà, Kaufmann-Kohler & Behn, supra n. 1, at 172.
6
Ibid., at 175.
7
Ibid.
8
Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Seventh
Session (New York, 1–5 April 2019), A/CN.9/970 (9 Apr. 2019), https://undocs.org/en/A/CN.9/970
(accessed 3 July 2020).
consistency and the predictability of arbitral awards; (2) the states’ right to interpret
a treaty; (3) concern about arbitrators’ impartiality and independence; and (4)
procedural tactics such as parallel proceedings.9 These reasons are discussed below.
2.1[a] Consistency and Predictability
The purported lack of consistency and predictability of arbitral awards has been
raised consistently as one of the reasons to establish an appellate system.10 However,
it is important not to overemphasize the importance of pursuing consistency and
predictability.11 Commentators have already discussed this issue and noted that it is
important to consider the origin of inconsistencies.12
Inconsistency in arbitral awards can arise when different tribunals reach different
outcomes involving similar factual circumstances, or interpret treaty provisions such as
the fair and equitable treatment (FET) standard or most favoured nation (MFN) clauses
differently.13 This can be a problem when claims involve the same treaty. For example,
if two different tribunals held divergent interpretations of an MFN clause in the same
treaty, there is less predictability to the outcome of the case involving the same treaty.
Thus, avoiding this type of inconsistency could increase predictability and efficiency.
In other cases, different tribunals can reach inconsistent interpretations on
treaty provisions when different treaties contain similar language. However, the
appearance of inconsistency under different treaties involving MFN clauses should
be distinguished from inconsistency involving the same treaty. Apparent incon-
sistency can result due to different treaties being applicable to a case.14 Currently,
the ISDS system is composed of more than 3,300 international investment agree-
ments (IIA).15 Inconsistency due to different treaty standards and language, there-
fore, is somewhat natural.16
9
See Mark Feldman, Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance
of Power, 32(2) ICSID Rev. 528, 529 (2017). See also Piero Bernardini, The European Union’s Investment
Court System – A Critical Analysis, 35(4) ASA Bull. 812, 815 (2017); Elsa Sardinha, The Impetus for the
Creation of an Appellate Mechanism, 32(3) ICSID Rev. 503, 504 (2017); Submission from the European
Union, A/CN.9/WG.III/WP.145 (12 Dec. 2017), https://undocs.org/en/A/CN.9/WG.III/WP.145
(accessed 23 May 2020).
10
Jose Manuel Alvarez Zarate, Legitimacy Concerns of the Proposed Multilateral Investment Court: Is Democracy
Possible?, 59 B.C. L. Rev. 2765, 2766 (2018).
11
See Lee M. Caplan, ISDS Reform and the Proposal for a Multilateral Investment Court, 46 Ecology L.Q. 53,
57 (2019).
12
Ibid. See also Bernardini, supra n. 9, at 822.
13
See Andrea Menaker, Seeking Consistency in Investment Arbitration: The Evolution of ICSID and
Alternatives for Reform, in International Arbitration: The Coming of a New Age? 614 (Albert Jan Van den
Berg ed. 2013).
14
Bernardini, supra n. 9, at 822.
15
Albert Jan van den Berg, Appeal Mechanism for ISDS Awards: Interaction With the New York and ICSID
Conventions, 34(1) ICSID Rev. 156, 159 (2019).
16
Ibid., at 157.
ISDS REFORM 487
Additionally, pursuing consistency on standards such as FET under different

treaties would not be achieved by creating an appellate mechanism under the
current WG III debate which is only considering procedural reform.17 Rather, this
kind of consistency could be achieved by entering into a treaty to unify ‘the
language of substantive obligations’ in IIAs, which is not in the scope of WG III
mandate and is another controversial topic.18
Finally, it must be emphasized that consistency is different from correctness.
Establishing an appellate mechanism could achieve greater consistency compared
to the current ISDS system.19 However, there is also a possibility that it could lead
to decisions that are consistently inaccurate.20 WG III recognized this possibility and
stated that ‘[i]t was also agreed that seeking to achieve consistency should not be to
the detriment of the correctness of decisions, and that predictability and correctness
should be the objective rather than uniformity’.21
2.1[b] State’s Right to Interpret a Treaty

The lack of a binding effect of a state’s right to interpret treaties or the tribunal’s
tendency to not consider the state’s treaty interpretation has been criticized in the
current ISDS regime.22 In this context, Member States have suggested adopting a
joint (multilateral) treaty interpretation by treaty parties in WG III. It is suggested that
treaty parties release a joint statement on treaty interpretation to make their inter-
pretation binding on arbitral tribunals.23 Another suggestion is to use a unilateral
statement on treaty interpretation.24 A non-disputing treaty party can release a
unilateral statement on treaty interpretation.25 For example, when a Korean investor
17
See Bernardini, supra n. 9, at 822. See also ibid., at 158 (‘the first step towards remedying the divergence
would be to unify the substantive standards of investment protection. However, that approach is
missing from the Working Group’s mandate. The approach seems not to unify the differing sub-
stantive provisions in the 3,300 IIAs, but rather to offer a procedural solution in the form of an appeal
mechanism or a multilateral court system’.).
18
Alvarez Zarate, supra n. 10, at 2772.
19
Feldman, supra n. 9, at 538. See also Caplan, supra n. 11, at 57; Anders Nilsson & Oscar Englesson,
Inconsistent Awards in Investment Treaty Arbitration: Is an Appeals Court Needed?, 30 J. Int’l Arb. 561, 576
(2013).
20
Feldman, supra n. 9, at 530.
21
Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Fifth Session
(New York, 23–27 April 2018), A/CN.9/935 (14 May 2018), para. 26, https://undocs.org/en/A/CN.
9/935 (accessed 23 May 2020).
22
See Possible Reform of Investor-State Dispute Settlement (ISDS) – Submission from the Government of the
Russian Federation, A/CN.9/WG.III/WP.188, 3 (30 Dec. 2019), https://undocs.org/en/A/CN.9/
WG.III/WP.188 (accessed 6 June 2020).
23
See Possible Reform of Investor-State Dispute Settlement (ISDS) – Interpretation of Investment Treaties by
Treaty Parties, A/CN.9/WG.III/WP.191 (17 Jan. 2020), para. 5, https://undocs.org/en/A/CN.9/
WG.III/WP.191 (accessed 6 June 2020).
24
Ibid.
25
Ibid., para. 30.
brings a claim against the United States under an MFN clause, the Korean govern-
ment could release a unilateral statement interpreting an MFN clause.26 The tribunal
could consider a unilateral statement without being bound by it. These suggestions
are already included in some modern IIAs.27
Under a joint treaty interpretation, treaty parties could jointly interpret
specific provisions of the treaty even after the treaty has entered into force.28 In
WG III, Russia submitted that if a joint interpretation is binding, then the arbitral
tribunal would be precluded from ‘introducing new meaning into the text of an
international treaty or taking decisions based on considerations that go beyond the
interpretation of the law’.29
Whether a joint treaty interpretation should bind the tribunal on a pending
case needs special attention. Currently, the Dutch Model BIT expressly precludes
the binding effect of a joint interpretation on a pending case.30 In the case of the
EU-Canada Comprehensive Economic and Trade Agreement (CETA), Article
8.31 provides that ‘the CETA Joint Committee may decide that an interpretation
shall have binding effect from a specific date’. However, the Court of Justice of the
European Union (CJEU) held that the CETA Joint Committee’s interpretation
does not retroactively bind the tribunal.31 Other IIAs are silent on whether a joint
interpretation binds the tribunal on a pending case (e.g., United States-Korea FTA
and the India-Kyrgyzstan BIT).
Retroactive application of a binding joint interpretation could compromise
foreign investors’ rights since the joint interpretation did not exist when the
dispute was filed. Moreover, the independence of the tribunal is an important
factor to consider. If a joint interpretation could bind a tribunal on a pending case,
it could compromise the tribunal’s ability to adjudicate the dispute between the
parties. By agreeing to ISDS in IIAs, contracting states delegate the power to
resolve disputes between foreign investors and states to the tribunal. The ISDS
tribunal should adjudicate a case, interpret a treaty, and apply it. Upon making this
determination, the tribunal should independently and impartially make its decision.
Requiring a joint interpretation to be binding on a pending case may compromise
26
See United States-Korea FTA, Art. 11.20 (‘The non-disputing Party may make oral and written
submissions to the tribunal regarding the interpretation of this Agreement. On the request of a
disputing party, the non-disputing Party should resubmit its oral submission in writing’.).
27
For example, see United States-Mexico-Canada Agreement (USMCA); Korea-Republic of Viet Nam
FTA; United States-Korea FTA; India-Kyrgyzstan BIT.
28
See Possible Reform of Investor-State Dispute Settlement (ISDS) Submission from the Government of Morocco,
A/CN.9/WG.III/WP.161 (4 Mar. 2019), para. 9, https://undocs.org/en/A/CN.9/WG.III/WP.161
29
See A/CN.9/WG.III/WP.188, supra n. 22, at 3.
30
Dutch Model BIT, Art. 24(2).
31
CJEU, Opinion 1/17 of the Court (30 Apr. 2019).
ISDS REFORM 489
the tribunal’s power to independently interpret a treaty and apply it to a pending

dispute.
Some modern BITs provide a mechanism where a non-disputing treaty party can
submit treaty interpretations to the tribunal.32 Unilateral submissions cannot be bind-
ing on the tribunal but could be used as guidance. However, in reality, a non-
disputing treaty party submission is not often utilized.33 A study by the Columbia
Centre for Sustainable Investment (CCSI) identified that the reasons why a non-
disputing treaty party may elect not to submit unilateral submission include ‘cost-
benefit calculations’, lack of knowledge of pending cases, or ‘political considerations’.34
2.1[c] Arbitrators’ Impartiality and Independence
Concerns related to the arbitrator’s role in the current ISDS regime have been
raised as one of the reasons to reform the ISDS system.35 These concerns include
(1) states being hesitant to give arbitrators the power to rule on their right to
regulate or public policy, and (2) lack of independence and impartiality of
arbitrators.36 Especially, issues on lack of independence and impartiality include
concern over a party-appointed arbitrator, repeat appointments, and the so-called
‘double hatting’ issue, where arbitrators act as both counsel and arbitrator.37
The creation of the MIC could cure some of the issues raised above.
However, the appointment of arbitrators in a new system could also raise new
issues. Under the current EU proposal, MIC arbitrators would be appointed by the
states. With this mechanism, there could be various issues such as (1) lack of
diversity of arbitrators to represent various states’ interests, and (2) risk of appoint-
ment becoming politicized.38
In relation to lack of diversity, the panel of arbitrators within the MIC could
not reflect all Member States’ interest if the number of panels is not large enough
to include arbitrators from every Member State, which would most likely not be
32
See United States-Korea FTA, Art. 11.20.
33
See Lise Johnson, The Role of States in Treaty Interpretation (Columbia Centre for Sustainable Investment
(CCSI)) on Webinar on Treaty Parties’ Involvement and Control Mechanisms in Treaty Interpretation, https://
uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/johnson_treatyinterpretation
webinar.pdf (accessed 6 June 2020) (out of 480 concluded IIA ISDS cases, only ten cases had non-
disputing state submission on treaty interpretation).
34
Ibid.
35
Alvarez Zarate, supra n. 10, at 2766.
36
See Sardinha, supra n. 9, at 504.
37
See A/CN.9/935, supra n. 21.
38
See Bernardini, supra n. 9, at 828. See also Alvarez Zarate, supra n. 10, at 2785; Possible Reform of
Investor-State Dispute Settlement (ISDS) Submission from the Government of Bahrain, A/CN.9/WG.III/
WP.180 (29 Aug. 2019), paras 26–38, https://uncitral.un.org/sites/uncitral.un.org/files/wp_180_
bcdr_clean.pdf (accessed 29 May 2020).
the case.39 Some Member States may have greater numbers of arbitrators on the
roster due to their larger contribution to the MIC budget.40
Appointment of arbitrators to the MIC by states could ‘create a risk of judicial
appointments becoming politicized’.41 For example, the WTO model of the
appointment has been widely criticized for becoming ‘politicized and unbalanced
against SMEs’.42 Thus, it is highly important to establish a transparent and reliable
mechanism to avoid these potential risks on appointing arbitrators in establishing
an appellate mechanism.
To address the concerns related to the arbitrator, WG III is also addressing
the issue of appointing arbitrators and their ethical requirements.43 On 1 May
2020, the Secretariats of ICSID and UNCITRAL published the Draft Code of
Conduct for Adjudicators in Investor-State Dispute Settlement (Draft Code of
Conduct).44 The Draft Code of Conduct addresses impartiality and indepen-
dence of arbitrators and their duty to conduct proceedings with ‘integrity, fair-
ness, efficiency and civility’.45 The publication of the code of conduct for ISDS
tribunals could provide better guidelines specifically tailored to ISDS proceed-
ings. The Code can be widely used to improve impartiality and independence of
arbitrators similar to the IBA Guidelines on Conflicts of Interest in International
Arbitration.
39
See Initial Draft on Standing Multilateral Mechanism: Selection and Appointment of ISDS Tribunal Members
and Related Matters, para. 14, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/
uncitral/en/standing_multilateral_mechanism_-selection_and_appointment_of_isds_tribunal_mem
bers_and_related_matters__0.pdf (accessed 13 Sept. 2021). (WG III acknowledges that other inter-
national courts only have limited numbers of judges from Member States. Draft provision 4 para. 2
provides an option to retain greater numbers of tribunal members on a part-time basis for greater
diversity.)
40
See ibid., para. 19 (WG III may consider in a later stage, whether the nationality of tribunal members
should play any role in the appointment of the panel. Additionally, whether to require that no two
members shall be appointed from the same Member States).
41
A/CN.9/WG.III/WP.180, supra n. 38, para. 29.
42
See Alvarez Zarate, supra n. 10, at 2785.
43
A/CN.9/935, supra n. 21, para. 45.
44
Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement (1 May 2020), https://icsid.
worldbank.org/en/Documents/Draft_Code_Conduct_Adjudicators_ISDS.pdf (accessed 23 May
2020). On 19 Apr. 2021, Version 2 of the Draft Code was published, https://uncitral.un.org/sites/
uncitral.un.org/files/media-documents/uncitral/en/draft_code_of_conduct_v2.pdf accessed 20 May
2021. On 22 of September 2021, Version 3 of the Draft Code was published, https://uncitral.un.
org/sites/uncitral.un.org/files/media-documents/uncitral/en/code_of_conduct_v3.pdf (accessed 23
Sept. 2021).
45
https://uncitral.un.org/en/codeofconduct (accessed 23 May 2020).
ISDS REFORM 491
2.1[d] Parallel Proceedings
Parallel proceedings in the current ISDS regime have been frequently criticized.46
In the current ISDS regime, an investor may pursue its claim in different fora, such
as international commercial arbitration and domestic courts, rather than pursuing
ISDS proceedings.47 Parallel proceedings could lead to inconsistent and contra-
dictory outcomes or sometimes result in double recovery. Not all parallel proceed-
ings are problematic; there could be legitimate circumstances where access to
justice warrants parallel proceedings.48 The current ISDS regime addresses parallel
proceedings based on (1) lis pendens, (2) res judicata, (3) consolidation and joinder,
and (4) abuse of process.49 However, there has been criticism that the application
of these methods has been limited and largely ineffective.50
The effectiveness of controlling parallel proceedings would ultimately depend
on the structure of an appellate mechanism. For example, the ISDS reform may
lead to a multiple MICs system rather than creating a single MIC. In that case,
consolidation among different MICs may not be possible absent unified procedural
rules allowing consolidation among the different appellate systems. A similar issue
arises in international commercial arbitration where consolidation between differ-
ent arbitral institutions is not possible. To address this limitation, the Singapore
International Arbitration Centre (SIAC) made a proposal on cross-institution
cooperation for the consolidation of international arbitral proceedings, which
calls for adoption of a protocol enabling consolidation of two or more arbitrations
initiated under different arbitral institutional rules.51 A similar approach could be
implemented to address consolidation between different MICs.52
To ultimately eliminate parallel proceedings, it would be necessary to create a
single forum to bring entire ISDS claims. If there are multiple appellate mechan-
isms, an effective tool to address this issue would be necessary.
46
See Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty-Sixth
Session (Vienna, 29 October–2 November 2018), A/CN.9/964 (6 Nov. 2018), para. 47, https://undocs.
org/en/A/CN.9/964 (accessed 24 May 2020).
47
See ibid., para. 44.
48
49
See Emmanuel Gaillard, Abuse of Process in International Arbitration, 32(1) ICSID Rev. 17 (2017).
50
See A/CN.9/964, supra n. 46, para. 49.
51
G. Born, the president of the SIAC, initiated a proposal on cross-institution cooperation for the
consolidation of international arbitral proceedings. The proposal is aimed at adopting ‘a protocol
permitting the cross-institution consolidation of arbitrations subject to different institutional arbitration
rules’. See Memorandum Regarding Proposal on Cross-Institution Consolidation Protocol (2017), https://siac.
org.sg/images/stories/press_release/2017/Memorandum%20on%20Cross-Institutional%
20Consolidation%20(with%20%20annexes).pdf (accessed 24 May 2020).
52
For a more detailed discussion on this topic, See Dina Prokić, SIAC Proposal on Cross-Institution
Consolidation Protocol: Can It Be Transplanted into Investment Arbitration?, 36 J. Int’l Arb. 171 (2019).
2.2 THE EUROPEAN UNION’S REFORM PROPOSAL
The EU proposes creation of a single MIC, an international court to adjudicate

ISDS disputes under various IIAs.53 As a starting point, the EU replaced traditional
ISDS dispute resolution mechanisms with a bilateral investment court system (ICS)
in its recent IIAs including CETA, the EU-Vietnam Investment Protection
Agreement (IPA), and the EU-Singapore IPA.54 At present, each IIA envisions
the establishment of a standing appellate tribunal that only would adjudicate cases
under a specific treaty.55 Once the ICS is established, it will substitute each
standing appellate tribunal created under these IIAs.56
These IIAs provide a mechanism where each state appoints a certain number of
arbitrators from the EU, from the other state’s nationality, and from the nationality
of third countries to the roster.57 Individuals from each country’s nationality and one
individual from third countries will become the appellate tribunal to resolve ISDS
disputes.58
They also provide that appellate tribunal members should ‘refrain from acting
as counsel or as party-appointed experts or witnesses in any pending or new
investment protection dispute under this or any other agreement or under domes-
tic laws and regulations’.59 Under the EU-Singapore IPA, this restriction is even
stronger, stated as follows:
The Appeal Tribunal Members shall serve on a full-time basis and the Committee shall fix
their remuneration and related organizational matters. In that event, the Appeal Tribunal
Members shall not be permitted to engage in any occupation, whether gainful or
not, unless exemption is exceptionally granted by the President of the Appeal Tribunal.60
53
European Commission, Factsheet on the Multilateral Investment Court (2017), http://trade.ec.europa.eu/
doclib/docs/2017/september/tradoc_156042.pdf (accessed 10 Jan. 2021).
54
CETA, Art. 8.28; EU-Vietnam IPA, Art. 3.39; EU-Singapore IPA, Art. 3.10.
55
Ibid.
56
CETA, Art. 8.29 (‘The Parties shall pursue with other trading partners the establishment of a
multilateral investment tribunal and appellate mechanism for the resolution of investment disputes.
Upon establishment of such a multilateral mechanism, the CETA Joint Committee shall adopt a
decision providing that investment disputes under this Section will be decided pursuant to the
multilateral mechanism and make appropriate transitional arrangements’); EU-Vietnam IPA, Art.
3.41; EU-Singapore IPA, Art. 3.12. See also Netherlands draft model BIT, Art. 15.
57
CETA, Art. 8.27; EU-Vietnam IPA, Art. 3.38; EU-Singapore IPA, Art. 3.9.
58
For example, Appellate tribunals under the EU-Vietnam IPA and the EU-Singapore IPA would be
constituted of three-member panels selected from a set of six members, comprising two adjudicators
from the EU Member States, two adjudicators from Vietnam / Singapore, and two adjudicators from
third countries. Three panels would be constituted with one member from the EU Member States,
one adjudicator from Vietnam / Singapore, and one adjudicator from a third country.
59
EU-Vietnam IPA, Art. 3.40, para. 1; CETA, Art. 8.30, para. 1.
60
EU-Singapore IPA, Art. 3.10, para. 13 (emphasis added).
ISDS REFORM 493
These strict restrictions on so-called double hatting are problematic as they could
limit practitioners from serving as ISDS arbitrators. The issue of strict prevention of
double hatting will be discussed in detail below.
Additionally, the EU proposes to expand the scope of appeal in these IIAs by
including error in the interpretation/application of law and misapplication of facts
as grounds for appeal.61 These grounds are not available under the New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(New York Convention) nor the current ICSID annulment process. Under the
EU approach, the appellate tribunal could modify or reverse the previous award
upon finding the above grounds.62 Expanding the scope of appeal could lead to
greater consistency and opportunities to correct incorrect decisions. However, it
could also hamper the finality of an award and increase time and cost for the
parties. This issue will be discussed in detail below.
3 ESTABLISHING THE MIC

This section addresses the potential structure of an appellate system. In doing so, it
will examine the advantages and disadvantages of a stand-alone appellate body and
the MIC system. Additionally, it will discuss whether to create a single MIC system
or multiple MICs.
3.1 STAND-ALONE APPELLATE BODY OR MIC SYSTEM?
There are two main potential mechanisms for establishing an appellate system.
First, a stand-alone appellate body exclusively dealing with appeals could be
considered. The stand-alone appellate body could be established (1) under specific
treaties, (2) on an ad hoc basis by the disputing parties, or (3) under an institution
such as ICSID.63 In WG III, Member States preferred a single stand-alone
appellate body under the ICSID framework rather than establishing multiple
stand-alone appellate bodies under different treaties.64 Once a stand-alone appellate
body is created, an ad hoc tribunal will hear the first instance dispute, maintaining
61
EU’s proposal for the scope of appeal are as follows: (1) that the Tribunal has erred in the interpreta-
tion or application of the applicable law; (2) that the Tribunal has manifestly erred in the appreciation
of the facts, including the appreciation of relevant domestic law; or (3) those provided for in Art. 52 of
the ICSID Convention, in so far as they are not covered by subparagraphs (a) and (b). See EU-Vietnam
IPA, Art. 3.54, para. 1; EU-Singapore IPA, Art. 3.19, para. 1.
62
EU-Vietnam IPA, Art. 3.54, para. 3; EU-Singapore IPA, Art. 3.19, para. 3.
63
See Possible Reform of Investor-State Dispute Settlement (ISDS), Appellate and Multilateral Court Mechanisms,
Note by the Secretariat, A/CN.9/WG.III/WP.185 (29 Nov. 2019), https://undocs.org/en/A/CN.9/
WG.III/WP.185 (accessed 11 Jan. 2021).
64
the current ISDS regime. Under this approach, an appellate tribunal system could be
implemented while maintaining most of the current ISDS features.65 An appellate
tribunal could review the first instance award with expanded grounds (broader than
the annulment grounds of the ICSID Convention and national arbitration legisla-
tions) and would have recourse other than an annulment (e.g., remand to the first-
instance tribunal or overrule the first instance tribunal’s finding).
Second, an independent MIC incorporating two-tier adjudication system
could be established to address ISDS claims.66 Under this approach, traditional
ISDS claims submitted to an ad hoc tribunal will be submitted to the first instance
tribunal under the MIC. An appellate tribunal could be established as a second-tier
tribunal under the MIC, which will hear an appeal of the first instance award.
Thus, the MIC system will substitute the current ISDS regime where the parties
submit their claim to an ad hoc tribunal. The ISDS reform could lead to a single
MIC system as proposed by the EU or a multiple MICs system.
There are several issues to consider with regard to which system should be
implemented to establish an appellate mechanism. These issues include (1) chal-
lenge of arbitrators, (2) enforcement issues, and (3) consistency and predictability.
3.1[a] Challenge Process of an Arbitral Tribunal

In respect to the method of appointing arbitrators, both a stand-alone appellate
tribunal and the MIC system could use the same method of nominating arbitrators;
for example, to nominate adjudicators from a roster and select a three-member
panel upon the appeal of a case.
However, there is an issue of who would decide on the challenge of the
arbitrator in the appellate tribunal. In the case of a stand-alone appellate body
system there are various possibilities on this issue. Similar to the current ICSID
challenge process, if one member of the tribunal is challenged, remaining members
of the appellate tribunal could decide the issue.67 However, this mechanism would
not work when the majority of the tribunal is challenged, or remaining members
of the tribunal are equally divided. In this case, there should be a separate authority
to decide on the matter.
65
See ibid., para. 40 (‘The development of a model appellate mechanism would ensure that the appellate
process available in ISDS would be harmonized to the extent that the users would not alter it’).
66
67
ICSID Convention, Art. 58. See ‘Initial Draft on Standing multilateral mechanism: Selection and
appointment of ISDS tribunal members and related matters’ Draft Provision 9 (‘A member may be
removed from office in case of substantial misconduct or failure to perform his or her duties by a
unanimous decision of all members except the member under scrutiny. A member may resign from his
or her position through a letter addressed to the President of the Tribunal. The resignation shall
become effective upon acceptance by the President … ’.).
ISDS REFORM 495
In the case of a stand-alone appellate tribunal, the institutional structure to

handle a challenge may be lacking if a stand-alone appellate tribunal is not
established under the ICSID framework. Lacking an institutional mechanism, the
parties could designate an authority to resolve the challenge. If a stand-alone
appellate tribunal is established under the specific treaty, the treaty could introduce
a separate roster of arbitrators to decide on the challenge.
On the other hand, if a stand-alone appellate tribunal is established under the
ICSID framework, the Chairman of ICSID could decide on the matter as in the
current regime.68 Alternatively, the tribunal could introduce a separate roster of
arbitrators to decide on the challenge. Practically, it could be burdensome for the
Chairman of ICSID to decide on the challenge. The numbers of the challenge of
arbitrators in an appellate tribunal could be significant. Additionally, the Chairman
still would need to decide on the challenge of the first instance tribunal under the
ICSID Convention.
On the other hand, the MIC system could introduce more flexible resolution
on who would decide on the challenge. In the MIC system, the court is comprised
of a two-tier system to handle both the first instance and appeal of the first instance
case. Thus, the MIC will have to consider the challenge of arbitrators in both the
first instance and appellate tribunals. Regarding the challenge of arbitrators in the
first instance tribunal, there are several possibilities. First, if one member of the
tribunal is challenged, the remaining members of the tribunal can decide. When
the majority of the tribunal is challenged, or remaining members of the tribunal are
equally divided, then arbitrators included in the appellate tribunal’s roster could
decide on this matter. Alternatively, for the efficiency of the proceeding, challenges
on any first instance tribunal could be directed to arbitrators included in the
appellate tribunal roster in the first place.
On the other hand, in terms of the challenge of the appellate tribunal, the
MIC as the institution could decide on this matter rather than leaving the decision
to arbitrators. The MIC president could decide on this matter, or the MIC could
designate the board members to decide on this matter. Designating separate
authorities to handle the challenge on the first instance tribunal and the appellate
tribunal could be a practical resolution to balance the workload.
3.1[b] Enforcement of Appellate Awards
In the current ISDS regime, awards rendered by the ISDS tribunal are enforceable
under the New York Convention or the ICSID Convention. When the
UNCITRAL Arbitration Rules or other institutional rules apply to ISDS proceedings,
68
ICSID Convention, Art. 58.
the enforcement of the award would generally be subject to the New York
Convention.69 The ISDS awards under the ICSID proceeding are enforceable
under the ICSID Convention.70 The enforceability of appellate awards remains
uncertain under the New York Convention, and is inconsistent with the current
ICSID enforcement regime. To resolve this uncertainty, Member States could
develop a new enforcement regime upon creating an appellate mechanism, requiring
enforcement of appellate awards in Member States. This would address the enforce-
ability of appellate awards under the current ISDS regime.
3.1[b][i] Enforceability of the Appellate Award Under the New York

Convention
In the context of the enforceability of appellate awards made by an appellate
tribunal under the New York Convention, the initial question to be addressed is
whether the appellate award is in fact an arbitral award under the New York
Convention.71 Article 1 of the New York Convention only applies to ‘the
recognition and enforcement of arbitral awards’.72 However, the New York
Convention does not provide a clear definition on the meaning of ‘arbitral
awards’.73 Ultimately, whether appellate awards would be deemed as arbitral
awards under the New York Convention would depend on the applicable law
to the award, most commonly the law of the seat.74
The enforceability of appellate awards made under a stand-alone appellate
body may face fewer issues under the New York Convention than appellate
awards made under the MIC system.75 In a stand-alone appellate body, the appeal
69
van den Berg, supra n. 15, at 171.
70
71
van den Berg, supra n. 15, at 178–179. See also Possible Reform of Investor-State Dispute Settlement (ISDS),
Appellate Mechanism and Enforcement Issues, Note by the Secretariat, A/CN.9/WG.III/WP.202 (12
Nov. 2020), para. 42, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/
en/acn9_wg.iii_wp.202.pdf (accessed 12 Jan. 2021) (‘The possible application of the enforcement
mechanism under the New York Convention to decisions rendered by an appellate mechanism would
depend on how such a mechanism would be set up, in particular, the extent to which its decisions
could qualify as arbitral awards’).
72
NewYork Convention Art. 1. (‘1. This Convention shall apply to the recognition and enforcement of
arbitral awards made in the territory of a State other than the State where the recognition and
enforcement of such awards are sought, and arising out of differences between persons, whether
physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State
where their recognition and enforcement are sought. 2. The term “arbitral awards” shall include not
only awards made by arbitrators appointed for each case but also those made by permanent arbitral
bodies to which the parties have submitted’.).
73
See Chapter 4: The Obligation to Enforce Awards, in The 1958 New York Convention in Action 114 (Marike
R. P. Paulsson ed. 2016).
74
van den Berg, supra n. 15, at 179.
75
Ibid., at 179–180. See also A/CN.9/WG.III/WP.202, supra n. 71, para. 42.
ISDS REFORM 497
process can be considered as an internal appellate review.76 Commentators noted

that containing an internal appellate review process would not affect the enforce-
ability of an award under the New York Convention.77 Thus, appellate awards
under a stand-alone appellate body would most likely be considered arbitral awards
in the meaning of the New York Convention.
On the other hand, whether appellate awards made under the MIC system
qualify as arbitral awards remains uncertain. Arguably, appellate awards rendered
under the MIC system could be considered arbitral awards made by ‘permanent
arbitral bodies’ under Article 1(2) of the New York Convention.78 However, the
use of ‘permanent arbitral bodies’ does not provide ‘any meaningful definition of
the term’.79 The drafters of the New York Convention suggested including the
phrase ‘to which parties have voluntarily submitted’ referring to permanent arbitral
bodies in Article 1(2).80 The delegates agreed that the test of whether awards were
rendered by permanent arbitral bodies depends on the party’s voluntary
submission.81 Thus, if the party were subjected to bring a claim under arbitration
due to the mandatory law, it would be judicial in nature.82 However, the final text
of the New York Convention does not include this phrase.83
Although the phrase was omitted, the voluntary nature of arbitration remains
an important factor in determining whether the MIC constitutes a permanent
arbitral body.84 Proponents suggest that the MIC system would not lack the
voluntary nature of the arbitration.85 Often proponents focus on the precedent
of the Iran-US Claims Tribunal being qualified as a permanent arbitral body under
76
See A/CN.9/WG.III/WP.202, supra n. 71, para. 42. See also Gabrielle Kaufmann-Kohler & Michele
Potestà, Can the Mauritius Convention Serve as a Model for the Reform of Investor-State Arbitration in
Connection With the Introduction of a Permanent Investment Tribunal or an Appeal Mechanism? – Analysis and
Roadmap (2016) (CIDS first report), para. 199, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=
3455511 (accessed 12 Jan. 2021).
77
Kaufmann-Kohler & Potestà, supra n. 76, para. 199. See also G. Born, International Commercial
Arbitration (3d ed. 2021), §24.08 (‘Where parties agree to internal appellate review, there is no reason
not to give full effect to this mechanism. Indeed, this result is required by both the New York
Convention and modern arbitration legislation’.).
78
See Colin M. Brown, Chapter 13: The EU’s Approach to Multilateral Reform of Investment Dispute
Settlement, in The Future of Investment Treaty Arbitration in the EU: Intra-EU BITs, the Energy Charter
Treaty, and the Multilateral Investment Court 231 (Ana Stanič & Crina Baltag eds 2020); Brian McGarry,
Chapter 20: Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining
Elements, in The Investor-State Dispute Settlement System: Reform, Replace or Status Quo? 459 (Alan M.
Anderson & Ben Beaumont eds 2020). See also Kaufmann-Kohler & Potestà, supra n. 76, para. 154.
79
Born, supra n. 77, §22.02 [B][1]. See also Kaufmann-Kohler & Potestà, supra n. 76, para. 149.
80
See Paulsson, supra n. 73, at 121.
81
Ibid.
82
Ibid.
83
Ibid.
84
Kaufmann-Kohler & Potestà, supra n. 76, para. 152.
85
Ibid.
the New York Convention.86 Thus, proponents focus on voluntary submission of

the claim on deciding whether the MIC could qualify as a permanent arbitral
body.87 The MIC system does not have a compulsory nature, as Member States
would agree on establishing the appellate court and investors must decide whether
to initiate claims against states.
On the other hand, there is a criticism that the MIC system would not qualify as
a permanent arbitral body.88 The main concern is that the MIC system would not
allow the parties to appoint arbitrators.89 It is suggested that it is difficult to consider
the MIC as a permanent arbitral body when the parties lose their ability to appoint
arbitrators.90 On the other hand, other commentators suggest that the ability to
appoint arbitrators is not an essential factor for permanent arbitral bodies.91
Therefore, the appellate award rendered by both a stand-alone appellate body
and the MIC may be enforced under the New York Convention. However, the
MIC system may face more difficulty to justify that the appellate award is enforceable
under the New York Convention. If the MIC system is adopted, the Member States
should consider the method to address this issue. The Member States could release a
multilateral interpretation stating that the MIC qualifies as a permanent arbitral body,
or the treaty or statute creating the MIC could contain such language.
3.1[b][ii] Enforceability of the Appellate Award Under the ICSID Convention

In terms of the ICSID Convention, the appellate award under both a stand-
alone appellate body and the MIC would not be enforceable without modify-
ing the ICSID Convention and Rules. The ICSID award is enforceable under
Article 54 where an enforcing court would not be able to refuse enforcement.92
However, the automatic recognition and enforcement mechanism of Article 54
only applies to the ICSID award.93 The appellate award under both a stand-
alone appellate body and the MIC is inconsistent with the ICSID Convention
and Rules.
For example, Article 53 of the ICSID Convention provides that the award
should ‘not be subject to any appeal or to any other remedy except those provided
86
Ibid., para. 154 (citing Ministry of Defense v. Gould Inc., 887 F. 2d 1357, 1362 (9th Cir. 1989)).
87
Ibid., para. 152.
88
See Alvaro Galindo et al., Chapter 27: The New York Convention’s Concept of Arbitration and the
Enforcement of Multilateral Investment Court Decisions, in 60 Years of the New York Convention: Key
Issues and Future Challenges 463–466 (Katia Fach Gomez & Ana M. Lopez-Rodriguez eds 2019).
89
Ibid., at 463–465.
90
Ibid., at 464.
91
Kaufmann-Kohler & Potestà, supra n. 76, para. 152.
92
ICSID Convention, Art. 54. See also van den Berg, supra n. 15, at 175.
93
See Chapter 6: Recognition, Enforcement and Execution of ICSID Awards, in Guide to ICSID Arbitration 180
(Lucy Ferguson Reed et al. eds 2010).
ISDS REFORM 499
for in the Convention’. The appeal process created under a different treaty would
be inconsistent with Article 53. The ICSID Convention does not provide any
appeal mechanism.94 Accordingly, the creation of the appeal process itself will be
contrary to Article 53. Other inconsistencies also exist, such as the method of the
constitution of appellate tribunals and ad hoc committees under the current ICSID
regime.95
Upon establishing a stand-alone appellate body or the MIC, amendment of
the ICSID Convention would be necessary to make the appellate award enforce-
able. Member States could amend the ICSID Convention pursuant to Article 66.96
However, no amendment proposal has been made by Member States so far.97 The
amendment process has practical difficulties where it essentially requires all con-
tracting states to ratify, accept and approve the amendment.98 In practice, amend-
ment of the ICSID Convention could only occur after all contracting states had
agreed which appellate mechanism should be adopted in the future.
Another method is through an inter se modification of the ICSID Convention
following the procedure under Article 41 of the Vienna Convention on the Law of
Treaties (VCLT).99 Inter se modification only requires agreement among relevant
parties to be bound by the modification whereas amendment under Article 66 of the
ICSID Convention requires all contacting states’ consent.100 For example, the EU-
Vietnam IPA and CETA contain a provision where the final award ‘shall qualify as an
award under Chapter IV, section 6 of the ICSID Convention’.101 Regardless of
whether they choose a stand-alone appellate body system or the MIC system,
contracting states could mutually agree with the enforceability of an award under
the ICSID Convention. However, it should be noted that this binding effect created
through inter se modification would not apply to third countries.102 The most
effective way to resolve enforceability of appellate awards is to adopt a separate treaty
on agreeing on an enforcement regime of appellate awards, ranging cases under both
ICSID and non-ICSID proceedings among states, even if there are various practical
difficulties involved. If a new treaty could be concluded and adopted widely by
94
See Part III: ICSID Arbitration Mechanism, in International Centre for Settlement of Investment Disputes
(ICSID) (4th ed., Yarik Kryvoi ed. 2020), para. 356.
95
ICSID Rules, Art. 52.
96
97
Ibid., para. 50.
98
99
100
Ibid.
101
CETA, Art. 8.41, para. 6; EU-Vietnam IPA, Art. 3.57, para. 8.
102
van den Berg, supra n. 15, at 176; Richard Happ & Sebastian Wuschka, From the Jay Treaty Commissions
towards a Multilateral Investment Court: Addressing the Enforcement Dilemma, 6 Indian J. Arb. L. 113, 123
(2017).
Member States, then, regardless of what appeal mechanism is chosen, enforceability

of appellate awards in the ISDS regime could be secured.
3.1[c] Consistency and Predictability

Finally, the appeal mechanism would have an impact on promoting greater con-
sistency and predictability. A stand-alone appellate body may lack consistency in
applying and interpreting treaty standards.103 The award rendered by a stand-alone
appellate tribunal would most likely not bind other appellate tribunals. Without
proper measures to resolve inconsistency involving the interpretation of the treaty,
inconsistency could still exist in a stand-alone appellate body system. If a stand-
alone appellate body is created under the ICSID regime, ICSID could develop
proper measures to resolve this issue. For instance, it could create a separate panel
to resolve inconsistent interpretations of the treaty. ICSID also could allow treaty
parties to submit a joint statement on treaty interpretation once inconsistent awards
exist.
This could also be true in the case of the MIC system; however, the MIC as
an institution could take various measures to resolve inconsistency among the
appellate panels’ interpretation or the application of the treaty standard. Other
than the measures discussed above, the court could for instance hear the case en
banc to resolve existing inconsistencies.104 Or the court could release a separate
opinion on proper interpretation sua sponte. These measures should be considered
when forming a stand-alone appellate body or the MIC to resolve inconsistency,
given the fact that the parties are not able to appeal an inconsistent award.
3.2 TOWARD A SINGLE MIC SYSTEM
In the previous section, this article addressed the advantages and disadvantages of a
stand-alone appellate body and the MIC system. In this section, this article will
address whether to create a single MIC system or a multiple MICs system if the
MIC system is to be established. The current EU proposal aims to create a single
MIC.105 If multiple MICs are to be established, this could face difficulties in
103
See Possible Reform of Investor-State Dispute Settlement (ISDS) Submission from the Government of Morocco,
A/CN.9/WG.III/WP.195, 3 (11 Feb. 2020), https://undocs.org/en/A/CN.9/WG.III/WP.195
(accessed 22 Jan. 2021).
104
This measure would depend on the number of arbitrators in the appellate panel roster. If there are too
many arbitrators in the roster, a limited numbers of arbitrators (e.g., a nine-member tribunal) could
hear the case.
105
CETA, Art. 8.29; EU-Vietnam IPA, Art. 3.41.
ISDS REFORM 501
regulating parallel proceedings and promoting consistency on the challenge

decision.
In the case of a multiple MICs system, the consolidation of cases would be
similar to the current international arbitration regime, where consolidation
between different institutions or different arbitration rules is not available unless
there is an agreed rule on consolidating parallel proceedings among the different
MICs. Even if this rule is introduced, some MICs may refuse to adopt the rule.
The ultimate solution to eliminate parallel proceedings and increase efficiency on
the ISDS proceeding is to create a single MIC system.
Additionally, a single MIC could promote greater consistency and predictability
related to the decision on challenge to the arbitrator. Once a single MIC obtains
sufficient experience or develops a body of case law on challenges, decision-makers
in the MIC could provide more consistent decisions where the facts and circum-
stances are similar. Along with the Code of Conduct for Adjudicators in ISDS,
consistent decisions would provide predictability, which eventually could contribute
to reducing conflict of interest concerns in the ISDS regime.
One practical consideration related to creating a single MIC is whether the
court could sufficiently handle the workload. In fiscal year 2020, ICSID adminis-
tered 303 ICSID cases.106 Considering non-ICSID proceedings, the total number
of ISDS cases in a single year would be larger. Additionally, once the appeal
mechanism is available, ISDS caseloads could significantly increase. The losing
party may have a second chance to argue its case depending on the scope of appeal.
Similar to other national court systems, a single MIC may have difficulty ensuring
efficiency in handling cases and the capacity to handle the workload. In this regard,
it will be highly important to appoint enough people to the appellate panel to serve
as arbitrators, as well as sufficient support staff.
4 CREATING THE MIC SYSTEM: FURTHER CONSIDERATIONS

In this section, this article will address further considerations with creating the
MIC system. There are two main considerations that need to be addressed on the
creation of the MIC system: (1) expansion of the scope of appeal, and (2) addres-
sing the double hatting issue.
106
2020 ICSID Annual Report, 20, https://icsid.worldbank.org/sites/default/files/publications/annual-
report/en/ICSID_AR20_CRA_Web.pdf (accessed 15 Oct. 2020).
4.1 EXPANSION OF THE SCOPE OF APPEAL
The scope of appeal as a result of the creation of a MIC system could change the
generally accepted rule that the reviewing court would not review the merits of
the arbitral award. The EU proposal to create a single MIC system broadens the
scope of traditional grounds under the ICSID Convention by adding two addi-
tional grounds, which are where the tribunal errs in interpretation or application of
the law or where the tribunal ‘manifestly erred in the appreciation of the facts,
including the appreciation of relevant domestic law’.107 During the WG III
discussion, Ecuador expressed that ‘it would be appropriate for the ISDS regime
to allow also for the merits of cases to be reviewed’.108 The purpose of broadening
the scope of appeal is to pursue greater consistency in arbitral awards.109 If the
MIC lacks power to review the merits of the case, it may not be able to promote
greater consistency.
An appeal is different from the annulment of an award.110 Annulment of an
award does not address the ‘substantive correctness’ of an award.111 Rather it is a
remedy to preserve the legitimacy of an award.112 Accordingly, the scope of
review is narrower than an appeal.113 Annulment of an award is limited to the
number of grounds under the ICSID Convention, which does not include errors
of law/facts as annulment grounds.114 Many national arbitration legislations also do
not include errors of law/facts as annulment grounds.115
Additionally, the legal effect of an annulment is different from an appeal.
Annulment invalidates an award under the ICSID Convention.116 Enforcing
courts may refuse to recognize and enforce an award annulled at the seat of
arbitration under the New York Convention,117 whereas an appeal allows the
award to be rewritten, corrected, or remanded to the first panel.118
However, opening up the scope of the appeal to merits review should be
carefully balanced against the finality of arbitral awards and the efficiency of the
107
EU-Vietnam IPA, Art. 3.54, para. 1; CETA, Art. 8.28.
108
Possible Reform of Investor-State Dispute Settlement (ISDS) Submission from the Government of Ecuador, A/
CN.9/WG.III/WP.175 (17 July 2019), https://undocs.org/en/A/CN.9/WG.III/WP.175 (accessed
26 May 2020).
109
Menaker, supra n. 13, at 609.
110
See Christoph Schreuer, From ICSID Annulment to Appeal Half Way Down the Slippery Slope, 10 L. &
Prac. Int’l Cts. & Trib. 211, 212 (2011). See also van den Berg, supra n. 15, at 174; Kryvoi, supra n. 94,
at 356.
111
Schreuer, supra n. 110, at 212.
112
Ibid.
113
Ibid.
114
ICSID Convention, Art. 52(1).
115
See Born, supra n. 77, §25.03.
116
Schreuer, supra n. 110, at 212.
117
New York Convention, Art. V(1)(e).
118
See A/CN.9/WG.III/WP.202, supra n. 71, para. 24. See also Kryvoi, supra n. 94, at 356.
ISDS REFORM 503
arbitral proceeding. Most national legislation, the New York Convention, and the
ICSID Convention do not allow the reviewing court to conduct merits review.119
The reasons for this include promoting the finality of the arbitral award and the
efficiency of the arbitral proceeding.120
Merits review would hamper the finality of the arbitral award by increasing
uncertainty.121 The two-stage proceeding would necessarily lead to inefficiency
and an increase in cost and time.122 There also are concerns that allowing merits
review would result in the first panel considering ‘themselves as no more than the
first round in a dispute that will almost inevitably be finally resolved by another
tribunal at a later stage. That is unlikely to encourage good arbitral practice’.123
4.2 ADDRESSING THE DOUBLE HATTING ISSUE
Under the current EU proposal, adjudicators on an appellate panel will be nomi-

nated by states.124 As noted above, the EU proposal requires an appellate panel to
refrain from125 or prevent126 engaging in other roles in ISDS such as acting as
counsel or party-appointed experts in other unrelated cases. For example, the
CETA provides that ‘upon appointment, [the members of the appellate panel]
shall refrain from acting as counsel or as party-appointed expert or witness in any
pending or new investment dispute under this or any other international
agreement’.127 This provision effectively prohibits the recurring issue of double
hatting in the current ISDS regime. However, this limitation could prevent
experienced arbitrators and newly appointed arbitrators from acting as arbitrators
in the MIC system.
119
See Paulsson, supra n. 73, at 168–171. See also Kateryna Bondar, Annulment of ICSID and Non-ICSID
Investment Awards: Differences in the Extent of Review, 32 J. Int’l Arb. 621, 636 (2015), (‘The drafters of
the ICSID Convention did not intend ICSID annulment to operate like an appeal, as it would increase
the time and cost to reach the final decision’.).
120
See Paulsson, supra n. 73, at 169 (‘the delegates believed a review on the merits would have opened the
floodgates to an impermissible judicial review and attempted delaying tactics by respondent’). See also
Bondar, supra n. 119, at 624 (‘The drafters of the ICSID Convention did not intend ICSID annulment
to operate like an appeal, as it would increase the time and cost to reach the final decision’).
121
See Menaker, supra n. 13, at 627.
122
Ibid.
123
Vaughan Lowe, Changing Dimensions of International Law, Oxford Legal Studies Research Paper Ser.,
Working Paper No. 4/2007 (2007), SSRN, https://ssrn.com/abstract=970727 (accessed 15 Dec.
2020).
124
See EU-Vietnam IPA; EU-Singapore IPA.
125
EU-Vietnam IPA, Art. 3.40, para. 1; CETA, Art. 8.30, para. 1.
126
EU-Singapore IPA, Art. 3.10, para. 13.
127
CETA, Art. 8.30, para. 1.
Many experienced arbitrators play multiple roles in the current ISDS regime.128
Preventing arbitrators from taking any other role in the ISDS regime to accept a full-
time position to serve on an appellate panel would likely lead to experienced
arbitrators rejecting the appointment.
On the other hand, Article 4 of the Draft Code of Conduct Version Three
contains three options, where Option 2 provides a narrower approach on the
double hatting issue as:
Unless the disputing parties agree otherwise, an Adjudicator in an IID shall not act
concurrently as a legal representative or expert witness in another IID [or other proceed-
ing] involving: (a) the same measures; (b) [substantially] the same legal issues; (c) one of the
same disputing parties or its subsidiary, affiliate, parent entity, State agency, or State-owned
enterprise; or [and] (d) [the same treaty].129
The Draft Code of Conduct noted that ‘an outright ban may exclude a greater
number of persons than necessary to avoid conflicts of interest and would interfere
with the freedom of choice of adjudicators and counsel by states and investors’.130
Similarly, an outright ban on double hatting in the first instance panel would
prevent numbers of experienced arbitrators from serving as arbitrators.131 It could
negatively impact the quality of ISDS proceedings where the parties would lose
their chance to bring their claim to experienced arbitrators.132
Additionally, the restriction on the first instance panel could make it difficult
for younger arbitrators to serve on the panel.133 Unlike experienced arbitrators,
first-time appointed arbitrators could not afford to become a full-time arbitrator.
The Draft Code of Conduct shared this concern:
A ban on double-hatting also constrains new entrants to the field, as few counsel are
financially able to leave their counsel work upon receiving their first adjudicator
128
The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, para. 69 (‘Many of
the persons currently named to the ICSID Panel of Arbitrators by States concurrently act as counsel or
experts in investment cases or concurrently act as counsel or Judges in other international courts and
tribunals’).
129
Initial Draft Code of Conduct and Version 2 only provided limit restrictions on double hatting rather
than an outright ban. However, Version 3 provides three options – Option 1 ‘Full Prohibition’;
Option 2 ‘Modified Prohibition’; and Option 3 ‘Full Disclosure (With Option to Challenge)’.
130
The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, para 68. See also
Code of Conduct Version 3, para 59 (‘The policy rationale for Option 2 as suggested by commentators
is that it achieves the ethical objectives of a prohibition but with fewer adverse consequences on
diversity and party freedom of adjudicator selection”).
131
See Code of Conduct Version 3, para. 59 (‘[Option 2] would exclude fewer qualified Adjudicators’).
132
The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, para. 69. (‘Were
[arbitrators’] participation to be barred by an absolute prohibition on double-hatting, a significant
number of highly expert persons already nominated to the ICSID lists by member States could not be
appointed. This would certainly increase the difficulty of selecting adjudicators who are experienced,
available, and otherwise meet the requirements of the Convention and the expectations of parties’.).
133
See Code of Conduct Version 3, para. 59 (‘[Option 2] is less likely to create barriers to new entrants to
the field’).
ISDS REFORM 505
nomination. Indeed, many arbitrators receive only one ISDS case in their career and
requiring them to abandon their other sources of income to accept a case would be a
barrier to entry.134
Thus, an outright ban on double hatting would reduce the overall pool of
candidates to serve as an arbitrator in the first instance tribunal. In this sense, the
Draft Code suggests ‘to introduce a phased approach so that an adjudicator may
overlap in a small number of cases at the start of their adjudicator career’.135
An outright ban on the first instance panel could negatively impact improving
diversity in the ISDS tribunal.136 It is noted that the current ISDS tribunal lacks
gender and geographical diversity.137 In recent years, the importance of gender and
regional diversity has been recognized.138 Arbitrators who have been appointed for
the first time tend to augment gender and geographical diversity.139
The EU’s approach implementing an outright ban on double hatting provides
a simple solution to resolve potential conflicts of interest related to the double
hatting issue. However, it could unnecessarily exclude many arbitrators from
serving on an ISDS panel. The limited prohibition on double hatting suggested
by the Draft Code of Conduct could provide an efficient mechanism to address the
double hatting issue. Thus, it is necessary to consider whether the outright ban on
double hatting is essential.
134
The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, para. 68. See also
United Kingdom Comment on Draft WP on Selection and Appointment of ISDS tribunal members,
para. 2, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/selection_
of_arbitrators_uk_comments.pdf (accessed 15 Dec. 2020). (‘We believe any reforms should maintain
flexibility to ensure that the rules can evolve over time and that the most qualified candidates are not
made ineligible by strict double hatting requirements, while supporting the need for greater diversity
of arbitrators’.).
135
The Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, para. 68.
136
See Code of Conduct Version 3, para 59 (‘by creating fewer barriers to entry [through Option 2], it
encourages diversity of Adjudicators’). See also Vanina Sucharitkul, ‘ICSID and UNCITRAL Draft
Code of Conduct: Potential Ban on Multiple Roles Could Negatively Impact Gender and Regional
Diversity, as well as Generational Renewal’ Kluwer Arbitration Blog (20 June 2020), http://arbitra
tionblog.kluwerarbitration.com/2020/06/20/icsid-and-uncitral-draft-code-of-conduct-potential-
ban-on-multiple-roles-could-negatively-impact-gender-and-regional-diversity-as-well-as-genera
tional-renewal/ (accessed 20 Jan. 2021).
137
In 2020, out of 211 appointments in ICSID cases, 181 arbitrators were male, and 122 arbitrators were
from Western European countries and North America (US, Canada, Mexico). See 2020 ICSID
Annual Report, at 26–28.
138
For more discussion on this issue, see Andrea K. Bjorklund, Daniel Behn, Susan Franck, Chiara
Giorgetti, Won Kidane, Arnaud de Nanteuil & Emilia Onyema, The Diversity Deficit in International
Investment Arbitration, 21 J. World Invest. & Trade 410 (2020).
139
In 2020, out of 211 appointments in ICSID cases, 15% were appointed for the first time. Forty-two
per cent of first-time appointed arbitrators were from low- or middle-income countries, 19% were
female. See 2020 ICSID Annual Report, at 26.
5 CONCLUSION
Creating an appeal mechanism in the ISDS regime could resolve many criticisms of
the current ISDS regime. It could (1) bring greater consistency and predictability in
awards; (2) improve a state’s right to interpret a treaty; (3) address concerns about
arbitrators’ impartiality and independence; and (4) resolve procedural tactics such as
parallel proceedings.
If an appeal mechanism is created, careful consideration of the structure of an
appeal mechanism is needed. This article has addressed the advantages and dis-
advantages of a stand-alone appellate body and the MIC system in terms of the
enforcement regime, how challenges to arbitrators will be addressed, and how
consistency in awards will be achieved.
If the MIC system is to be adopted, a single MIC system would be more
efficient than a multiple MICs system. When creating the MIC system, serious
consideration is required on several factors such as the scope of appeal and
addressing the double hatting issue.
Establishing the MIC system involves various challenges in substantive and
procedural aspects. It is important to respond to the many reasons raised for ISDS
reform, but it is equally important not to compromise the entire ISDS system in
order to achieve these goals. In the end, the survival and prosperity of the ISDS
system lie in its users. States engaging in discussions on creating the MIC system
should remember that investors will be users of the system. The MIC system
should refrain from compromising investors’ rights too much as well as from
compromising the overall quality of ISDS proceedings.
Enforcement of Arbitral Awards in the New
Insolvency Regime: A Need for Harmonizing
the Hostility
Arshit KAPOOR* & Kartikey Sanjeev BHALOTIA**
Insolvency and Arbitration law are premised on very contradictory legal principles. On one hand,
the insolvency law aims for a centralized approach towards determination and enforcement of
liabilities among parties. On the other hand, arbitration law provides for a mechanism where
contracting parties choose their own forum to resolve disputes in a completely decentralized
manner. This apparent conflict has often led to the raising of several important legal propositions
in cases when these incompatible laws collide. This article analyses the hostility between the
Arbitration and Conciliation Act 1996 and the Insolvency and Bankruptcy Code 2016 in
terms of its effect on the continuation of arbitration proceedings and the consequent enforcement of
arbitral awards against the insolvent party. The paper deals with this legal conundrum under
both domestic and foreign seated arbitration proceedings. This discussion assumes special impor-
tance due to the lack of literature and precedents on the proposition.
Keywords: Arbitration, Insolvency, Enforcement, Award, Moratorium, Seat
1 INTRODUCTION
Gary Born defines arbitration as a process by which parties consensually submit a
dispute to a nongovernmental decision-maker, selected by or for the parties, to
render a binding decision resolving a dispute following neutral, adjudicatory proce-
dures allowing each party to present its case.1 Arbitration has been observed to owe
its origin to party autonomy and a will to choose a means of dispute resolution2 by
binding the parties with its outcome.3 The Arbitration and Conciliation Act 1996
(‘Arbitration Act 1996’) was enacted to consolidate and amend the laws relating to
*
Student pursuing B.B.A.LL.B (Hons.) from the National Law University Odisha, Cuttack (India)
(Email: kartikey.bhalotia2@gmail.com).
**
Student pursuing B.B.A.LL.B (Hons.) from the National Law University Odisha, Cuttack (India)
(Email: 18bba013@nluo.ac.in).
1
Gary Born, International Arbitration: Law and Practice 2 (2d edn, Kluwer Law International 2015).
2
Dell Computer Corp v. Union des consommateurs 2007 SCC 34 (Canadian SC) [51].
3
Methanex Motunui Ltd v. Spellman [2004] 1 NZLR 95 (Auckland HC).
Kapoor, Arshit & Bhalotia, Kartikey Sanjeev. ‘Enforcement of Arbitral Awards in the New Insolvency
Regime: A Need for Harmonizing the Hostility’. Arbitration: The Int’l J. of Arb., Med. & Dispute Mgmt 87,
no. 4 (2021): 507–528.

domestic and international arbitration to the effect of accentuating party autonomy

by reducing court intervention.4 Since 1996 the arbitration laws in India have been
evolving towards making the country a favourable arbitration destination.5
The evolving jurisprudence of arbitration laws in India opened a new chapter
with the enactment of the Insolvency and Bankruptcy Code 2016 (‘the IBC
2016’). The IBC 2016 was designed to consolidate various provincial laws that
governed the bankruptcy process in the country by providing for a statute that
ensured timebound redress of insolvency and bankruptcy matters.6 While ex facie
the two laws (i.e., the Arbitration Act 1996 and the IBC 2016) seem to govern
very different subject matters, their intersection becomes a crucial consideration in
the event where a party to an arbitration agreement undergoes insolvency.
The Indian courts have struggled to provide definitive answers on several
counts of the said intersection.7 The primary reason behind such an unsettled
position of law stems from underlying differences in the policy framework of these
laws.8 While the insolvency laws push towards a centralized approach to settle-
ment, arbitration policy advocates a decentralized approach, that is, minimization
of court intervention guided by the principles of party autonomy.9
One of the questions that arises from the intersection of these polarized laws is
concerned with the effect of the IBC 2016 on the enforcement of an arbitral award
against the party undergoing an insolvency resolution process. In dealing with this
question, one of the main objectives of the IBC 2016 – keeping the corporate debtor
as a going concern – comes in direct conflict with the concept of party autonomy10
which is the basis of any arbitration proceeding. This article, while analysing various
contours of the question, tries to provide solutions that harmonize these statutes in
order to ascribe appropriate importance to each of them.
The paper is divided into four parts. Following this introduction, Part II deals
with the effect of the operation of the moratorium period11 and the ‘clean slate
principle’12 on the enforcement of domestic arbitral awards and argues that these
principles cannot be applied without exceptions to certain disputes permitted to be
4
See The Arbitration and Conciliation Act 1996, Statement of Object and Reasons.
5
Stephen York, India as an Arbitration Destination: The Road Ahead, 21(2) Nat’l L. Sch. India Rev. 77
(2002).
6
See The Insolvency and Bankruptcy Code 2016, Statement of Object and Reasons.
7
See Indus Biotech Pvt Ltd v. Kotak India Venture Fund-I CP (IB) No 3077/2019 (NCLT Mum); K
Kishan v. Vijay Nirman Co Pvt Ltd (2008) 17 SCC 662; Mobilox Innovations Pvt Ltd v. Kirusa Software
Pvt Ltd (2018) SCC 353.
8
Simon Vorburger, International Arbitration and Cross-Border Insolvency: Comparative Perspectives 1 (Kluwer
Law International 2014).
9
Ibid.
10
Christopher Lau, & Christin Horlach, Party Autonomy – the Turning Point, 4 Disp Resol Int’l 121 (2010).
11
The Insolvency and Bankruptcy Code 2016, s. 14.
12
Committee of Creditors of Essar Steel India Ltd v. Satish Kumar Gupta and Ors (‘Essar Steel’) Civil Appeal
No 8766–67 of 2019 (SCI) [66]; Ultra Tech Nathdwara Cement Ltd v. Union of India (‘Ultra Tech
ENFORCEMENT OF ARBITRAL AWARDS 509
continued during the Corporate Insolvency Resolution Process (‘CIRP’). This is

followed by Part III, which analyses the enforceability of a foreign arbitral award
against a party undergoing CIRP under the IBC 2016 and argues that domestic
insolvency proceedings cannot be relied upon to derogate the legitimacy of an
international arbitration agreement and the parties’ right to enforce the arbitral
award originating from the same. Part IV concludes by presenting the views of the
authors on the need for proper harmonization of the Arbitration Act 1996 and IBC
2016 to reinforce the importance of the legal maxim pacta sunt servanda13 and to
propagate business both within and beyond the boundaries of India.
2 EFFECT OF MORATORIUM ON ENFORCEMENT OF DOMESTIC

ARBITRAL AWARDS
In furtherance of its objective of a timebound resolution,14 the IBC 2016 provides
for a ‘calm period’15 during which the corporate debtors and their creditors are
enabled to negotiate without any fear of loss of value to the debtor’s assets.16 This
protection of the debtor’s assets is provided under section 14 of the IBC 2016,
which expressly bars the continuance or institution of any suit or proceeding
‘against the Corporate Debtor’.17 This implies that there cannot be any action
which removes any assets of the Corporate Debtor during the moratorium period.
This brings us to the question of the ambit of applicability of the moratorium
period on domestic arbitration proceedings involving a corporate debtor. This
question has been addressed by the courts in India on several occasions and on
various differing factual circumstances.18 The following sections of this part analyse
the effect of the moratorium under section 14 of the IBC on domestic arbitration
proceedings in two broad scenarios.
Nathdwara Cement’) DB Civil Writ Petition No 9480/2019 (Raj HC) 24; See The Insolvency and
Bankruptcy Code 2016, s. 31(1).
13
Daniela Nicoleta Popescu, The Principle Pacta Sunt Servanda: Doctrine and Practice, 16 Lex ET Scientia
Int’l J 128 (2009).
14
15
16
Bankruptcy Law Reforms Committee, The Report of the Bankruptcy Law Reforms Committee Volume I:
Rationale and Design Nov. 2015 [6.4.1], https://ibbi.gov.in/BLRCReportVol1_04112015.pdf
(accessed 1 July 2020).
17
The Insolvency and Bankruptcy Code 2016, s. 14(1)(a); Alchemist Asset Reconstruction Company Ltd v.
Hotel Gaudavan Pvt Ltd (‘Alchemist’) (2018) 16 SCC 594 [4].
18
See Alchemist, supra n. 17; KS Oils Ltd v. The State Trade Corporation of India Ltd and Anr Company
Appeal (AT) (Insolvency) No 284 of 2017; Vitol SA v. Asian Natural Resources (India) Ltd 2018 SCC
OnLine NCLT 3901.
2.1 ARBITRATION PROCEEDINGS DO NOT INVOLVE INTER SE CLAIMS AND

COUNTERCLAIMS BETWEEN THE PARTIES
This scenario deals with such cases where there are no inter se claims and counter-
claims between the parties, that is, cases involving only a single claimant. It is
important to note that such proceedings may involve the corporate debtor in two
different roles: as the claimant or as the respondent. Section 14(1)(a) IBC 2016
does not explicitly or implicitly bar any proceeding which is not ‘against’ the
corporate debtor.19 Therefore, insofar as a proceeding that involves the corporate
debtor in the role of a claimant is concerned, the applicability of the moratorium
does not extend to barring such proceedings because they are not ‘against’ the
corporate debtor.
Moreover, a bare perusal of the aforementioned provision shows that a
moratorium ex facie bars institution or continuation of any proceeding which is
to the detriment or against the corporate debtor. Therefore, it follows that an
arbitration proceeding instituted against the corporate debtor – that is, involving
the corporate debtor as respondent – cannot be sustained during the continuation
of the moratorium period under the IBC 2016.20 This is also congruent with the
primary rationale behind section 14: providing a standstill period to protect the
assets of the corporate debtor.21
However, it is important to note that such a stay on a domestic arbitration
proceeding against the corporate debtor does not lead to setting the corporate debtor
free from all its obligations to the claimant. The National Company Law Appellate
Tribunal (‘NCLAT’), while dealing with a situation where an arbitration proceeding
instituted against a corporate debtor had been stayed due to the imposition of a
moratorium on all suits and proceedings against the debtor, found it permissible for
the claimant to submit its claims to the resolution professional22 appointed under the
code in order to assess validity23 and place the claimant on a similar footing24 as that
of all other creditors of the corporate debtor.25
19
See Power Grid Corporation of India Ltd v. Jyoti Structures Ltd 2017 (2018) 246 DLT 485 [10].
20
Alchemist, supra n. 17.
21
Bankruptcy Law Reforms Committee, supra n. 16.
22
The Insolvency and Bankruptcy Code 2016, s. 5(27).
23
Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons)
Regulations 2016, Regulation 13.
24
25
KS Oils Ltd v. The State Trade Corporation of India Ltd and Anr Company Appeal (AT) (Insolvency) No
284 of 2017 [14] (NCLAT).
2.2 ARBITRATION PROCEEDINGS INVOLVE INTER SE CLAIMS AND COUNTERCLAIMS

BETWEEN THE PARTIES
In the second scenario, where there are inter se claims and counterclaims between
the parties, the law can pose a greater deal of complexity for the stakeholders. The
NCLAT, in the case of Jharkhand Bijli Vitran Nigam Limited v. IVRCL Ltd and Anr
(‘Jharkhand Bijli Vitran Nigam Ltd’),26 held that section 14 cannot be interpreted to
bar arbitral proceedings that involve claims and counterclaims by the corporate
debtor and the opposing party as the case may be. The tribunal clarified that, if
after hearing the claims and counterclaims of the parties the arbitrator/s give an
award against the corporate debtor, then such award cannot be enforced during the
moratorium period.
While the above laws clarify the effect of the moratorium on the continuation
of arbitration proceedings, there still exist some uncertainties concerning the effect
of the moratorium on the enforcement of any arbitral award. This can be analysed
by taking into consideration two possible scenarios.
2.2[a] Arbitral Award Is Passed During the Continuation of the Moratorium Period
This situation has already been dealt with by the NCLAT in Jharkhand Bijli Vitran
Nigam Ltd27 where it was clarified that, if on hearing the parties on their respective
claims the award which the arbitral tribunal passes is against the corporate debtor,
then the award holder would not be entitled to seek enforcement from the courts
of law.
In such a situation the award holder is virtually forced to submit his claim
under the arbitral award to the resolution professional appointed to carry out the
CIRP.28 Being the first assessor of claims against the corporate debtor under the
IBC 2016,29 the resolution professional then decides on whether the award
holder’s claim is to be admitted or challenged under section 34 of the
Arbitration Act 1996. It is important to note here that, while enforcement of an
arbitral award against the corporate debtor under section 36 of the Arbitration Act
1996 is barred by the application of moratorium under section 14 of the IBC 2016,
the courts have clearly found that section 34 proceedings are not barred during the
26
Company Appeal (AT) (Insolvency) No 285/2018 [3]-[4].
27
Ibid., at 4.
28
See KS Oils Ltd, supra n. 18, at 14; Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations 2016, Regulations 7, 8; The Insolvency and Bankruptcy
Code 2016, s. 18 (b).
29
Regulations 2016, regulations 13, 14.
moratorium period.30 This is primarily because section 14 bars only proceedings

which are in the nature of debt recovery against the corporate debtor.31 section 34
proceedings not being in the nature of ‘debt recovery action’, they cannot be
barred by the application of section 14 of the IBC 2016.32
However, the above position of law holds only when an arbitral award is
passed and/or sought to be enforced during the continued imposition of the
moratorium period. This brings us to the next scenario: enforceability of an arbitral
award against the corporate debtor which is an outcome of arbitration involving
inter se counterclaims between the parties passed and sought to be enforced after
the lifting of the moratorium period.
2.2[b] Arbitral Award Is Passed after the Lifting of the Moratorium Period
It is clear from the preceding section that the courts and the legislature have laid
down the position of law on the enforcement of an arbitral award against a
corporate debtor that is passed and/or sought to be enforced during the continua-
tion of the moratorium period.33 However, the following question remains.
Let us assume a scenario where there exists a contract between a corporate
debtor and another party ‘XYZ Pvt Ltd’, and there arises a dispute between them.
XYZ Pvt Ltd invokes the arbitration clause in their contract and proceedings are
instituted as per the agreement. XYZ Pvt Ltd and the corporate debtor put forth
their claims and counterclaims. During the arbitration proceedings ABC Bank Pvt
Ltd (one of the creditors of the corporate debtor) files a section 7 application under
the IBC 2016 and the application is admitted. Then, after the initiation of the
CIRP, a moratorium is imposed as per section 14 of the IBC 2016. Now, as per
the NCLAT ruling in Jharkhand Bijli Vitran Nigam Ltd,34 the applicability of the
moratorium would not bar the arbitration proceedings between the corporate
debtor and XYZ Pvt Ltd as there exist inter se claims and counterclaims between
the parties, and hence the arbitration proceedings continue irrespective of the
imposition of the moratorium.
Subsequently, the arbitration tribunal passes an award against the corporate
debtor. However, unlike the situation in the preceding scenario, the award is
passed after the successful completion of the CIRP, where the management of the
corporate debtor has been transferred to the successful resolution applicant. The
question which now arises is whether the award holder should be allowed to seek
30
Power Grid Corporation of India Ltd, supra n. 19, at 10.
31
Ibid.
32
Ibid.
33
Jharkhand Bijli Vitran Nigam Ltd, supra n. 26, at 4.
34
Ibid.
enforcement of such an arbitral award against the corporate debtor (now taken
over by the resolution applicant).
Before analysing the above question, it is pertinent to note that, after the
successful completion of the CIRP, the resolution applicant who becomes the new
owner of the corporate debtor obtains immunity from its pre-CIRP dues. Such
immunity is known as the ‘doctrine of clean slate’.35 An ex facie application of this
doctrine to the present scenario leads us to an inference that enforcement of the
arbitral award against the corporate debtor originating from the pre-CIRP stage
may not be allowed. The position of the award holder becomes more problematic
because, unlike the scenario where the award is passed during the pendency of the
CIRP where there exists an option to submit the claim under the award to the
resolution professional,36 there exists no such forum at the post-CIRP stage.
It is, however, important to note that all ‘relevant information’37 about the
corporate debtor is provided to resolution applicants in the information memor-
andum before they submit their bids for taking over the corporate debtor.38 This
puts the resolution applicants in the position of assessing all the prospective
opportunities and risks associated with investing money in the corporate debtor.
It can reasonably be inferred that pending arbitration proceedings against the
corporate debtor which have been held not to be barred by section 14 would
also fall within the scope of all ‘relevant information’ about the corporate debtor.39
It would therefore not be out of place to state that pending arbitrations (legally
permitted to continue during the CIRP) and the expectations of such arbitrations
culminating in an award against the corporate debtor would also be among the
risks that every resolution applicant would be expected to assess. It is argued that
applying the doctrine of a clean slate to the enforcement of arbitral awards that
originate from a pre-CIRP dispute but where there existed inter se claims and
counterclaims between the parties would substantially be prejudicial to an award
holder, and cause a severe blow to India’s aim of becoming an arbitration-friendly
jurisdiction. Therefore, the courts should be careful in dealing with such enforce-
ments as and when they are faced to adjudicate this issue.
35
Essar Steel, supra n. 12, at 66; Ultra Tech Nathdwara Cement Ltd v. Union of India DB Civil Writ Petition
No 9480/2019 (Raj HC) 24; See The Insolvency and Bankruptcy Code 2016, s. 31(1).
36
KS Oils Ltd, supra n. 18, at 14; Insolvency and Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations 2016, Regulations 7, 8; The Insolvency and Bankruptcy
Code 2016, s. 18(b).
37
38
39
Ibid., s. 29 (explanation).
3 EFFECT OF DOMESTIC INSOLVENCY PROCEEDINGS ON

FOREIGN SEATED ARBITRATIONS
It has already been observed that the insolvency regulations of a country are framed
with the objective of achieving national economic growth by providing for a
mechanism that aims at keeping corporate debtors (business entities) as going
concerns.40 This objective is achieved by providing the corporate debtor with a
buffer period to negotiate with all its creditors and settle their claims and get back
on track.41
It has also been observed that insolvency regulations provide for a centralized
and formalistic process of adjudication under the aegis of statutory bodies governed
by statutory rules.42 In sharp contrast to insolvency, arbitration thrives on auton-
omy in providing for parties a forum (arbitral tribunal) for resolving disputes, laws
and rules by which they wish their disputes to be governed, seat and venue for
proceedings, and so on.43 Unlike domestic insolvency laws, international arbitra-
tion laws aim at achieving significant international economic objectives and sus-
taining international relations. International arbitrations are highly decentralized in
their approach with minimal court intervention.44 The contradictory aims and
objectives of these two laws call for a clear mechanism to effectively harmonize
them for the greater economic benefit.
After perusing the conflicts in the underlying fundamental principles of these
laws, it is important to delve into some exact instances of statutory conflicts that
arise in seeking enforcement of a foreign arbitral award against a corporate debtor
undergoing (or having undergone) insolvency under domestic law (here, the IBC
2016). To better appreciate the proposition, let us examine a hypothetical scenario.
An arbitration agreement exists between the corporate debtor (a company
registered in India) and ‘XYZ Pvt Ltd’ (a foreign company) which provides for a
foreign seat of arbitration. A dispute arises between the parties and the arbitration
proceedings are initiated as per the agreement. Meanwhile, ‘ABC Bank Pvt Ltd’, a
creditor of the corporate debtor, initiates a CIRP for the corporate debtor under
the IBC 2016. A moratorium is accordingly imposed under section 14 of the IBC
2016. The international arbitration proceedings continue irrespective of the impo-
sition of the moratorium.
40
Swiss Ribbons v. Union of India (‘Swiss Ribbons’) (2019) 4 SCC 17 [27].
41
Bankruptcy Law Reforms, supra n. 16.
42
See Societe Nationale Algerienne v. Distrigas Corp (‘Societe Nationale Algerienne’) 80 B R 606 (D Mass
1987) 610 (US District court).
43
Samantha Jayne Lord, When Two Polar Extremes Collide: An Exploration Into the Effects of Insolvency on
International Arbitration, 15 Int’l Trade & Bus L Rev 316, 319 (2012).
44
Societe Nationale Algerienne, supra n. 42.
Two major questions arise under the above scenario: first, whether the
imposition of a moratorium under the IBC 2016 puts an automatic stay on the
foreign seated arbitration proceeding, and hence any award resulting from such
proceeding is liable to be set aside; and second, assuming that the moratorium does
not apply and an arbitral award is passed against the corporate debtor, whether the
award holder has a right to seek enforcement of the foreign award under Part II of
the Arbitration and Conciliation Act 1996. The above questions are premised on a
broader consideration: do domestic insolvency proceedings and the principles that
govern them (for instance, ‘moratorium’ and the ‘clean slate principle’) annul the
legitimacy of contractual sanctity between independent parties? Does the domestic
statutory framework extinguish the right of a foreign entity to seek enforcement of
a foreign arbitral award? The following sections deal with these questions in detail.
3.1 EFFECT OF MORATORIUM UNDER THE IBC 2016 ON THE CONTINUATION OF

INTERNATIONAL ARBITRATION PROCEEDINGS
Section 1(2) of the IBC 2016 provides for the extent of applicability of the statute
to the ‘whole of India’. A bare perusal clearly lays down the territoriality of the
IBC 2016 and hence eradicates any possibility of its extraterritorial applicability.
Therefore, a moratorium under section 14 which leads to an automatic stay on
institution or continuation of all suits and proceedings against the corporate debtor
would not affect any suit or proceeding against a corporate debtor instituted or
continuing outside the territorial limits of India. It can, therefore, be reasonably
argued that an arbitral tribunal presiding over an international arbitration (seated
outside India) where one of the parties undergoes insolvency under the IBC 2016
would not be bound to stay the proceedings by the imposition of a moratorium on
suits and proceedings against the insolvent party.
Almost all domestic insolvency laws around the world provide for such terri-
torial applicability. For instance, section 240 of the German Code of Civil Procedure
provides for an automatic suspension of all civil proceedings that have bearing on the
estate of the debtor.45 The provision has been held to not be applicable on
proceedings beyond the territorial limits of Germany, including international arbi-
tration seated outside the country.46 Similarly, Article 207 of the Swiss bankruptcy
45
Code of Civil Procedure (Zivilprozessordnung) (FRG), s. 240 <https://www.gesetze-im-internet.de/eng
lisch_zpo/englisch_zpo.html (accessed 1 July 2020).
46
See BGH III ZB 88/07 (Bundesgerichtshof 2009); Vorburger (n. 9) 184.
law, which provides for an automatic stay on all civil proceedings in both liquidation
and restructuring cases,47 has been held to apply only to domestic proceedings.48
On somewhat similar lines, section 362 of the US Bankruptcy Code provides
for an automatic stay on legal actions involving the debtor and his estate located
within the territorial limits of the United States.49 The automatic stay has been
held to not apply to arbitrations seated outside the country except in cases where
US courts have in personam jurisdiction over the parties or where foreign arbitration
proceedings may significantly affect the debtor’s estate within the territory of the
United States.50
From the perusal of the above instances, it can be observed that insolvency
laws in a catena of jurisdictions around the world have a tendency to restrict their
application to territorial boundaries, and thus do not affect international proceed-
ings, including international arbitrations seated outside the country’s territorial
limits. This usually allows a foreign seated arbitral tribunal to completely disregard
domestic insolvency proceedings against one of the parties to the arbitration.51
This can be substantiated by referencing some precedents.
A tribunal seated in Tunis, involving a Cameroonian claimant and a French
defendant, disregarded domestic insolvency proceedings against the defendant in its
home nation.52 The tribunal found itself not to be bound by any national substantive
or procedural law.53 Taking a similar approach, an arbitral tribunal seated in Tokyo
did not find itself obligated to put a stay on arbitration proceedings on account of the
insolvency of a Korean party.54 The tribunal found that the insolvency laws of Korea
had a territorial extent to its applicability and therefore did not affect proceedings
situated outside Korea.55
It can therefore be argued that, regarding the IBC 2016 with a territorial
extent to its applicability like the jurisdictions cite above, the moratorium imposed
under section 14 would not lead to a stay of international arbitration proceedings
seated outside India.
47
Federal Law on Debt Collection and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs) (CH),
Art. 207, https://www.admin.ch/opc/de/classified-compilation/18890002/index.html (accessed 1
July 2020).
48
See 2C_303/2010 (Schweizerisches Bundesgericht 2011).
49
United States Bankruptcy Code 11 USC, s. 362.
50
Fotochrome Inc v. Copal Co 517 F 2d 512 (2d Cir USCA 1975).
51
See Gary Born, International Commercial Arbitration 1003, 1006 (2d edn, Kluwer Law International
2014).
52
ICC Award No 5996 (1991).
53
Ibid.
54
ICC Award No 12993 (2002), ICC IC Arb Bull 1/2009.
55
Ibid.
3.2 ENFORCEMENT OF A FOREIGN ARBITRAL AWARD AGAINST AN INSOLVENT PARTY
Answering the question of whether a moratorium under the IBC 2016 imposes an
automatic ban on international arbitration proceedings seated outside India in the
negative, it now becomes important to address the subsequent question of whether
an award that comes as a consequence of continuing the said arbitration proceed-
ings can be enforced against the corporate debtor under the Arbitration Act 1996.
The answer to this important question may differ in two broadly conceived
scenarios: first, if the arbitral award against the corporate debtor is passed and
sought to be enforced during the continuation of the moratorium period; and
second, if it is passed and sought to be enforced after the lifting of the moratorium.
The following subsections analyse the question of enforceability of a foreign
arbitral award against the corporate debtor under these two scenarios.
3.2[a] Arbitral Award Is Passed and Sought to Be Enforced During the Continuation of the
Moratorium Period
The question of enforceability of a foreign arbitral award against a corporate debtor

can arise in a situation where the award is passed and sought to be enforced during
the continuation of the moratorium period, that is, where the CIRP of the
insolvent party is not completed. Under such circumstances, can the award holder
be allowed to seek enforcement of such an award by instituting an independent
enforcement proceeding under the Arbitration Act 1996? In order to answer this
question, and noting the absence of any judicial pronouncement on this point, the
underlying principles of the Indian insolvency law need to be taken into
consideration.
The IBC 2016 strives to protect the interests of creditors by ensuring a
timebound completion of the CIRP.56 To achieve this objective, the code
provides for a moratorium period which bars any suit or proceeding against the
insolvent debtor during the pendency of CIRP.57 The moratorium further acts in
the interest of the creditors by preventing any additional loss to the assets of the
corporate debtor.58 A bare perusal of the above scheme of the IBC 2016 makes it
clear that any suit or proceeding against the corporate debtor would be barred till
the completion of the CIRP.59 Therefore, by necessary implication, an application
under section 47 of the Arbitration Act 1996 to seek enforcement of a foreign
56
57
58
Swiss Ribbons, supra n. 40, at 28.
59
The Insolvency and Bankruptcy Code 2016, s. 31(3)(a).
arbitral award falling under the category of a ‘proceeding’60 against the corporate
debtor would also be barred by the application of section 14 of the IBC 2016.61
However, it is important to note that a bar on filing a suit or initiating any
proceeding against the corporate debtor does not amount to discharging the
corporate debtor of all its liabilities. It merely changes the legal principles and
fora for seeking redress of claims. The IBC 2016 provides for a mechanism
wherein the creditors of the corporate debtor can refer their claims to an interim
resolution professional62 who is responsible for collating all the claims,63 verifying
them,64 and determining their amount based on the available evidence.65 Our
discussion needs to delve into the constituents of a ‘claim’ under the IBC 2016.
The IBC 2016 defines a ‘claim’ as follows:
“claim” means—(a) a right to payment, whether or not such right is reduced to judgment,
fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for
breach of contract under any law for the time being in force, if such breach gives rise to a
right to payment, whether or not such right is reduced to judgment, fixed, matured,
unmatured, disputed, undisputed, secured or unsecured.66
The above definition of a ‘claim’ is of widest import.67 It defines a claim to be any
‘right to payment’. A claim need not necessarily be a documented liquidated fixed
sum of money,68 like a pending loan to a banking company or a pending bill to be
paid for some operational purchases. It also need not be in the form of a judgment
or a court decree. Therefore, it can be argued that a foreign arbitral award that has
not undergone an enforcement proceeding under Sections 47–49 of the
Arbitration Act 1996 can also be encompassed under the definition of a claim as
defined by the IBC 2016. Hence, although a foreign arbitral award holder may not
be allowed to seek payment of the award from the insolvent party by filing a
separate enforcement proceeding during the pendency of the CIRP, the award
holder still has the option of submitting the arbitral award claim to a resolution
professional as a proof of claim and consequently participates in the CIRP of the
corporate debtor.
60
Fuerst Day Lawson Ltd v. Jindal Export (2001) 6 SCC 356 [31].
61
Compare Vitol SA v. Asian Natural Resources (India) Ltd and Ors [2018] 145 SCL 30; Alchemist, supra n. 17.
62
KS Oils, supra n. 18, at 14; Insolvency and Bankruptcy Board of India (Insolvency Resolution Process
for Corporate Persons) Regulations 2016, Regulations 7, 8.
63
The Insolvency and Bankruptcy Code 2016, ss 18(b), 25(e).
64
65
Ibid., Regulation 14.
66
The Insolvency and Bankruptcy Code 2016, s. 3(6).
67
Export Import Bank of India and Ors v. Resolution Professional JEKPL Private Ltd Company Appeal (AT)
(Insolvency) No 304 of 2017 [42]-[51].
68
Andhra Bank v. FM Hammerle Textiles Ltd Company Appeal (AT) (Insolvency) No 61 of 2018 [9].
The above treatment of a foreign arbitral award can also be traced in several
other jurisdictions around the world. For instance, section 501 of the US
Bankruptcy Code requires the creditors of an entity undergoing insolvency to
submit the claims to the trustee.69 The US Court of Appeal has held that section
501 also includes filing of claims under an international arbitral award.70 The UK
Insolvency Act also bars individual enforcement proceedings against a corporate
debtor, and therefore a foreign award holder against the party undergoing insol-
vency needs to file the arbitral award as a proof of claim under the Insolvency
Act.71 In Germany, Sections 87 and 89(1) of the German Insolvency Statute
requires the creditors of an insolvent entity to file their claims under the insolvency
law regime.72
A reference to the above instances of insolvency laws of various jurisdictions
establishes a general consensus on the issue. In the absence of any judicial pronounce-
ment in India on enforcement of a foreign arbitral award during the pendency of a
CIRP, the interpretation of the general principles and other provisions of the IBC
2016 as laid out by the authors becomes relevant to answer the question. This
interpretation, reading along with the international consensus, leads one to the
conclusion that the courts in India are highly likely to deny the institution of an
enforcement proceeding under section 47 of the Arbitration Act 1996, and direct the
award holder to file its claim with the resolution professional and thus participate in
the CIRP of the debtor.
3.2[b] Arbitral Award Is Passed and Sought to Be Enforced After the Lifting of the Moratorium
Period
The preceding section dealt with the enforcement of international arbitral awards
during the continued imposition of the moratorium, that is, the period where the
corporate debtor is undergoing a CIRP. This section deals with a scenario where
the arbitral award is delivered and consequently sought to be enforced after the
completion of the CIRP, where the ownership of the corporate debtor has been
vested with the successful resolution applicant. The question of enforceability of a
foreign arbitral award after completion of the CIRP may be faced with two major
objections: first, on the basis of statutory impediments posed by the IBC 2016
against enforcement of pre-CIRP claims after the completion of the CIRP; and
second, on the grounds of violation of the public policy of India under section 48
of the Arbitration Act 1996.
69
United States Bankruptcy Code 11 USC, s. 501.
70
See Fotochrome Inc v. Copal Co Ltd 517 F 2d 512 (2d Cir USCA 1975) 519.
71
The Insolvency Act 1986 (UK), sch B1 para. 43(6); The Insolvency Act 1986 (UK), s. 130(2).
72
1994 The Insolvency Statute (Insolvenzordnung) (FRG), ss 87, 89(1).
To deal with the first objection it is important to note that during the period
in which the CIRP of the corporate debtor is still pending, section 14 of the IBC
2016 imposes a blanket ban on proceedings against the corporate debtor, and
hence an arbitral award holder (domestic or international) would have to take
the route of the IBC 2016 to seek enforcement.73 The only exception to this
occurs where there is some interest of the corporate debtor vested in the domestic
arbitration proceedings.74 The situation is ex facie similar at the post-CIRP stage by
the operation of the ‘fresh/clean slate principle’75 interpreted within the meaning
of section 31(1) of the IBC 2016. While the moratorium period acts as a bar on
proceedings against the corporate debtor during the pendency of the CIRP, the
clean slate principle bars proceedings relating to pre-CIRP claims against the
corporate debtor at the post-CIRP stage.
The principle of clean slate assumes special importance in the international
context because, unlike domestic arbitrations, international arbitration proceedings
continue irrespective of the vested interests of the corporate debtor. In other
words, while in the domestic context proceedings are permitted to continue
only where there exists a claim or a counterclaim from the corporate debtor, in
the context of a foreign seated arbitration (where a moratorium has no applicability
whatsoever) the proceeding which is purely against the corporate debtor may
continue. This leaves the resolution applicant with the defence of the ‘fresh/
clean slate’ principle to declare immunity from the enforcement of an international
arbitral award.
The Supreme Court of India in Essar Steel76 while laying down the principle
of fresh/clean slate held as follows:
Section 31(1) of the Code makes it clear that once a resolution plan is approved by the
Committee of Creditors it shall be binding on all stakeholders, including guarantors. This
is for the reason that this provision ensures that the successful resolution Applicant starts
running the business of the corporate debtor on a fresh slate as it were.77
A successful resolution Applicant cannot suddenly be faced with “undecided” claims
after the resolution plan submitted by him has been accepted as this would amount to a
hydra head popping up which would throw into uncertainty amounts payable by a
prospective resolution Applicant who successfully take over the business of the corporate
debtor. All claims must be submitted to and decided by the resolution professional so that a
prospective resolution Applicant knows exactly what has to be paid in order that it may
then take over and run the business of the corporate debtor.78
73
KS Oils, supra n. 18, at 14.
74
The Insolvency and Bankruptcy Code 2016, s. 14(1)(a); Jharkhand Bijli Vitran Nigam Ltd, supra n. 26.
75
Essar Steel, supra n. 12; Ultra Tech Nathdwara Cement Ltd, supra n. 12.
76
Essar Steel, supra n. 12.
77
Ibid (emphasis added).
78
Ibid., at 67.
A perusal of the above extract from the Supreme Court’s ruling lays down the
underlying intent of the clean/fresh slate principle. The court, in relying on section
31(1) of the IBC 2016, holds that once a resolution plan has been accepted by the
Committee of Creditors (‘CoC’) the resolution applicant is handed over the
ownership and management of the corporate debtor with immunity from the
pre-CIRP claims of the corporate debtor. This is to prevent uncertainties in the
form of ‘undecided’ claims popping up as an unpleasant surprise for the new
management. Therefore, the principle does provide for the immunity of the
resolution applicant from pre-CIRP claims, but the claim under consideration
should be such that can be termed to have ‘popped up like a hydra head’. In other
words, the clean slate principle intends to recognize the immunity of the resolution
applicant against pre-CIRP claims which have the tendency of creating uncertain-
ties in the business operations of the corporate debtor.
It becomes important to note that a successful resolution applicant invests money
in the insolvent corporate debtor after acquiring full knowledge of claims made
against the corporate debtor.79 All relevant information80 about disputed, undisputed,
fixed, legal, matured, unmatured, equitable, secured, or unsecured contingent claims
are required to be mentioned by a resolution professional in the information
memorandum,81 which is perused by all resolution applicants before filing their
respective resolution plans.82
It can therefore be implied that a resolution professional would also be required
to provide all relevant information about any pending international arbitration
proceeding. Hence, it is argued that a resolution applicant having knowledge of a
pending international arbitration proceeding can apprehend a contingent claim
arising in the form of an arbitration award. Therefore, such pre-existing knowledge
of a contingent claim arising in the form a foreign arbitral award does away with the
‘suddenness’ of such a claim, and hence precludes the applicability of the clean/fresh
slate principle. This non-applicability of the clean slate principle leads one to the
conclusion the there exists no bar under the IBC 2016 against the enforcement of a
foreign arbitral award (arising out of an international arbitration proceeding con-
tinuing during the pendency of the CIRP of an insolvent party) after the completion
of the CIRP.
To deal with the second objection against enforcement of a foreign award
after the completion of the CIRP it is important to refer to the public policy
79
State Bank of India v. Metalyst Forgings Ltd CP 1555 (IB)/MB/2017 (NCLT Mum) [69].
80
The Insolvency and Bankruptcy Code 2016, s. 29 (explanation).
81
Ibid., s. 5(10).
82
Regulations 2016, Regulation 36B (1).
exception to enforcement of a foreign arbitral award under section 48(2) of the

Arbitration Act 1996:
48. Conditions for enforcement of foreign awards. —
(2) Enforcement of an arbitral award may also be refused if the Court finds that—
(b) the enforcement of the award would be contrary to the public policy of India.
[Explanation 1. — For the avoidance of any doubt, it is clarified that an award is in
conflict with the public policy of India, only if, —
(i) the making of the award was induced or affected by fraud or corruption or was in
violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
The public policy exception to enforcement under Part II of the Arbitration Act
1996 explains that an international award can be denied enforceability on the grounds
of its conflict with the ‘public policy of India’ if it satisfies any of the three constituents
of the term: first, the award was induced or affected by fraud, misrepresentation,83
breach of confidentiality of a conciliation proceeding,84 or production of evidence
related to a conciliation proceeding85; second, the award is not consistent with the
‘fundamental policy of Indian law’86; or third, the award under consideration goes
against and disrupts the most basic notions of morality and justice.87 While the first
element depends completely on factual considerations of each and every individual
case and is quite objective in nature, the second and the third elements need special
consideration because of their subjectivity.
The consideration of whether the enforcement of a foreign award goes against
the ‘fundamental policy of Indian law’ becomes important for our discussion
because the courts in determining the enforceability of a foreign award after the
completion of the CIRP would have to strike a balance between two factors: the
interests of a successful resolution applicant who has invested in the corporate
debtor with an objective of reviving and keep the corporate debtor as a going
concern, and the right of a foreign award holder to seek enforcement against a
domestic party and consequently giving effect to the sanctity of a contract. The
Indian courts have yet to decide such a question. However, when they are faced
with the question the observation made by the Delhi High Court in Cruz City 1
Mauritius Holdings v. Unitech Limited (‘Cruz City’)88 would be of assistance:
83
The Arbitration and Conciliation Act 1996, s. 48(2) (explanation).
84
Ibid., s. 75.
85
Ibid., s. 81.
86
Renusagar v. General Electric Co 1994 Supp (1) SCC 644 [66].
87
Ibid.
88
(2017) 239 DLT 649.
Even where public policy considerations are to be weighed, it is not difficult to visualise a
situation where both permitting as well as declining enforcement would fall foul of the
public policy. Thus, even in cases where it is found that the enforcement of the award may
not conform to public policy, the courts may evaluate and strike a balance whether it
would be more offensive to public policy to refuse enforcement of the foreign award -
considering that the parties ought to be held bound by the decision of the forum chosen by
them and there is finality to the litigation - or to enforce the same; whether declining to
enforce a foreign award would be more debilitating to the cause of justice, than to enforce
it. In such cases, the court would be compelled to evaluate the nature, extent and other
nuances of the public policy involved and adopt a course which is less pernicious.89
A bare perusal of the above would show that an ex facie nonconformity of an
arbitral award with the public policy of India does not suffice to deny enforcement
of a foreign award, given that the enforcement of such awards also forms an
essential part of India’s international public policy. The courts would, therefore,
have to weigh the degree to which the enforcement would lead to offending the
public policy of India against the degree to which it would be offensive in the
event the award is not recognized. The public policy exception against the
enforcement in India is likely to be raised under the second constituent of the
exception, that is, ‘fundamental policy of Indian law’. It has already been argued
that the IBC 2016 per se does not impose any bar against enforcement of a foreign
award after the completion of the CIRP, where the dispute was known to the
resolution applicant before the filing of the resolution plan. However, assuming
that the enforcement of such an award was to act in contravention of a provision
under the IBC 2016, it would still not be a ground that satisfies violation of the
fundamental policy of Indian law.
The Supreme Court, in elaborating the meaning and ambit of what embodies
the fundamental policy of Indian law for the purposes of section 48 of the
Arbitration Act, unambiguously held that a mere contravention of a provision of
law is insufficient to invoke the defence of public policy.90 The court has held that
contravention of any statutory provision is not synonymous with contravention of
the fundamental policy of Indian law.91 The Delhi High Court held that ‘the
expression “fundamental policy” connotes the basic and substratal rationale, values
and principles which form the bedrock of laws in our country’,92 and therefore,
the enforcement of a foreign award cannot be resisted merely due to its non-
compliance with a statutory provision.93 It becomes important to quote the Delhi
89
Ibid.
90
Vijay Karia v. Prysmian Cavi E Sistemi SRL (‘Vijay Karia’) 2020 SCC OnLine SC 177 [90]-[91].
91
Ibid.
92
Cruz City, supra n. 88, at 97.
93
Vijay Karia, supra n. 90, at 91.
High Court’s decision in Cruz City on which the Supreme Court placed heavy
reliance in coming to its decision in Vijay Karia:
It is necessary to bear in mind that a foreign award may be based on foreign law, which
may be at variance with a corresponding Indian statute. And, if the expression “funda-
mental policy of Indian law” is considered as a reference to a provision of the Indian
statue … the basic purpose of the New York Convention to enforce foreign awards would
stand frustrated. One of the principal objectives of the New York Convention is to ensure
enforcement of awards notwithstanding that the awards are not rendered in conformity to
the national laws. Thus, the objections to enforcement on the ground of public policy
must be such that offend the core values of a member State’s national policy and which it
cannot be expected to compromise. The expression “fundamental policy of law” must be
interpreted in that perspective and must mean only the fundamental and substratal
legislative policy and not a provision of any enactment.94
Therefore, it is argued that the immunity to a successful resolution applicant against
the enforcement of a foreign arbitral award relating to a pre-CIRP dispute
between the award holder and the corporate debtor, but within the contemplation
of the applicant before placing the bid in his resolution plan, may not constitute a
part of ‘fundamental policy of Indian law’. Even if one was to positively interpret
the provisions of the IBC 2016, and enforcement of such arbitral awards are found
to be in violation of a provision of the statute, this still is a mere statutory non-
compliance which does not constitute a contravention of the ‘fundamental policy
of Indian law’ as interpreted by the Delhi High Court and further rightly affirmed
by the Supreme Court of India.
As far as the third element of public policy is concerned, the Supreme Court
has dealt with the ambit of the expressions ‘morality’ and ‘justice’ as used under
section 48 of the Arbitration Act 1996 in its judgement in Associate Builders v. Delhi
Development Authority.95 The court in laying down the meaning of the expression
‘morality’ under the Arbitration Act 1996 relied on section 23 of the Indian
Contract Act 1872 and observed that the ambit of morality has been usually
confined to sexual morality.96 The court held that for an arbitral award to be
resisted on the grounds of morality the award should be against the prevailing
mores of the day, when not illegal.97
94
Cruz City, supra n. 88, at 98.
95
(2015) 3 SCC 49.
96
Ibid., at 37.
97
Ibid., at 39.
Moreover, to explain the expression ‘justice’ in the context of exception to

enforcement of a foreign arbitral award under section 48 of the Arbitration Act
1996, the court held that an arbitral award can be held to be unjust when it shocks
the conscience of the court.98 It laid down the following illustration to clarify what
constitutes ‘shocking the conscience of the court’: ‘A claimant is content with
restricting his claim, let us say to Rs 30 lakhs in a statement of claim before the
arbitrator and at no point does he seek to claim anything more. The arbitral
award ultimately awards him Rs 45 lakhs without any acceptable reason or
justification’.99 The Supreme Court held that in the above scenario the award
can be held to have shocked the conscience of the court and hence can be held to
be unjust for the purpose of the ‘public policy of India’ under section 48 of the
Arbitration Act 1996.100
A perusal of the above shows that considerations under the ‘morality’ and
‘justice’ exception to the enforcement of arbitral award have some underlying
subjectivity to be determined by the courts of law. The ultimate answer to
whether the enforcement of a foreign arbitral award after the CIRP can be resisted
on the grounds that it offends the most basic notions of morality or justice would
strictly be a factual consideration. Therefore, per se it does not act as a bar against
enforcement of such an award in the context of the hostility between the insol-
vency and arbitration laws of India.
4 CONCLUSION
The effective functioning of insolvency and arbitration laws are crucial determi-
nants of the ease of doing business in the economic ecosystem of a country. As
observed, these two laws are based on polar opposite principles, yet tend to cross
paths due to an underlying common aim of determining and enforcing obligations
and liabilities of parties in a commercial relationship. The intersection between
these laws needs to be harmoniously construed to prevent one from overshadow-
ing the other. One of the crucial questions concerning their intersection has been
dealt with in this article.
In conclusion, the findings of this article can be summarized as follows:
98
Ibid., at 36.
99
Ibid.
100
Ibid.
Table 1
Scenarios Applicability Enforcement of

of Moratorium Award Under
the Arbitration
Act 1996
Domestic Does not Proceedings Does not Can be

Arbitra- involve in favour of apply enforced
tion inter se claims corporate
debtor
Proceedings Applies Cannot be
against enforced
corporate (can be sub-
debtor mitted to
resolution
professional
as proof of
claim)
Involves Award Award in Does not Can be
inter se claims passed and favour of the apply enforced
sought to be corporate
enforced debtor
during the Award Does not Cannot be
moratorium against the apply enforced
debtor mitted to
resolution
professional
as proof of
claim)
Award Does not Can be
passed and apply enforced
sought to be
enforced
after the
moratorium
Foreign Award Award in Does not Can be
Seated passed and favour of the apply enforced
Arbitra- sought to be corporate
tion enforced debtor
Scenarios Applicability Enforcement of

of Moratorium Award Under
the Arbitration
Act 1996
during the Award Does not Cannot be
moratorium against the apply enforced
debtor mitted to
resolution
professional
as proof of
claim)
Award Does not Can be
passed and apply enforced
sought to be
enforced
after the
moratorium
A perusal of the above discussions shows that a resolution applicant who has
successfully acquired the insolvent corporate debtor may be bound by the arbitral
awards passed against the corporate debtor in some circumstances. This, therefore,
might affect the efficient revival of the corporate debtor by creating ambiguities in
the process of distribution of proceeds from the resolution plan. This ambiguity
can effectively be dealt with by creating a ‘corpus’ in the resolution plan which
shall be used to pay contingent claims including the claims under arbitral awards
against the corporate debtor.
The practice of creating a corpus is not novel to the insolvency framework of
India.101 Creation of a corpus would also lead to a favourable situation where
successful resolution applicants would not be averse to enforcement proceedings by
arbitral award holders after the lifting of the moratorium. This can ensure the
harmonious functioning of the insolvency and arbitration laws without having the
effect of overshadowing each other. Therefore, a ‘corpus’ in the resolution plan
can administer greater stability and smoothness in the CIRP of a corporate debtor
who is also involved in arbitration proceedings out of the ambit of moratorium
under the IBC 2016.
At this juncture, it becomes relevant to highlight that the paper has not
broached a possible situation where the arbitral award is passed during the
101
Tata Steel BSL Ltd v. Varsha W/o Ajay Maheshwari and Anr 2019 SCC OnLine Bom 541 [31].
moratorium and is sought to be enforced after the moratorium period. It would

not be an ideal legal position to pierce the immunity granted under the principle of
clean slate in such situations. If the award is passed during the moratorium, the
award holder must submit the same to the resolution professional in the form of a
claim. Allowing the award holder to enforce such awards after the moratorium,
under the pretext of providing knowledge to the resolution applicant or resolution
professional, would undermine the discipline of the insolvency resolution process.
Moreover, it would lead to an undesirable situation where arbitration law over-
shadows the insolvency law and would defeat the objective of ‘striking a balance’
between the two.
It is also important to note that the paper has assumed that the corporate
debtor undergoing the insolvency resolution process has successfully secured its
buyer/resolution applicant and the business will continue as a going concern.
However, if the CIRP fails and results in the liquidation of the corporate debtor’s
assets, the debtor will cease to have a corporate existence.102 In such a situation,
the only option with the arbitral award holder would be to submit the claim to the
liquidator103 and to get his claim recovered from the proceeds of the liquidation
estate.104
This article has highlighted the underlying existence of uncertainties around
important legal propositions arising out of the intersection of insolvency and
arbitration laws throughout the world, thus emphasizing the imperative need to
harmonize the hostilities between them. A balance needs to be struck between the
domestic economic objectives served by the insolvency laws of a country and the
much wider goal of surviving in the globalized economic system by giving due
importance to principles of pact sunt servanda and party autonomy.
Even though provisions like the moratorium and the clean slate principle are
fundamental to any insolvency legislation, they should not damage the fabric of
international commerce and trade and imperil the willingness and ability of
businessmen to enter into international agreements. It would be parochial to
require all disputes to be resolved under national laws by national courts.
Moreover, such a requirement would hinder the growth of international arbitra-
tion and would be a violation of a State’s international public policy. The relevance
of international public policy cannot be undermined, especially in this era of
growth in cross-border financial and economic activities leading to greater eco-
nomic interdependence.
102
See M/s Devidayal Industries Ltd (In Liquidation) v. M/s Mukund Ltd 2017 SCC Online Bom 3041; The
Insolvency and Bankruptcy Code 2016, s. 54.
103
The Insolvency and Bankruptcy Code 2016, ss 38, 39.
104
Ibid., s. 53.
Online Dispute Resolution: An Effective
Mechanism and an Alternative Tool for Justice
at a Reasonable Time
Aranya CHATTERJEE* & Sharique UDDIN**
It is widely acknowledged that justice is a human right. Easy and online access to justice within a
reasonable time upholds the ideal meaning of justice. Two major questions are addressed in this
article: Can online dispute resolution (ODR) be an alternative to courts for settling disputes and
sustaining the fundamental idea of justice? What should an unexceptionable ODR system entail
to have consumers’ trust? The article discusses various non-binding laws governing ODR
worldwide, further stating the requirement to have government incentives for its adoption, and
recommends various takeaways for private companies.
The study suggests that examining ODR from its past and present instances reveal various
shortcomings which can be curbed in the present incipience for an invulnerable future with ODR
This article, with its analysis, shows that third-party human intervention is more effective than
artificial intelligence (A.I.) algorithms because it allows technology to be used as a facilitator
rather than an ascendant for resolving disputes. At the same time, technology should only be used
as an assistive tool and not implemented in every aspect of the system. A.I. and machine learning
algorithms are better used for data analytics and insights, and should not rely on a system that
suggests and negotiates on behalf of the parties.
The authors delve into various types of dispute resolution systems and their interface with
technology to provide a conceptual understanding of the benefits involved in the ODR process
and how is it being used across the globe for delivering remedies at a time when courts with
burdened shoulders are delaying proceedings, thus signifying the way towards adoption of the
ODR mechanism.
Keywords: Online Dispute Resolution (ODR), Arbitration, Artificial Intelligence (A.I.), Justice,
Technology, e-commerce, Alternative Dispute Resolution (ADR)
*
B.A. LL.B. (Hons.) at Bharati Vidyapeeth New Law College, Pune, (India). He can be reached at
aranyachhatterjee@gmail.com, www.linkedin.com/in/aranyachatterjee.
**
B.A. LL.B. (Hons.) at West Bengal National University of Juridical Sciences, Kolkata (India). He is
interested in Dispute resolution and intrigued by its consonance with legal technology. He is open to
interesting ideas and conversations at shariqueuddin@icloud.com, www.linkedin.com/in/shariqueud
din/.
Chatterjee, Aranya & Uddin, Sharique. ‘Online Dispute Resolution: An Effective Mechanism and an
Alternative Tool for Justice at a Reasonable Time’. Arbitration: The Int’l J. of Arb., Med. & Dispute Mgmt 87,
no. 4 (2021): 529–549.

1 INTRODUCTION
Access to justice is a basic human right which should never be compromised under
any circumstances. It is widely evident that to access justice, one has to reach
courts; however, courts’ current framework is inconsistent with the promise of
delivering justice within reasonable time due to pendency of cases, speed ineffi-
ciency, nonadaptive proceedings and asymmetrical listing of cases. This article
attempts to unleash a dire need for a new and prompt mechanism to achieve the
objective of justice in a reasonable time. The article sets out to prove that justice
through online dispute resolution (ODR) is not a fantasy; rather, it should be
considered as a facilitator and alternative to courts.
Inaccessibility to justice is an infringement of a right to justice, which is a basic
human right. Online access to justice could act as a panacea to the rampant
problem of denial of such a right for many. The benefit offered by ODR can
result in the realization of the right to justice, especially for the physically and
financially disabled. There is a need to harness technology that will effectively
overcome any lacunae blocking maximum adoption by society and settle certain
valued claims offered by this alternative medium for the betterment of the judicial
system of the country. The implementation of these simple, swift and inexpensive
mechanisms shall have a positive impact in various aspects of the country at large,
creating a richer society both socially and economically. There is a dire need to
harness technology for redress of the delay in litigation caused due to the backlog
of cases. This delay can effectively be handled by a quick out-of-court redress
mechanism such as ODR – by empowering litigants to settle their own disputes in
an amicable manner that emanates benefit to all, including the parties and profes-
sionals. In regard to technology, the paper with its analytical framework demon-
strates that, for the efficiency of justice, technology plays a critical role.
The paper answers several questions that will propel our assertions and will
also give veracity to the argumentation of justice through ODR: Can ODR help
realize the idea of the right to justice and be implemented for the masses at large?
Can the ODR mechanism be an alternative to the courts in delivering justice?
What should an ideal ODR system entail? Are government and private companies
doing enough to secure a stable mechanism and a better future with ODR?
The paper aims to shed light on the ODR mechanism as an auxiliary of courts
in delivering justice which has thus far not drawn the attention it deserves. In Part
II, the need for and evolution of ODR is explained to highlight the slow yet
meaningful evolution of ODR platforms that has taken place. In Part III, we aim
to provide an understanding of various processes involved in the working of
ODR, along with diagrammatically representing each process for clarity in percep-
tion. Part IV highlights the undeniable advantages of the ODR mechanism in
ONLINE DISPUTE RESOLUTION 531
delivering justice and how it serves justice. Further, Part V provides a conceptual
understanding of modern technological advancements like A.I. and questions their
relevance in the present systems, as well as highlighting considerations to be kept in
mind for the composition of an ideal ODR system. Part VI discusses the global
framework for ODR, emphasizing its present use in delivering justice worldwide.
Part VII considers the loopholes and lacunae in the present system that enervate
the future of ODR, and recommends scaling and expanding the scope of justice
for the masses. Finally, Part VIII presents our concluding remarks.
2 AN OVERVIEW OF ODR
Since the beginning of the twenty-first century, the world has witnessed the rapid
growth of the internet at the rate of 566.4%.1 Despite the economic crisis of 2000–
2001 (in which the ‘dotcom bubble’ burst2) and the ‘Great Recession’3 of 2007–
2008 which occurred in national economies globally, the digital economy grew
vigorously,4 resulting in an exponential growth in the e-commerce sector. It is
evident that the outcome of the economic crisis was a blessing in disguise as it
brought a revolution in e-commerce. In addition, there have been disputes in B2B
(business-to-business), B2C (business-to-consumer), and C2C (consumer-to-con-
sumer) operations, as well as e-contracts and the like, raised in online media. All
these phenomena have contributed to the evolution of ODR.
The concept of ODR has its roots in alternative dispute resolution (ADR);
the two are essentially the same, the only difference being that in ODR the
resolution takes place in an online medium with the help of technological tools.
ADR has witnessed significant success in this concept, as it is a non-traditional
method which does not involve courts and litigation moreover tries to solve
disputes comparatively faster than courts, Ensuring? a win-win situation for all
parties. Today the ADR mechanism is so evolved that multi-billion dollar disputes
are resolved using it. For instance, the Permanent Court of International
Arbitration in The Hague, The Netherlands (in a tax dispute arbitration case
involving Vodaphone) expressed support of the ADR arbitration mechanism by
1
World Internet Users Statistics and 2020 World Population Stats, Internetworldstats.com (2021), http://
www.internetworldstats.com/stats.htm (accessed 9 Jan. 2021).
2
The Dotcom Bubble, Nethistory.info (2021), http://www.nethistory.info/History%20of%20the%
20Internet/dotcom.html (accessed 9 Jan. 2021).
3
Scott Cooper, Colin Rule & Louis F. Del Duca, From Lex Mercatoria To Online Dispute Resolution:
Lessons From History in Building Cross-Border Redress Systems, Papers.ssrn.com (2021), https://papers.
ssrn.com/sol3/papers.cfm?abstract_id=1840572 (accessed 9 Jan. 2021).
4
Rossella Cominetti, La Infraestructura De Soporte Para La Economía Digital En Chile, 2002 Revista de la
CEPAL (2002).
noting that the dispute between an investor of one contracting party and the other
contracting party shall as far as possible be settled amicably through negotiations.5
The ODR mechanism enhances ready access to justice, proving the point that
‘justice delayed is justice denied’. The right to access justice is considered a
quintessential human right.6 In fact, we believe the right to access justice combined
with the right to justice in a reasonable time is what defines the idea of ‘right to
justice’. The pendency of cases and delaying of justice clearly signify that, con-
fronting the complex system of courts with their overburdened caseloads, we need
to recognize that technology is the key to the administration of justice. However,
further evolution is needed to shift disputes from traditional to non-traditional
online mechanisms for the best interest of justice through a speedy and effective
resolution to uphold this human right.
2.1 ADOPTION OF ODR
The access to cheap internet post-2010s has further incentivised professionals and
organizations to resolve disputes in the comfort of their homes. Early adoption has
been in the merchant-to-consumer online e-commerce business, eBay7 being the
pioneer in developing effective systems. The system works on classes provided by
the e-commerce platforms which state that merchants should provide consumers
with fair, timely, and affordable means to settle disputes and obtain redress and only
when a settlement is not reached can the consumer or merchant file for legal action.
The International Chamber of Commerce’s policy statement recommends resolving
such disputes within the organizations’ consumer satisfaction or ODR mechanism,
which also provides jurisdiction and law in electronic B2B or B2C transactions. The
major challenge is to provide a robust consumer-centric system that can protect the
consumer while shopping online. Organizations such as the Organisation for
Economic Cooperation and Development (OECD)8 have provided guidelines for
protection using alternate methods of resolving disputes in a cost – and time-efficient
manner such that the process does not impose an extraneous burden on the
consumer. The efficiency of the process has been recognized by organizations,
businesses, and consumer representatives, even though the effort to push the initia-
tive across various sectors is still in its early stages.
5
‘Vodafone Wins International Arbitration Against India in $2 Billion Tax Dispute Case, The Wire (2021),
https://thewire.in/business/vodafone-Arbitration-india-tax-dispute-case (accessed 14 Jan. 2021).
6
Access to Justice as a Human Right, Ebook (2007) [Worldcat.Org] (Worldcat.org 2021), https://www.
worldcat.org/title/access-to-justice-as-a-human-right/oclc/682036284 (accessed 9 Jan. 2021).
7
Ebay Services: Buying and Selling Tools: Dispute Resolution Overview, Pages.ebay.com (2021), https://
pages.ebay.com/services/buyandsell/disputeres.html (accessed 14 Jan. 2021).
8
Oecd.org (2021), http://www.oecd.org/investment/mne/38297552.pdf (accessed 14 Jan. 2021).
Multinational giants such as eBay, Amazon, and Alibaba9 all incorporate ODR
systems and successfully prove that resolution by way of such systems is possible
while still ensuring consumer and merchant satisfaction. Compared with businesses
that do not have such automated integrated platforms, the risk of running into
litigation would be quite high.
3 MAJOR PROCESSES INVOLVED

Various ADR approaches – mainly negotiation, conciliation, mediation, and
arbitration – have proven to be successful in escaping the burden imposed by
judicial procedures. Advances in internet technology have been incorporated in
some courts, termed ‘cyber courts’ or ‘cyber tribunals’, where court procedures,
filing of petitions, and conferences are conducted in an online medium. However,
these cannot be considered ‘alternative’ as they are merely traditional courts with
traditional mechanisms pursued in an online medium. This article will refer to the
main types of ODR: assisted negotiation, automated negotiation, online media-
tion, and online arbitration.
The present ODR systems are either based on artificial intelligence or use a
third-person neutral professional. Various A.I. strategies were incorporated into the
process on the same lines in the nineties when the A.I. innovation began.10 These
are mostly related to the negotiation aspect of the process without the presence of
any neutral party. The idea was to empower the customer into negotiating their
cases by themselves through negotiation support systems (‘NSS’) and negotiation
decision support systems (‘NDSS’), two kinds of technology developed through A.
I.11 Companies like smartsettle12 have used these systems in facilitating negotia-
tions between parties which happen through blind bidding, and A.I. automatically
makes the settlement when the claims are in the zone of possible agreement
(ZOPA). However, only monetary claims can be negotiated in these systems,
and non-monetary attributes are not considered.
Assisted negotiation is the simplest type of negotiation where there is no such
third human party involvement. These are A.I.- based assisted mechanisms where
the technology plays a role in solving the dispute of the parties by suggesting
answers, asking questions, and sending reminders. Square Trade was one of the
9
Help Center, Service.alibaba.com (2021), https://service.alibaba.com/page/knowledge?pageId=128&
category=9207651&knowledge=20155164&language=en (accessed 14 Jan. 2021).
10
Mohamed S Abdel Wahab, M. Ethan Katsh & Daniel Rainey, Gabriela R. Szlak, Online Dispute
Resolution in Latin America: Challenges and Opportunities in Online Dispute Resolution: Theory and Practice
(Eleven Internatl Publ 2012).
11
Emilia Bellucci, Arno R. Lodder & John Zeleznikow, Developing an Online Dispute Resolution Environment:
Dialogue Tools and Negotiation Support Systems in a Three-Step Model, 10 Harvard Negotiation L. (2007).
12
Smartsettle.com 2021, https://www.smartsettle.com/ (accessed 10 Jan. 2021).
leading ODR providers for assisted negotiation, specializing in claims originating

from eBay transactions.13
Automated negotiation is also known as ‘blind-bidding’ negotiation, where
money is the only output; this is a specific type of negotiation conducted entirely in
an online medium without any human intervention. Each party proposes its specific
claims, and if the system finds the offer matches the proposal of the opposing party the
matter is automatically solved. ‘Cyber Settle’14 and ‘Smart Settle’15 are examples of
providers of this ODR method.
Online mediation involves voluntary mediation processes where the
mediation takes place with a third human party’s assistance. The third-party
acts as a mediator, and does not make any binding decision. The parties
decide and arrive at an outcome. The contract is signed at the end of the
proceedings and is registered in the local court to provide validity. The parties
are bound by the confidentiality clauses of the contract and the proceedings
take place in a similar manner to offline mediation proceedings. The only
technological advantage is the better case management system. Some ODR
providers that offer such system are MODRia16 and The Mediation Room.17
Online arbitration involves a third human intervention between the parties,
which is neutral and impartial. Unlike mediation, the parties in arbitration are
bound by the arbitrator’s decision, also known as an arbitral award. There is no
face-to-face interaction, and technology plays a major role as a fourth party for
settling the dispute and delivering the award online.
For ADR modes to be considered ODR, a substantial number of proceedings
should be carried out online, and offline proceedings should only occur where strong
causes arise to advocate for them or where parties consider that the improved efficacy
and efficiency of dispute resolution are not desirable to conduct online.
13
(2021), http://pages.ebay.com/services/buyandsell/disputeres.html (accessed 10 Jan. 2021).
14
Cybersettle, Cybersettle.com 2021, http://www.cybersettle.com (accessed 10 Jan. 2021).
15
Smartsettle.com 2021, https://www.smartsettle.com/ (accessed 10 Jan. 2021).
16
MODRia | Courts & Justice | Tyler Technologies, MODRia.com (2021), http://mODRia.com (accessed
10 Jan. 2021).
17
Themediationroom.com (2021), http://www.themediationroom.com (accessed 10 Jan. 2021).
3.1 WORKING OF ODR MECHANISM (DIAGRAM)
Figure 1 Generational Analysis of Authors in CR and ADR
Information regarding the ODR
Claimant Commencement of the procedure

Formation of identities
Explanation of claim
ODR Provider
Evaluation of jurisdiction and
selection of suitable dispute
resolution mechanism
Respondent Notice of Claim

Recognition of Claim
Response and counter to the claims

The Dispute Resolution Process
Automated Assisted Online Mediation Online Arbitration

Negotiation Negotiation
Parties present
Parties caucus
Parties Input Parties evidences and
with Mediator
Settlement Exchange witnesses to
who tries to
system support their
facilitate to
System based claim and negates
resolve their
configures and proposal the same for the
proposals
evaluates the which fits opposing party
Zone of possible their
Parties Involved
agreement demands Arbitrator
decide whether
determines the
suggestions are
cases of the
suitable
parties
Settlement Achieved Award

Contract is signed, recorded and communicated to the parties Declaration of
Award and
subsequent
No Settlement Communication
Parties Re-negotiate, Contract is enforced, if required i
or escalate the matter Appeal/
to courts Challenge
4 HOW JUSTICE IS SERVED BY ONLINE DISPUTE RESOLUTION

It is widely acknowledged that for a democratic state following the rule of law,
access to justice is considered a human right which should never be compromised
at any corner. However, accessing justice through courts is perceived as an onerous
and costly procedure for a person, whereas justice through ODR is flexible, cheap
and speedy. Various benefits of the ODR mechanism have been recognized over
the years, which encourages the use of such mechanisms:
4.1 LEVEL PLAYING FIELD
Online dispute resolution helps reduce logistical issues while enabling parties across
the world to solve their disputes efficiently at a low cost.18 This is possible because
of cheap and accessible internet facilities. It is this connectivity that enables a level
playing field among the parties.
4.2 COMMUNICATION
Online mediation or negotiation occurs at home in a disputant-friendly environ-
ment and enhances the original personality. Cross-border parties from varied
cultures enhance the global understanding and assist in swift resolution.19
4.3 NEUTRAL PLACE
The online in-home setting undertones verbal communication and prevents the dis-
putants from becoming aggressive. It also presents a neutral atmosphere if not an
amicable one, where the discomfort from the physical meeting room in the presence
of judges and counsel is greatly reduced. The parties are relatively less anxious compared
to a conventional court setting due to the friendly surrounding. In contrast to the courts,
the parties are free to choose only the settlement which they feel is beneficial for them
along with taking their time to be inquisitive about the counter party’s proposal, helping
channel the effective communication between them. Although the parties can still
contest the matter in the courts, wise disputants may not engage in additional litigation
if the settlement already reached is a logical and acceptable one.
18
Mirèze Philippe, Http://Arbitrationblog.KluwerArbitration.Com/2017/09/11/Equal-Access-Information-
Justice-Huge-Potential-Online-Dispute-Resolution-Greatly-Underexplored/ (Kluwer Arbitration Blog
2017), http://Arbitrationblog.kluwerArbitration.com/2017/09/11/equal-access-information-justice-
huge-potential-online-dispute-resolution-greatly-underexplored/ (accessed 10 Jan. 2021).
19
Louis F. Del Duca, Colin Rule & Vikki Rogers, Designing a Global Consumer Online Dispute Resolution
(ODR) System for Cross-Border Small Value–High Volume Claims – OAS Developments, 42 Uniform
Commercial Code L. J. (2010).
4.4 SELF-REPRESENTATION
The process is particularly useful in small valued consumer claims and civil suits
where the disputant parties cannot/do not want to hire any legal services as it
allows them to present the case without being an ODR professional.
4.5 EQUAL ACCESS
The online system prevents either one of the parties from being in an advantageous
or disadvantageous position by facilitating equal opportunity to access the same
information in a standard environment. The only prerequisite is access to the
internet, and all the information of the case is accessible to both parties in a
transparent manner eliminating differential accessibility to the courts.
4.6 NO FORUM SELECTION
The process is fairly straightforward with no implications of jurisdiction and forum

selection, especially in cross-border issues. The services are rendered worldwide, and
the discretion to exclude certain countries lies with the professionals. In the past,
some countries have been excluded by professionals due to human rights or privacy
violations. The method of resolution is for the parties to decide, and a professional is
then allotted once when the parties agree to solve it over the platform.
4.7 GREATER ACCESSIBILITY
Online resolution is an especially beneficial process for disabled and low-income

persons as it presents a viable low-cost and convenient alternative to the conven-
tional and cumbersome judicial process. The United Nations Universal
Declaration of Human Rights has labelled access to the internet as an affirmative
human right20 which enables access to information and helps the disabled and
discriminated against, including those in rural and remote areas, to overcome the
systematised marginalization they face in society through access to information
technology and the justice system.21
20
Paul T. Jaeger, View of Disability, Human Rights, and Social Justice: The Ongoing Struggle for Online
Accessibility and Equality | First Monday, Firstmonday.org (2021), https://firstmonday.org/ojs/index.
php/fm/article/view/6164/4898 (accessed 10 Jan. 2021).
21
J Beqiraj, L McNamara & V Wicks, Access to Justice for Persons with Disabilities: From International
Principles to Practice, International Bar Association (Oct. 2017).
4.8 COURTS DECONGESTION
In typical court scenarios, people refrain from filing small value disputes because
they rarely obtain a judgment within several months or even years. The main issues
with the pendency of cases across jurisdictions are the budgetary constraints
combined with lack of productivity tools and understaffed heads. Solving a major-
ity of these disputes online through ODR mechanisms would help considerably
reduce the courts’ burden and focus their attention on major cases that cannot be
resolved online.
The secure process takes place online, doing away with all the unprotected
emails and communication between the parties as all the messages are shared on the
online platform eliminating the risk of mistakenly sending it to wrong recipients.
5 TECHNOLOGICAL SHORTCOMINGS IN ODR

The foremost idea that comes to someone’s mind when using A.I. in the primary
process would be developing a virtual assistant like Alexa22 or Siri23 to mediate the
dispute neutrally. As much as this looks hopeful and futuristic, it poses a set of
challenging questions.
Artificial intelligence is just a computer brain, which takes the independent
decision based on information fed into it through the machine and deep learning
algorithms. The chances of the system being compromised are high, as the system
was designed by humans and has the potential of biases creeping in at various stages
of the structure. The biases creep in through the data, pretty early during the
formulation of the scientist’s deep learning algorithm.24 There are mainly three
stages at which the biases creep in. First, bias could creep in during framing of the
problem; second, during the collection of data; and third, during the data
preparation.25
As much as A.I. is competent in identifying and eliminating the human biases
encountered during a conventional method of resolution, the self-assessment in
such sensitive application areas cannot eliminate the algorithmic biases that guide
its overall functioning.26 A.I. runs on a certain algorithm worked out on a per case
22
Keyword Research, Competitor Analysis, & Website Ranking | Alexa, Alexa.com 2021, https://www.
alexa.com/ (accessed 14 Jan. 2021).
23
Siri, (Apple (India) (2021), https://www.apple.com/in/siri/ (accessed 14 Jan. 2021).
24
Karen Hao, This Is How AI Bias Really Happens–And Why It’s So Hard to Fix, MIT Technology
Review (2019), https://www.technologyreview.com/2019/02/04/137602/this-is-how-ai-bias-
really-happensand-why-its-so-hard-to-fix/ (accessed 10 Jan. 2021).
25
Ibid.
26
James Manyika, Jake Silberg & Brittany Presten, What Do We Do About the Biases in AI?, Harvard
Business Review (2019), https://hbr.org/2019/10/what-do-we-do-about-the-biases-in-ai (accessed
10 Jan. 2021).
basis.27 It would generally look into the problem, list its interests, try to accom-
modate and eventually present a decision by guiding the negotiations from its
historical knowledge about it.28 Current A.I. integrated systems involve scientists
to formulate an algorithm that gives out the best possible solutions on a per case
basis.29 Such systems essentially have two major drawbacks. The ‘best solution’
moderately is a nebulous concept; it is highly subjective and would change with
the changing situation. For example, if an algorithm figures out that ‘A’ has been
the most favourable settlement in ‘Y’ type disputes, it might suggest the same
settlement for the Y disputes in every scenario, hampering the whole process. At
the same time, while learning the decision making, the same historical, gendered,
racial, or sexual inequality may creep in by unrepresentative training data, and its
validity, being unprejudiced and representative of reality, would remain conten-
tious. For example, the criminal justice algorithm used for determining who would
recommit an offence in Broward County, Florida, USA, miscalculated the recidi-
vism index for African American defendants as ‘high risk’ compared to white
American defendants which were categorized as ‘low risk’.30
Another major roadblock is the validity of smart contracts or digital signatures
in various jurisdictions across the globe. The backbone in the alternate resolution
process is the signing of a contract at the end of the proceedings such that the
settlement remains sealed. In the online setting, such contracts are signed through
conventional e-signs or smart contracts which work on blockchain technology. All
kinds of e-signs are legal in all the major developed and developing countries;
however, the validity can still easily be contended in a court of law due to the
absence of robust legislation preventing frivolous litigation.31 Smart contracts that
work on blockchain technology still do not have much legal recognition around
the world. Italy became the first country to legislate for the distributed ledger
system and smart contracts in 2019.32 In India, smart contracts are legally valid;
27
Paul Scharre & Michael Horowitz, Artificial Intelligence: What Every Policymaker Needs to Know, Center
for New American Studies (2018), https://www.cnas.org/publications/reports/artificial-intelligence-
what-every-policymaker-needs-to-know (accessed 10 Jan. 2021).
28
Bc. Monika Moiariková, Using Artificial Intelligence in Online Dispute Resolution, Masaryk University
Faculty of Informatics (2018), https://is.muni.cz/th/athho/dp.pdf (accessed 10 Jan. 2021).
29
Supra n. 8.
30
Jeff Larson et al., How We Analyzed the COMPAS Recidivism Algorithm, ProPublica (2016), https://
www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm (accessed 10 Jan.
2021).
31
Lillyana Daza Jaller & Martin Molinuevo, Digital Trade In MENA: Regulatory Readiness Assessment,
Worldbank.org (2020), http://documents1.worldbank.org/curated/en/786271585574266618/pdf/
Digital-Trade-in-MENA-Regulatory-Readiness-Assessment.pdf (accessed 10 Jan. 2021).
32
Stuart D. Levi & Alex B. Lipton, An Introduction to Smart Contracts and Their Potential and Inherent
Limitations, The Harvard Law School Forum on Corporate Governance (2018), https://corpgov.law.
harvard.edu/2018/05/26/an-introduction-to-smart-contracts-and-their-potential-and-inherent-limita
tions/ (accessed 10 Jan. 2021).
however, the legislature does not provide any protection to the parties if they incur
damage due to the absence of any regulation.33
Enormous investment in the development of novel technology will require
many financial resources and would work against the major factor of incorporating
A.I. into the system. This would spike up the cost of the proceedings in the short
run. Apart from these, privacy factors and the system’s potential to be hacked
represent a major challenge that needs to be solved before any attempt at incor-
porating the smart contract sector with technology is pulled off.
The system at the present stage also fails to consider multiple facets of human
emotional intelligence, the self-respect of the parties, and the lack of insight about
the strongarming powers of both parties at a negotiation table. Such aspects can
eventually alter the findings.
Such challenges impose a major confidence factor on the parties and could
result in loss of trust in the proceedings if the system fails to address the aforemen-
tioned processing, confidentiality, and lack of transparency on how the algorithm
arrived at the findings. Instead of implementing an Artificial Intelligence-based
decision-making system at the early adaptability stage, the mechanism should entail
a combination of third-party human intervention with machine learning algo-
rithms. The system learns from the human decision-making process and responds
with analytical data that better analyses and improves the mechanism.
6 GLOBAL LEGISLATION ON ODR

The United Nations Commission on International Trade Law (UNCITRAL) is
the primary institution that lays down laws and regulations at a global scale and
defines various ADR mechanisms across the world.34
Since 2010, Working Group III ODR has been enforced by UNCITRAL.
The group works on drafting a set of rules for a global system to handle different
conflicts such as cross-border, low-level volume, and high-level volume claims that
come under the ambit of ODR35 from time to time. In Working Group III ODR,
the delegates come from different cultures and the diversity has been an enriching
and empowering factor. Unfortunately, diversity creates conflicts of opinions in a
33
STA Law firm, The Enforceability of Smart Contracts in India – Corporate/Commercial Law – India,
Mondaq (2019), https://www.mondaq.com/india/contracts-and-commercial-law/874892/the-enfor
ceability-of-smart-contracts-in-india (accessed 10 Jan. 2021).
34
United Nations Commission on International Trade Law |, Uncitral.un.org (2021), https://uncitral.un.
org/ (accessed 11 Jan. 2021).
35
Colin Rule, Vikki Rogers & Louis Del Duca, Designing a Global Consumer Online Dispute Resolution
(ODR) System for Cross-Border Small Value-High Volume Claims–OAS* Developments, 42 Uniform
Commercial Code L. J. (2010), http://colinrule.com/writing/ucclj.pdf (accessed 11 Jan. 2021).
group, and the group’s consensus has remained out of reach in many aspects
because of the difference in views and opinions.
In February 2016, Working Group III delivered UNCITRAL Technical
Notes on ODR, which assist providers and users in certain aspects. These technical
notes are non-binding and converted in the form of a descriptive document
illustrating the ODR process elements.36 Although these technical notes are not
legally binding and provide no modifications to the parties’ selected rules, they
provide a framework for the conduct of the proceedings in the macroscope.
Similarly, organizations across the world have implemented various other guide-
lines and recommendations, delving into the details of how the proceedings should be
conducted virtually. The Chartered Institute of Arbitrators (CIArb) Guidance Note
on Remote Dispute Resolution,37 International Council for Online Dispute
Resolution’s Free Guide to Video Arbitrations (‘IOCDR Guide’),38 the
International Council for Commercial Arbitration-New York City Bar-Conflict
Prevention and Resolution Protocol on Cybersecurity in International Arbitration
(2020 edition),39 the Data Protection in International Arbitration (public consultation
draft) developed by the International Council for Commercial Arbitration-
International Bar Association (ICCA-IBA) Task Force on Data Protection in
International Arbitration, and the African Arbitration Academy Protocol on Virtual
Hearings in Africa are tribunal-issued cyber protocols40 in consonance with the
European Union General Data Protection Regulation,41 which provides the requisite
security standard for the information shared while resolving the dispute online.
Overall, the guidelines pertain to written commitments of prohibited screen-
shots and recordings of the proceeding in any form, videoconferencing and
messaging being end-to-end encrypted along with clear instruction of room
management and strict adherence for effective and seamless virtual hearing. The
legislation is non-binding on the parties, who are free to adopt whatever
36
Uncitral.org (2021), http://www.uncitral.org/pdf/english/texts/ODR/V1700382_English_
Technical_Notes_on_ODRpdf (accessed 11 Jan. 2021).
37
Kateryna Honcharenko & Mercy McBrayer, Guidance Note on Remote Dispute Resolution Proceedings,
CIArb (2020) https://www.ciarb.org/media/8967/remote-hearings-guidance-note.pdf?mc_cid=
cad9adebdf&mc_eid=f90f77d952 (accessed 10 Jan. 2021).
38
ICODR Video Arbitration Guidelines, The International Council for Online Dispute Resolution (2021),
https://icODR.org/guides/videoarb.pdf (accessed 10 Jan. 2021).
39
ICCA-NYC Bar-CPR, ‘ICCA-NYC Bar-CPR Protocol: Cybersecurity in International Arbitration,
International Council for Commercial Arbitration, the New York City Bar Association,
International Institute for Conflict Prevention and Resolution (CPR) (2021), https://cdn.
Arbitration-icca.org/s3fs-public/document/media_document/icca-nyc_bar-cpr_cybersecurity_proto
col_for_international_Arbitration_-_electronic_version.pdf (accessed 10 Jan. 2021).
40
The Africa Arbitration Academy, Africa Arbitration Academy Protocol on Virtual Hearings in Africa, The
Africa Arbitration Academy (2020), https://www.africaArbitrationacademy.org/wp-content/uploads/
2020/04/Africa-Arbitration-Academy-Protocol-on-Virtual-Hearings-in-Africa-2020.pdf (accessed 10
Jan. 2021).
41
European Union General Data Protection Regulation 2016.
procedural guidelines they wish. However, a global standard procedure and secur-
ity standard would bring in more credibility to the mechanism on the customer
end and advance its adoption rate.
6.1 ODR AROUND THE WORLD
There have been different implementations of ODR systems across the world,
government helming the process in some of these. In the United States, the systems
are primarily text-based and try to resolve asynchronously through mutual agree-
ment, focusing on feasibility and accessibility. When the parties fail to reach a
resolution, then the issue proceeds to the court and in-person evaluation is con-
sidered as an alternative. British Columbia uses a resolutory platform called ‘civil
resolutionary tribunals’ that mainly handles motor vehicle and small claims, passing
an evaluator resolution and having the same force of law as an in-person hearing.42
In China, the focus is mainly on building infrastructural courthouses and
videoconferencing facilities called ‘internet courthouses’ with the capacity to
facially recognize the parties and consider their paperwork through ‘consoles’.
Each issue is mainly resolved by a judge through videoconferencing, delivering a
non-binding settlement option followed by the mediation phase and eventually
ending in conventional litigation if no one agrees.43
In the Netherlands, ODR is used for evaluating divorce and debt claims,
primarily managed by the Rechwizer system. It asks lucid questions to assess the
parties’ interests and positions, which are later taken into consideration while
suggesting an amicable settlement process called ‘separating together’.44
The European Union has made ODR compulsory through regulations for
organizations undertaking business activities to notify and register complaints from
their customers.45
Concilianet, a Mexican ODR real-time chat software handled by Profeco, the
Mexican National consumer protection agency, resolves disputes between quasi-
public businesses and citizens, facilitating the conversation between the company’s
representative and the customer in real time.46
42
Courts Using ODR | ODR Info, ODR info (2021), http://ODR.info/courts-using-ODR/ (accessed
14 Jan. 2021).
43
Goudong Du, How the Beijing Internet Court Develops and Runs Its IT System: Inside China’s Internet
Courts Series 04 – China Justice Observer, Chinajusticeobserver (2019), https://www.chinajusticeobser
ver.com/a/how-the-beijing-internet-court-develops-and-runs-its-it-system (accessed 10 Jan. 2021).
44
Jeremy Barnett & Philip Treleaven, Algorithmic Dispute Resolution–the Automation of Professional Dispute
Resolution Using AI and Blockchain Technologies, 61 Computer J. (2017).
45
EUR-Lex – 32013R0524 – EN – EUR-Lex, Eur-lex.europa.eu (2021), https://eur-lex.europa.eu/
legal-content/EN/TXT/?uri=celex%3A32013R0524 (accessed 11 Jan. 2021).
46
Wahab, Katsh & Rainey, supra n. 10.
In Hawaii, the judicial system allows for e-filing of cases from anywhere for
registered attorneys and counsel.47 Similarly, in the Persian Gulf the Abu Dhabi
Global Market Digital Courts system was set up in 2018, having authority to settle
civil and commercial disputes.48
In India, there have been efforts by both the government and by private
entities. The primary alternative dispute resolution state bodies in India, Lok-
Adalats ‘court of the people’, have been operating online during the pandemic
with the help of public and private players and have resolved various low-value
disputes with videoconferencing or calls for parties who cannot afford legal fees. A
total of thirty-one Lok-Adalats were organised in fifteen states, disposing of over a
million cases in just seven months from June to December 2020, settling Rs
3227.99 Cr.49
The creation of such establishments is a welcome step in the right direction;
however, their validity can only be proved in the times to come. Nevertheless,
these specific examples reaffirm the fact that the ODR mechanism is decentralising
the idea of court justice and helping to further the idea of the right to access justice
and give a representation platform for the victims.
7 RECOMMENDATION
Evidence that justice has been delivered through ODR is undeniable. All the nuances,
difficulties, and problems that arise in a disputed matter have been successfully resolved
for many years, forming a successful tool for resolving disputes out of court and
rendering services to humankind. However, even after two decades, ODR has not
achieved what was expected. In the mid-1990s, more than 200 ODR providers
entered the market as more online disputes were emerging in the e-commerce sector.
It is clear now that many of these ODR providers have fallen and could not succeed,
for many reasons.50
As it is seen now, early ODR providers were incognisant about network
coverage and the network feasibility of people; they assumed that everyone would
have a viable network connection, overlooking the poor or nonexistent connec-
tion in remote and rural areas. Also, some lawyers misapprehended the fact of
47
Efiling, Courts.state.hi.us (2021), https://www.courts.state.hi.us/legal_references/efiling (accessed 12
Jan. 2021).
48
Digital Federal Court In UAE | ADGM, Adgm.com (2021), https://www.adgm.com/adgm-courts/
digital-approach (accessed 12 Jan. 2021).
49
LIVELAW NETWORK, NALSA Helps in Disposal of Over 10 Lakh Cases in National Lok Adalat on
Dec 12, Livelaw.in (2021), https://www.livelaw.in/news-updates/lok-adalat-nalsa-adr-167288
50
Mirèze Philippe, ODR Redress System for Consumer Disputes, 1 Int’l J. Online Dispute Resolution
(2014).
ODR, thinking it would make them jobless as no one would want to visit them
for small disputes because resolution through ODR is preferable.
7.1 REQUIREMENT OF REFORM
Governments should be asked for easy access to justice through online media as it has
been proven that the ODR mechanism is affordable and non-congestive, unlike
courts where even after months or even years people are not able to get justice.
ODR providers have proven that justice through ODR is not a science fiction, but
readily available for sustainable business goals, consumer satisfaction, and other civil
matters. Recently, because of the COVID pandemic outbreak, it became necessary to
devise an ODR mechanism to solve disputes online. Many international courts and
arbitral institutions such as the International Chamber of Commerce (ICC),51 the
American Arbitration Association (‘AAA’), the AAA’s international division, the
International Centre for Dispute Resolution (‘AAA-ICDR’),52 the International
Center for the Settlement of Investment Disputes (‘ICSID’),53 the Singapore
International Arbitration Centre (‘SIAC’),54 the Stockholm Chamber of Commerce
(‘SCC’),55 and the London Court of International Arbitration (‘LCIA’)56 have issued
guidance for videoconferencing and digitised case management systems. Such institu-
tions aim to develop a robust digitised venture with cyber expertise for ODR
procedures.
Recently in an ICC arbitration between J&F Investimentos S.A. and Paper
Excellence established that arbitration institutions are versatile in settling high-
valued disputes online.57 Amid the COVID-19 pandemic, the hearing was con-
ducted with online videoconferencing consisting of seventy participants from
Spain, Singapore, London, Brazil, and New York. The expeditious transition
51
2017 Arbitration Rules – ICC – International Chamber of Commerce, ICC – International Chamber of
Commerce (2021), https://iccwbo.org/dispute-resolution-services/Arbitration/rules-of-Arbitration/
52
AAA-ICDR COVID-19 Resource Center | ADR Org, Go.adr.org (2021), https://go.adr.org/covid19.
html?_ga=2.128862348.1686453586.1584112272-260696787.1566227680 ( accessed 9 Jan. 2021).
53
A Brief Guide to Online Hearings at ICSID | ICSID, Icsid.worldbank.org (2021), https://icsid.world
bank.org/news-and-events/news-releases/brief-guide-online-hearings-icsid?CID=362 (accessed 9 Jan.
2021).
54
Siac.org.sg (2021), https://www.siac.org.sg/images/stories/press_release/2020/[ANNOUNCEMENT]%
20COVID-19%20Information%20for%20SIAC%20Users.pdf (accessed 9 Jan. 2021).
55
COVID-19: How The SCC Is Responding – The Arbitration Institute of the Stockholm Chamber of
Commerce, Sccinstitute.com (2021), https://sccinstitute.com/about-the-scc/news/2020/covid-19-
how-the-scc-is-responding/ (accessed 9 Jan. 2021).
56
LCIA Services Update: COVID-19, Lcia.org (2021), https://www.lcia.org/lcia-services-update-covid-
19.aspx (accessed 9 Jan. 2021).
57
A Pandemia Na Maior Arbitragem Societária Do País, A Disputa Pela Eldorado, Exame (2021), https://
exame.com/negocios/a-pandemia-na-maior-arbitragem-societaria-do-pais-a-disputa-pela-eldorado/
from the physical in-person to online at-home hearing during the surge of
COVID-19, combined with worldwide lockdown and transport restrictions, exhi-
bits ODR as a viable dispute resolution option in such times.
7.2 NEED FOR CONTINUITY AND IMPROVISATION
Lack of continuity and improper improvisation are major aspects of the develop-
ment of ODR that one should learn from the past. There is a need to improvise in
the present for a better future with ODR
As with the lack of due diligence, past circumstances can be the consequences
of the future. Decades back, around 1998–2000, many infrastructures and setups
were built for an online justice system. However, due to lack of proper improvisa-
tion, modification, maintenance, and upgrades as compared to developing tech-
nology, people’s expectations were not met. Another factor might have been
scepticism regarding the uncertainty of out-of-court dispute settlement and its
outcome. Imperfect acquaintance with internet technology and communication
could also have been a consideration by the public, along with the aforementioned
factors interrupting ODR systems in those days.
Two major platforms funded by the European Commission have failed due to
the aforesaid factors: the European Extra-Judicial Network (EEJ-NET) and the
Electronic Consumer Dispute Resolution (ECODIR). They were planned to have
a database for settling consumer disputes out of court. Under the recommendation
of the Commission, they were made to enhance consumer confidence in resolving
disputes out of court. It was considered by the Commission that there is a disparity
between economic value and the cost of court settlement, emphasising the need to
build an out-of-court settlement mechanism,58 which was later interrupted.
The search for the ideal mechanism is still ongoing. The product is that a novel
solution to the age-old dispute system along with that continuity of care pertaining
to standard measures is needed. There is a gap in the market creating space for
experimentation without much obligation towards competition as governments and
companies are still figuring out the ideal ODR platform in consonance with the
technology that can help translate from early adaptability to the masses.
7.3 NEED OF CARE FOR STABILITY AND SUSTAINABILITY
There are various significant factors that can affect the growth of a platform, for
which it needs proper attention and care, perpetually. Building a platform is
58
Alternative Dispute Resolution: Reports and Research, European Commission – European Commission
(2021), https://ec.europa.eu/info/alternative-dispute-resolution-reports_en (accessed 9 Jan. 2021).
different from building a house. A house may be considered old after a decade or
two, whereas a platform will be outdated in a very short period. Moreover,
building a platform is like nurturing and upbringing a child who needs proper
attention, care, and adequate budgeting for its growth and welfare. A platform
requires regular upgrades in terms of changing technology and market demands. It
has to be concerned about advances and appropriate concerns over malfunctions or
cyber aspects.
For long-term development and proper growth, consultation with a team of
experts and analysts is vehemently required for a setup to be sustainable and stable.
Regular strict inspection is also required to detect loopholes and lacunae that could
lead to future hindrances.
7.4 A NEED FOR RESEARCH AND SURVEY
As markets fluctuate, businesses require improvisation and adaptation to meet

people’s changing perceptions and to avoid indecision. There are various types
of indecision that occur due to lack of market research and improper survey. For
example, uncertainty in business decisions occurs when inaccurate information and
undetermined conclusions lead a company to miss out on an opportunity.
Although market research can help analyse and identify the different aspects of
solving these problems, many organizations hold off on conducting the research. It
can be difficult to consider the disadvantages and faults in an organization.
However, facing how a business can benefit from change is not a bad thing. It
allows a company to discover new opportunities with a new commitment to save
it from indecision.
Two modes of research are recommended: problem identification research
and problem-solving research.
7.4[a] Problem Identification Research
Conducting market research reveals chances to discover potential dilemmas and

opportunities that were never taken into consideration. Research engenders
awareness about positive influences that can lead to better strategies to reach and
fulfil consumers’ perceptions of the company.
Along with enhancing brand image, the understanding of market character-
istics and the market potential is estimated. This kind of research also reveals the
competition’s potential, capabilities and strength, which helps prepare appropriate
strategies.
7.4[b] Problem-Solving Research
Problem-solving research helps in marketing and segmenting to address the pro-

blems. To make a business the best in its market, one needs to use analysis to
discover problems and then solve them. Before solving, identifying problems is the
prerequisite. This research helps to capitalise on opportunities identified by the
company.
In 2001, Gabrielle Kaufmann-Kohler invited various stakeholders from the legal
and technical fields to a Geneva conference. She gathered numerous profiles,
including scholars, ODR platform developers, and Information Technology (I.T.)
engineers, aiming at a dialogue to find online solutions to settle disputes. A group
was subsequently constituted which meets annually in ODR fora to share experience
with peers – research information conducted, new technologies, standards, and
projects.59 Instead of reinventing the wheel, it is important to stay informed about
the progress made and take inspiration from current research solutions.
7.5 NEED FOR PROPER TECHNOLOGICAL ASSISTANCE
ODR is not only about the proper functioning of an online mechanism or way of
convenience but the outcome – justice—which is delivered through an online
medium. In this regard, no compromises or adjustments are acceptable. For
smooth and sound functioning of the online mechanism, a proper function of
online infrastructure with a secured and trusted platform is required to gain and
retain the public’s faith in ODR platforms.
The world regularly faces cyber threats and cyber attacks, sometimes anon-
ymously or by identified agents. Even the government websites of developed
countries often experience cyber attacks. Developing countries like India have
been facing a lack of Information and Communications Technology (ICT) infra-
structure and secured networks. Even after the formulation of ICT-related policies,
a need for proper implementation is required.
The ODR platform under the umbrella of ICT requires a team of technology
experts and computer engineers to build a quintessential platform that meets
people’s expectations and has no vulnerabilities, along with upskilling arbitrators,
counsel, and parties with understanding of technology. Neglecting these essentials
would result in delayed resolution delivery and affect the smoothness of the work,
reinforcing the need for user-friendly technology with technical assistance.
59
Mirèze Philippe, Equal Access to Information and Justice: A Report on the Online Dispute Resolution (ODR)
Forum 2017, 4 Int’l J. on Online Dispute Resolution (2017).
7.6 CENTRALIZATION AND STANDARDIZATION
The key to benefiting from the present information and technological revolution is
to remain abreast with the latest advances and adaptation of new methods. For a
better future with ODR, centralization and standardization of information about
ODR providers is very important to sustain, as it apprehends the right way to
choose a mechanism for a specific dispute. Along with that, it makes people aware
of its strategies and usages, enhances ease of access to information, and provides
ease of support in the development of parameters for understanding so that
potential users can come up with appropriate choices.
The centralization of information technology in ODR will be the key to the
feasibility and easy accessibility as it will provide interoperability between the
ODR provider and users, which results in a clear and simple framework. Lack of
interoperability can create a feeling of uncertainty regarding the platform’s effi-
ciency and increase privacy concerns, which would hinder the administration of
justice.
8 CONCLUSION
Online justice should be a priority for the present and the future. Seeking justice
before a court or out-of-court through an alternative online method is a right that
has been recognized at various international levels and needs to be followed
globally. Online justice through ODR demonstrates the wide ambit of conveni-
ence and opportunity for legal professionals, users, and the justice system where it
would help the courts to unburden from their caseloads.
However, ODR is an incipient mechanism that is still at a budding stage, the
reason being the past failure and challenges, often ignored, that has led to a lack in
the proper development and usage of ODR This article has recommended that to
build a better future with ODR for delivering justice, failures and challenges of the
past need to be recognized and examined, so we can learn from an existing
mechanism rather than continuing to experiment. Implementing a hybrid mechan-
ism for resolution is the way forward for ODR providers because the technology
should complement the product and not substitute it. The mechanism is only
productive when it has consumers’ trust, and mustering such trust should be a
priority, rather than implementation of decisions through technologies like artifi-
cial intelligence which is rather ahead of its time. The ODR provider’s reliability
on A.I.’s decision making should not be absolute; rather, it should be used to
complement the decision-making process with professional intervention. The
resolution mechanism’s priority would further enhance the use of such technolo-
gies, finding a suitable use in the process.
It is evident that during times of pandemic such as we have been experiencing,

ODR has proven to be a boon for resolving millions of pending disputes world-
wide in a rapid way, pointing towards a need to develop ODR legislation and a
prompt mechanism along with awareness among the masses to build confidence in
it. In a way, such a dispute resolution mechanism helps in realizing the dream of
justice, which otherwise can take years to become fulfilled. It also addresses the
issue of access to justice for various subsections of society from the convenience of
home in a reasonable time, increasing the efficiency of the conventional court/
judicial system, thus enhancing the right to justice for the public at large.
However, dependable internet access for certain segments of society remains a
major concern, and hence government incentives should go a long way in ensuring
the right to justice through the internet.
It will not be wrong to interpret that the way forward for the new judiciary
and justice era should proceed effectively through ODR However, there is a lot
that both ODR and the judiciary could adapt and implement from each other, and
grow together to strengthen the justice system so that it reaches all as a quintes-
sential right.
Application of Precedents in International
Arbitration
Pulkit DHAWAN*
In spite of the extensive development and use of arbitration, there is a lack of clarity on the
application of precedent in international arbitration. It has been commonly accepted that inter-
national arbitration has no system of legally binding precedent; yet arbitral awards refer to past
decisions, and lawyers still rely upon past decisions in support of their arguments. However, an
inconsistent set of decisions and incoherence in laws persists, as there is no binding precedential
value for an award. There has been an increase in demand for consistency and predictability in
arbitration decisions, in order to allow the development of law. Application of a binding doctrine
of precedent is often considered as a means to achieve this desired coherence and growth in
international arbitration. This article identifies the application of precedent in the current regime
and examines the need for a binding doctrine of precedent within the arbitration mechanism. By
understanding the present use of precedent along with its benefits and costs, it becomes possible to
evaluate whether the application of precedent is compatible with the arbitration mechanism. This
article also explores possible approaches to applying the binding doctrine of precedent in arbitra-
tion without hampering the basic tenets of the arbitration process.
Keywords: Precedent, Arbitration, Confidentiality, Publication, Development, Commercial Law,
Investment Law, Jurisprudence
1 INTRODUCTION
Arbitration has developed into an internationally accepted dispute resolution
mechanism in almost all fields of law. Currently, disputes arising in the field of
maritime law, sports law and investment law extensively rely on the use of
arbitration. Arbitration is considered as an instrument of dispute resolution using
a transnational approach, with an expectation that it will develop an international
practice and legal norm. Although the use of international arbitration has expo-
nentially grown, there is still a need for laws which are predominantly adjudicated
through this mechanism. There is still incoherence in international standards and
*
ACIArb; Indian qualified lawyer, enrolled with Bar Council of Maharashtra & Goa, India;
LL.M – Comparative and International Dispute Resolution, Queen Mary University of London
(QMUL). Practices in the field of maritime, commercial and trade law disputes at Bose & Mitra &
Co. Advocates, Mumbai.
Email: pulkitdhawan34@gmail.com.
Dhawan, Pulkit. ‘Application of Precedents in International Arbitration’. Arbitration: The Int’l J. of Arb.,
Med. & Dispute Mgmt 87, no. 4 (2021): 550–574.

PRECEDENTS IN INTERNATIONAL ARBITRATION 551
laws frequently decided upon by arbitrators.1 This lack of consistency and devel-
opment in law has often been attributed to the absence of a binding system of
precedent in international arbitration.2 However, there remains a lack of under-
standing of the application of precedent in international arbitration. This article
aims to provide clarity and answer questions on the application of precedent in
international arbitration.
This research is structured in the following manner. The first part provides an
understanding of the system and scope of precedent and its application in different
legal systems. In the second part I examine the use of precedent in past awards
rendered by arbitral tribunals in different fields. I identify the effect of such awards
on the development of jurisprudence in the fields of sports arbitration, investment
arbitration, and international commercial arbitration.
The third part discusses the need and purpose fulfilled by a binding system of
precedent. This part also analyses the drawbacks and costs likely to arise with the
implementation of a binding system of precedent in the arbitration mechanism.
The fourth part primarily explores possible approaches towards the application of a
binding system of precedent in the present arbitration regime. This part also looks
at the scope of confidentiality in arbitration and the need for publication of awards,
which is seen as one of the main obstacles to the implementation of the system of
precedent in arbitration. Finally, this research evaluates and explores the future of
the application of precedents in different fields of international arbitration.
2 UNDERSTANDING THE SYSTEM OF PRECEDENT

The ‘system of precedent’ or ‘doctrine of precedent’ may be described as a practice
of applying past decisions to the resolution of new disputes. The system of precedent
is rooted in the doctrine of stare decisis et non quieta movere, which means to abide by
the precedents and not to disturb settled points.3 Precedents have played a key role
in the development of law, and have been described as the lifeblood of legal
systems.4 However, this understanding of the principle of precedent is not applicable
and relevant to all aspects and forms of legal systems. Whilst the system of precedent
alongside the doctrine of stare decisis has always played a pivotal role in the English-
1
Pierre Mayer, Conflicting Decisions in International Commercial Arbitration, 4(2) J. Int’l Dispute Settlement
407, 419 (2013); Julian Arato, Chester Brown & Federico Ortino, Parsing and Managing Inconsistency in
ISDS, Academic Forum on ISDS Concept Paper 2020/1 2, 28 (21 Jan. 2020), https://www.jus.uio.
no/pluricourts/english/projects/leginvest/academic-forum/papers/2020/3-parsing.pdf (accessed 17
July 2020).
2
August Reinisch, Chapter VI: Investment Arbitration – The Role of Precedent in ICSID Arbitration, in
Austrian Arbitration Yearbook 2008 (Christian Klausegger et al. eds, Stämpfli Verlag AG, Bern 2008).
3
H. Campbell Black, The Principle of Stare Decisis 34(12) Am. L. Register (1852–1891) 745 (1886).
4
C. K. Allen, Law in the Making 243 (7th edn, Oxford University Press 1964).
based common law system, it has never been formally accepted by civil law
jurisdictions. Similarly, international dispute resolution systems which include deci-
sion-making bodies such as international arbitral tribunals and permanent interna-
tional courts have no direct allegiance to either common law or civil law systems.
They operate in an independent ecosystem within the terms and law of empowering
treaty or law constituting them. Hence, unless the empowering treaty or law has
adopted the system of precedent for dispute resolution, such bodies and their
decision-makers are not bound to follow the doctrine of precedent.
Although decision-makers in civil law jurisdictions are not bound by the
doctrine of precedent, there is still a noticeable use of past decisions in their
proceedings.5 Some civil law jurisdictions have adopted a modified form of pre-
cedent which, although not identical to the common law use, nonetheless embodies
the essence of the doctrine of stare decisis et non quieta movere. In Spain, for example, if
there are two decisions of the Tribunal Supremo enshrining a legal doctrine, then
that constitutes as a doctrina legal, that is, binding case law.6 Similarly, in France court
decisions become a source of law by repetition of similar decisions which are in
agreement on a single point of law.7 Thus, one can note that even in civil law
jurisdictions where there is no binding doctrine of precedent, adjudicators often
choose to adopt a decision of a superior court of a ‘presumptive binding character’
and apply it to the dispute before them.8 In the civil law tradition a decision of a
superior court is often considered to create a source of law closer to that of a statute,
thus making the judges ‘quasi-legislators’ who end up creating a stare decisis effect of
their decisions by imposing a ‘quasi-legal’ obligation on lower courts to follow
decisions of superior courts.9 Thus, even in the absence of a binding doctrine of
precedent, civil law jurisdictions have adopted an informal practice of referring to,
and relying on, past decisions. A similar approach can be observed in practice within
international arbitrations, which will be examined in detail in the further parts of this
research. However, to better understand the compatibility and application of a
system of precedent in international arbitration it is necessary to first briefly under-
stand the common law doctrine of precedent and its scope.
The doctrine of precedent as seen in the common law system today is not
something which was introduced by a single legal reform. Rather, it evolved
steadily over the centuries from a traditionalist approach in the late seventeenth
5
Maria A. Oliveira & Nuno Garoupa, Stare Decisis and Certiorari Arrive to Brazil: A Comparative Law and
Economics Approach, 26 Emory Int’l L. Rev. 555 (2012), https://scholarship.law.tamu.edu/facscholar/
534 (accessed 6 July 2020).
6
L. Neville Brown, The Sources of Spanish Civil Law, 5(3) Int’l & Comp. L. Q. 364, 366 (1953).
7
Edouard Lambert & Max J. Wasserman, The Case Method in Canada and the Possibilities of Its Adaptation
to the Civil Law, 39 Yale L.J. 14 (1929).
8
Klaus Peter Berger, The International Arbitrators’ Application of Precedents, 9(4) J. Int’l Arbitration 5, 9 (1992).
9
Ibid., at 10.
and eighteenth centuries to a more positivist approach in the nineteenth century. At

least up until the start of the nineteenth century the system of precedent and doctrine
of stare decisis did not imply any case to be strictly binding.10 Thus, any application of
a past decision had to be made only with a ‘reason’ elaborating the application of
principle embodied in the past decision. However, by the end of the nineteenth
century positivist thought led the change and there was a reduction in the grounds
on which a past decision could be considered inapplicable to a dispute. According to
this new approach, a past decision could only be considered non-binding if it was
based on misinterpretation of a statute, lack of knowledge of cases establishing the
doctrine, or a misunderstanding by the courts.11 Thus, in the common law system
the doctrine of precedent grew from having a ‘reason’ as its authoritative factor
towards a more positivist approach of considering decisions to be more or less precise
commands or rules created by positive acts.12 This influenced the general approach
towards precedents and made their application stricter.
2.1 TYPES OF PRECEDENTS
In common law, there is a strict and loose understanding of the doctrine of

precedent.13 In a legal system some decisions can be ‘strictly’ held to be binding
on courts, whereas a legal system may also simply have a practice of reporting past
decisions, citing these and probably following them.14 These types of precedent are
commonly termed as ‘binding precedents’ and ‘persuasive precedents’. International
arbitration does not follow a system of binding precedent, as there is no law which
binds any tribunal to past awards. However, it is important to analyse the possible
application of persuasive precedents within the arbitration mechanism.
2.2 PERSUASIVE PRECEDENTS
The use of persuasive precedents in common law and civil law jurisdictions can be
understood to be based on the rationale of the persuasive decision which is being
used. Even persuasive precedents are valid decisions in their own domain, not
overruled or classified as dead-letter.15 Even an inferior court’s decision can be
10
Richard H. Fallon Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence,
86 N.C. L. Rev. 1107, 1129 (2008).
11
Jim Evans, Change in the Doctrine of Precedent During the Nineteenth Century, in Precedent in Law 70
(Laurence Goldstein ed., Oxford, Clarendon Press 1987).
12
Ibid., at 71.
13
John Salmond & P. J. Fitzgerald, Salmond on Jurisprudence, 142 (12th edn, Sweet and Maxwell 1966).
14
Richard Bronaugh, Persuasive Precedent, in Precedent in Law 217 (Laurence Goldstein ed., Oxford,
Clarendon Press 1987).
15
Ibid., at 219.
considered a persuasive precedent until it is overruled. In a number of countries such

as the United States, Australia and Canada, courts of co-ordinate jurisdictions (i.e., of
separate provinces, territories, or states) confer only persuasive precedents on one
another. There is also a large interplay between common law countries, where a
court in one common law country when considering a novel case may rely on
relevant decisions from other common law countries.16
Thus, persuasive precedents can be seen to be very much a part of a system of
precedents, and any legal system which makes use of them in decision making is
relying on a system of precedents, albeit informally. However, such a system of
precedent is not completely similar to the one followed in the stricter common law
tradition, because it lacks the authoritative and binding nature present in the
common law doctrine of precedent.
Persuasive precedents can be used in a decision only for two purposes: the
adjudicator either has been convinced of the precedent’s accuracy or is distinguish-
ing the same. One can always simply ignore such persuasive decisions when their
accuracy is indistinguishable but seems unsound for the dispute at hand; however,
in such cases the need to provide a reason may arise if the past decision was referred
by one of the parties in their arguments. It is not unfair to understand that such
decisions, when not ignored, distinguished, or casually mentioned, must have
persuaded, that is, convinced the adjudicator. This is what leads to the under-
standing that binding precedents may be cited yet can be followed without
conviction, whereas persuasive precedents are cited and followed always and
only with conviction.17
With this understanding of precedents, we can examine the current arbitration
regime. I will identify the current application of persuasive precedents in arbitration,
and also check the compatibility of implementing a binding system of precedents in
the arbitration mechanism.
3 APPLICATION OF PAST DECISIONS IN INTERNATIONAL

ARBITRATION
Use of past awards is not uncommon in international arbitration. Past decisions on
similar issues are referenced by parties in their arguments and often used by the
tribunal to reason their decisions and to analyse the case at hand. Reliance on past
decisions is present in almost all fields of arbitration including sports, investment
and commercial arbitrations. However, the degree to which each of these systems
16
Kwai Hang Ng & Brynna Jacobson, How Global Is the Common Law? A Comparative Study of Asian
Common Law Systems – Hong Kong, Malaysia, and Singapore, 12(2) Asian J. Comp. L. 209, 218 (2017).
17
Bronaugh, supra n. 14, at 219.
refers and relies on past decisions differs. By examining the use of precedents in
each of these subject matter dispute areas, we can identify and understand how
reliance on past cases differs due to the field and laws of the arbitration.
3.1 USE OF PAST DECISIONS IN SPORTS ARBITRATION
The Court of Arbitration for Sport (CAS) has jurisdiction over disputes arising
from the Olympic games as well as international sporting federations that have
consented to its jurisdiction.18 CAS awards are noted to have extensive reliance on
past decisions; since 2003 almost every award adjudicated by CAS has at least one
reference to an earlier CAS decision.19 This has led to the foundation of the lex
sportive,20 which is sports jurisprudence developed through a series of CAS awards
providing interpretations of international sporting codes and regulations. The need
and reason behind the extensive use of precedents in CAS is often argued to be its
virtually exclusive appellate jurisdiction over disputes in sports and the consequent
decline in the availability of domestic jurisprudence and interpretations.21
One of the most important developments of law in sports jurisprudence has
been that of strict liability in cases of doping offences. This development occurred
through a series of arbitral awards,22 all taking a consistent approach of applying the
principle of strict liability in cases of doping offences. The principle of strict liability
is now an accepted interpretation of the World Anti-Doping Code, due to its
consistent presence in decisions and approaches in a series of awards.23 It is quite
evident through the readings of the awards which settled this issue that the
application of the principle of strict liability is possible mainly because the deci-
sion-makers without hesitation referenced, analysed and applied past CAS awards
rendered on the issue. Similar use of past awards has allowed CAS to settle issues of
interpretation and develop sporting codes and regulations, pertaining not only to
the Anti-Doping Code but also to parties’ right to be heard and general equitable
principles.24
18
Code of Sports-related Arbitration, R27.
19
Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse?-The 2006 Freshfields Lecture,
23(3) Arbitration Int’l 357, 365 (2007).
20
Ken Foster, Lex Sportiva and Lex Ludica: The Court of Arbitration for Sport’s Jurisprudence, 3(2)
Entertainment & Sports L. J. 2 (2005), http://doi.org/10.16997/eslj.112 (accessed 1 Aug. 2020).
21
Annie Bersagel, Is There a Stare Decisis Doctrine in the Court of Arbitration for Sport? An Analysis of
Published Awards for Anti-Doping Disputes in Track and Field, 12(2) Pepp. Disp. Resol. 189, 194 (2012).
22
G. v. International Equestrian Fed’n, CAS Award No. 91/53 (15 Jan.1992) followed by decisions in CAS
92/63 (10 Sept. 1992); CAS 94/129 (23 May 1995) CAS 95/141 (24 Apr. 1996).
23
World Anti-Doping Code comment to Art. 2.1.1.
24
Kohler, supra n. 19, at 366; USA Shooting & Quigley v. International Shooting Union (UIT), CAS 94/129
(23 May 1995) [58].
The extensive use of precedents in CAS has led academicians and practitioners
to affirm the existence of the doctrine of stare decisis in the sports arbitration regime.25
Whether the practice is stare decisis or jurisprudence constante is still a matter of open
debate.26 However, the consistent use of past decisions showcases the existence of an
informal system of precedent in the field of sports arbitration, similar to the system
seen in civil law jurisdictions.
3.2 USE OF PAST DECISIONS IN INVESTMENT ARBITRATIONS
Investment arbitrations are some of the most critical disputes decided by arbitrators.
That is due not only to the involvement of sovereign states as parties, but also to
the disputes’ link to public international law.27 One of the main issues faced by
arbitrators in investment arbitration is the indeterminacy of the rules and principles
involved in the dispute.28 It has been commonly accepted by arbitrators that the
investment dispute settlement mechanism is not bound by precedent,29 yet awards
often include substantial reference to past decisions. Arbitrators are often led to
refer to past decisions when there is a need to determine an issue which is not
guided by any formal authority or governing laws. An increased reference to past
decisions can be observed when tribunals have to interpret terminology or deter-
mine a violation of the investment protection standards forming part of an invest-
ment agreement.
One of the most common and consistent uses of past decisions in this field can
be seen when a tribunal is required to identify ‘investment’ or resolve the issue of
ratione materiae in a dispute. Most bilateral investment treaties (BITs) and institu-
tions such as the International Centre for Settlement of Investment Disputes
(ICSID) fail to provide a definition of the term ‘investment’. Thus, tribunals
interpret the word based on other available authorities, including past awards. In
this regard, the decision of the tribunal in Salini Costruttori S.p.A. and Italstrade S.p.
A. v. Kingdom of Morocco30 has been considered highly valuable and referenced by a
number of investment tribunals. Salini was an ICSID case, and since ICSID fails to
define ‘investment’, the tribunal in the case analysed and interpreted the term and
defined it. They laid out a test, commonly referred to as the Salini test, and defined
the term ‘investment’ to have four elements, namely contribution of money or
25
Bersagel, supra n. 21, at 201, 203.
26
Ibid., at 195.
27
Eric De Brabandere, Investment Treaty Arbitration as Public International Law: Procedural Aspects and
Implications 17 (Cambridge University Press 2014).
28
Reinisch, supra n. 2, at 495.
29
Gas Natural SDG, SA v. The Argentine Republic, ICSID Case No. ARB/03/10, Decision on
Jurisdiction (17 June 2005) [52].
30
ICSID Case No. ARB/00/4, Decision on Jurisdiction (23 July 2001).
assets, contribution to the economic development of the host state, certain dura-
tion, and an element of risk. This decision, which is now considered a basic test to
determine the meaning of ‘investment’, has been followed by numerous tribunals
(e.g., Joy Mining Machinery v. The Arab Republic of Egypt31 and Jan de Nul N.V. and
Dredging International N.V. v. Arab Republic of Egypt32). Even non-ICSID tribunals,
in cases such as Mytilineos Holdings SA v. The State Union of Serbia & Montenegro and
Republic of Serbia,33 have followed the Salini test.
The Salini award gave a natural meaning to the term investment, and hence
investment tribunals often consider the Salini decision for interpretation and allow
it to have a persuasive effect on their dispute. Thus, through consistent use of the
Salini test in a significant number of awards, it has become a part of international
investment jurisprudence.34
Another vague principle which has been used by investment tribunals through
the use of past decisions is the doctrine of ‘abuse of rights’. Abuse of rights is an age-
old principle of international law. As investment treaty arbitrations are founded upon
principles of public international law,35 the doctrine of abuse of right also has a
significant influence in investment arbitrations, but it is not commonly found defined
in an investment treaty. However, it is quite commonly used by states as a defence
against an investment treaty violation claim. Since investment treaties or laws do not
provide any clarity on this principle, tribunals often end up relying on past invest-
ment awards as well as decisions of the International Court of Justice (ICJ) to
understand the meaning and scope of its application in investment treaty cases.
Philip Morris v. Commonwealth of Australia36 is one of the important decisions in
investment arbitration which has dealt with the issue of abuse of rights. In the Philip
Morris award, there is extensive reliance on past decisions such as Phoenix Action Ltd. v.
The Czech Republic,37 Mobil Corporation v. Venezuela,38 Pac Rim v. El Salvador,39
Gremcitel v. Peru,40 Lao Holdings v. Laos41 and Tidewater v. Venezuela.42 The tribunal
has even stated in its award that:
31
ICSID Case No. ARB/03/11 Award on Jurisdiction (6 Aug. 2004).
32
ICSID Case No. ARB/04/13, Decision on Jurisdiction (16 June 2006) [91].
33
UNCITRAL, Partial Award on Jurisdiction (8 Sept. 2006) [114].
34
Andrés Rigo Sureda, Precedent in Investment Treaty Arbitration, in International Investment Law for the 21st
Century: Essays in Honour of Christoph Schreuer 841 (Christina Binder et al. eds, Oxford University Press
2009).
35
Brabandere, supra n. 27.
36
PCA Case No. 2012–12, Award on Jurisdiction and Admissibility (17 Dec. 2015).
37
ICSID Case No. ARB/06/5, Award (15 Apr. 2009), [135]-[145].
38
ICSID Case No. ARB/07/27, Decision on Jurisdiction (10 June 2010).
39
ICSID Case No. ARB/09/12, Decision On The Respondent’s Jurisdictional Objections (1 June
2012) [2.17].
40
ICSID Case No. ARB/11/17, Award (9 Jan. 2015) [180].
41
ICSID Case No. ARB(AF)/12/6, Decision on Jurisdiction (21 Feb. 2014).
42
ICSID Case No. ARB/10/5, Decision on Jurisdiction (8 Feb. 2013).
the present case is by no means the first investment arbitration in which it is disputed
whether a BIT claim brought shortly after restructuring is admissible. Therefore, the
Tribunal considers that it is appropriate to review the relevant case law on this point.43
All the awards relied upon by the Philip Morris tribunal have collectively built
investment treaty arbitration’s jurisprudence on the application of the principle of
abuse of right. In addition to the cases discussed above, the practice of relying on past
awards is quite common on issues of the fair and equitable treatment standard, the
full protection and security standard, and in umbrella clauses. Investment tribunals
even tend to rely on decisions of other international courts and decisions,44 due to
the close links of investment treaty arbitration with public international law.
Indeed, the use of past awards in investment arbitration is becoming a
common practice. Although tribunals have been rejecting the applicability of
binding precedent in the nature of stare decisis, they nonetheless analyse and
compare past awards to their decisions and reasoning.45 This has led to increased
predictability and consistency which has been supporting the development of
jurisprudence constante in investment arbitration.46
3.3 USE OF PAST DECISIONS IN INTERNATIONAL COMMERCIAL ARBITRATION
Unlike investment arbitrations, international commercial arbitrations (ICAs) gen-

erally do not involve states as parties. ICA disputes are commonly between private
companies arising out of an international commercial transaction. Thus, being a
private dispute resolution mechanism, the decisions are often kept confidential.47
However, this has not prevented arbitrators from citing and analysing published or
accessible awards,48 although in comparison with investment arbitration the reli-
ance on past decisions is comparatively lower in ICA. In commercial arbitration
there is a substantial use of national laws49; this may be because, unlike investment
arbitration, the subject matter of commercial transactions is governed and regulated
by the domestic laws of the contracting parties. On a survey of International
Chamber of Commerce (ICC) awards, it was identified that only 15% of the
43
Philip Morris, supra n. 36, at 167.
44
See PCIJ decision on reparation in Case Concerning the Factory at Chorzów (Germany v Poland) (Claim for
Indemnity) (Merits) [1928] PCIJ Rep Series A No 17 has been endorsed by Biwater Gauff (Tanzania)
Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (24 July 2008) [776]-[777].
45
Gas Natural, supra n. 29; Philip Morris, supra n. 36, at 167.
46
Sureda, supra n. 34, at 842.
47
Gilbert Guillaume, The Use of Precedent by International Judge and Arbitrators, 2(1) J. Int’l Dispute
Settlement 5, 15 (2011).
48
W. Mark & C. Weidemaier, Toward a Theory of Precedent in Arbitration, 51 Wm. & Mary L. Rev. 1895,
1909 (2010).
49
Christopher R. Drahozal, Contracting Out of National Law: An Empirical Look at the New Law Merchant,
80 Notre Dame L. Rev. 523, 551 (2005).
190 awards studied had cited past decisions, and such use is primarily for jurisdic-
tional or procedural matters to determine the governing laws for the dispute.50
In ICA most of the past decisions referred are in relation to governing
substantive laws, commonly national laws. Since ICA attracts national laws such
as contract law, property law, company law and foreign exchange regulations,
jurisprudence developed on these laws by national courts is relied upon. Tribunals
can be compelled to refer to past arbitral decisions only when determining an issue
arising out of the application and interpretation of international commercial sub-
stantive laws. Disputes arising on the application of the United Nations
Convention on Contracts for the International Sale of Goods (CISG), lex mercatoria
or Incoterm rules forming part of the international commercial contract are more
likely to be arbitrated, and thus interpretations rely on a more developed but
confidential set of arbitral decisions rather than on domestic court decisions. The
law and interpretation involving CISG and Incoterms along with arbitration rules
have mostly developed using awards which have analysed and clarified CISG’s
application in commercial contracts and disputes arising out of it.51 Arbitrators
often refer to past awards to resolve questions on arbitration procedure52 or issues
of substantive law which fall outside the domain of national courts. Even Jan
Paulsson has observed that arbitrators largely refer to past awards while dealing
with issues pertaining to the choice of law rules.53
Overall, there is no evidence to suggest any reluctance among arbitrators to
reference or cite past awards. However, it can be noted that in international
commercial arbitration the use of precedent is limited. This could be attributed
not only to the confidential nature of the process but also to the strong involve-
ment of national substantive laws.
3.3[a] Overall Practice
The above analysis of various fields of arbitration concerning their reliance on past
awards showcases the existence of an informal system of precedent within the
arbitration regime. It is evident that reference and use of past awards by arbitrators
are much higher in sports arbitration and investment arbitration when compared to
50
Kohler, supra n. 19, at 362.
51
Weidemaier, supra n. 48, at 1931.
52
Stacie I. Strong, Research in International Commercial Arbitration: Special Skills, Special Sources, 20 Am.
Rev. Int’l Arb. 119, 140–146 (2009).
53
Kohler, supra n. 19, at 363 refers Jan Paulsson, La Lex Mercatoria dans l’arbitrage CCI, 55 Rev.Arb. 80
(1990).
international commercial arbitration. International commercial arbitration, due to

lack of transparency and its dependence on national substantive laws, has a weaker
system of precedent. Irrespective of that, however, no field of arbitration can be
seen to simply disregard past awards, and arbitrators have accepted that past awards
do hold some persuasive value.54
The extent to which a field of arbitration relies on past awards is dependent on
a number of factors, which include not only the confidentiality within the regime
but also the need to rely on past awards. In sports and investment arbitration, the
body of substantive law governing the dispute is highly delocalized and hence not
under development by domestic courts. Thus, arbitrators have been trying to build
relevant jurisprudence in those fields through a set of consistent decisions. Thus, as
per the understanding developed in the first part of this research, we can observe
that there is a de facto system of precedent within the arbitration mechanism which
differs from the use of precedent in the common law system. The system of
precedent within the arbitration regime is quite informal, as the awards hold
only persuasive value and no legally binding effect.
4 BENEFITS AND COSTS OF IMPLEMENTING A BINDING SYSTEM

OF PRECEDENT
4.1 NEED FOR APPLICATION OF PRECEDENT
While we explore the present application and compatibility of the system of

precedents in international arbitrations, it is also important to understand the
need for such a system in arbitration. It can be observed from the previous parts
of this research that, due to consistent use of precedents, there has been a
substantial increase in jurisprudence, consistency and predictability within the
field of sports and investment arbitration. Presently one of the main issues restrict-
ing the development and evolution of the arbitration regime generally is lack of
predictability and coherence in arbitral decisions.55 Principles and standards of
international investment and commercial laws are vague and left undefined, thus
often leading tribunals towards inconsistent decisions.
54
Gas Natural, supra n. 29; IAAF v. USA Track & Field and Jerome Young, CAS 2004/A/628 (28 June
2004) [19].
55
Arato, supra n. 1, at 28.
4.1[a] Predictability and Consistency
Consistency and predictability are the two most important elements of law.56 It has also
rightly been stated by Prof. Gabrielle Kaufmann-Kohler that ‘a rule of law is only a rule
of law if it is consistently applied so as to be predictable’.57 Systems of precedents, be it
through the doctrines of stare decisis or jurisprudence constante, have brought consistency
and predictability to decisions in both common law and civil law jurisdictions. It is
important to understand that the role of arbitrators is more that of a rule creator,
especially when deciding a dispute with a less developed body of rules such as interna-
tional investment standards.58 While fulfilling the role of rule creator, the decision-
maker may look for authority in the form of domestic and international law to guide the
decision and approach in the formation of the rule. In cases of commercial law,
arbitrators often find some form of national legislation or domestic court judgment.
Even if not binding, such precedents provide a strong persuasive backing to rule
creation, and thus give a form of consistency and predictability to the decision.
However, when concerned with an issue of interpretation of an international instrument
or standard, the decision-maker in most cases has nothing other than past awards as
reference. Without any legally binding force on them to rely on those past awards, such
references can easily be ignored by the decision-maker. This makes the decision highly
unpredictable and prone to inconsistency. Such an inconsistent practice not only affects
the parties to the dispute, but also hampers the development of law, thus causing a loss of
confidence by society in the decision-making system.59
4.1[b] Development of Law

The field of sports arbitration has been able to evolve and develop primarily due to
its consistent reliance on past decisions. As shown in Part II(1) above, this
showcases how lex sportive has been able to develop itself and provide clarity in
the application of legal principles such as strict liability. There is a further need for
the development of law through precedents in the field of sports law. This need
primarily exists because the power of national courts to adjudicate has been ousted
through sporting rules and regulations.60 The CAS acts as the appellate body for
any dispute arising out of major sports organizations and international sporting
regulations such as those concerning anti-doping. A binding system of precedent
would allow this development to continue, because current reliance on case law by
56
Lon L. Fuller, The Morality of Law 38–39 (Rev. edn, Yale University Press 1969) .
57
58
Ibid., at 375.
59
Arato, supra n. 1, at 5.
60
Bersagel, supra n. 21.
an arbitrator is voluntary. On failure of an arbitrator to rely on similar consistent set

decisions there is nothing the parties would be able to do, other than try to prove
the award to be arbitrarily illegal, which is not an easy challenge.
Need for development is also much required in the field of international
investment law and its standards of investment protection.61 Unlike international
commercial law, international investment law is more delocalized62 and often has
only a minor connection with the national laws of the parties. The use of national
law in investment arbitration is mostly limited to answering questions of fact to
determine a violation of standards of protection.63 From the previous part of this
research it can be observed that reliance on past decisions has allowed investment
arbitration to attain a degree of coherence and consistency in the application and
interpretation of its laws. Thus, through consistent use of case precedents, there
can be significant development of investment law jurisprudence, including the
development of its standards.
Another consequence of incoherence in investment awards is the radical
changes made by states in their investment treaty obligations.64 Currently there
exists an unsettled understanding of the application of various treatment and
investment protection standards – for example, the most favoured nation (MFN)
clause, where there are two inconsistent sets of decisions. One set is led by Emilio
Agustín Maffezini v. The Kingdom of Spain,65 which allows import of even proce-
dural clauses such as dispute settlement provisions into the ambit of MFN treat-
ment. The other set is led by Plama Consortium Ltd. V. Bulgaria,66 which ruled that
only substantive provisions could be imported using the MFN clause. Due to this
uncertainty in the application of the law, a number of states have explicitly
excluded MFN treatment from dispute settlement. The Comprehensive
Economic and Trade Agreement (CETA), one of the recent international invest-
ment agreements to be signed, has included a proviso in its MFN clause which
states as follows:
8.4. For greater certainty, the ‘treatment’ referred to in paragraphs 1 and 2 does not
include procedures for the resolution of investment disputes between investors and states
provided for in other international investment treaties and other trade agreements … … .
61
UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), ‘Submission from the
European Union and its Member States’ New York (1–5 Apr. 2019) UN DOC NO. A/CN.9/WG.
III/WP.159/Add.1, 9.
62
Peter Muchlinski, Corporations and the Uses of Law: International Investment: Arbitration as a ‘Multilateral
Legal Order’, 1(4) Oñati Socio-Legal Series 8 (2011), http://opo.iisj.net/index.php/osls/article/
viewFile/61/211 (accessed 7 Aug. 2020).
63
J. Hepburn, Domestic Law in International Investment Arbitration (Oxford University Press 2017).
64
Yoram Z. Haftel & Alexander Thompson, When do States Renegotiate Investment Agreements? The Impact
of Arbitration, 13 Rev Int Organ 25, 43–44 (2018).
65
ICSID Case No. ARB/97/7, Decision of the Tribunal on Objection to Jurisdiction (25 Jan. 2000) [56].
66
ICSID Case No. ARB/03/24, Decision on Jurisdiction (8 Feb. 2005) [227].
Some model investment treaties, such as that of India, have completely excluded the
MFN clause from their drafts.67 Hence, a binding system of precedent in investment
treaty arbitration is much needed to promote stability in the system through consistent
and predictable decisions, further allowing states to enter into international investment
treaties without uncertainty and fear of unfair interpretation of standards of investment
protection.
It is often argued by academicians that, due to the rise in arbitrations of
commercial disputes, there is a decline in the growth of commercial law
jurisprudence.68 Increased use of arbitration is said to have prevented courts
from developing laws involved in the application of new types of contracts and
newer kinds of claims which arise due to new contract practices and commercial
practices.69 Common law jurisdictions have relied on court decisions to develop
legal doctrines and principles. These doctrines are strongly relied upon by other
courts within their jurisdictions as well as in other common law countries.
Common law jurisprudence is also looked upon by other legal systems for contract
interpretations and shared legal principles in international commercial law.70 There
is a concern amongst many that arbitral awards lacking any binding force may put
an end to the evolution of commercial legal doctrines and principles. Although
these concerns are not backed by any substantial evidence demonstrating that there
is an actual threat to the evolution of commercial law due to the current arbitration
regime, it is true that a noticeable rise in commercial arbitration disputes coexists
with a decline in commercial litigation in national courts.71 Additionally, the laws
dealing with arbitration procedures and matters of jurisdiction are often dealt with
only by arbitrators, and hence there are not many domestic decisions available on
these matters. A binding system of precedent in commercial arbitration might help
develop jurisprudence involving transnational commercial laws and other laws
which have been excluded from the domain of national courts.
Lack of consistency and predictability in the present arbitration mechanism is
the leading reason to introduce a system of precedent. But there is more: a system
67
Model Text for the Indian Bilateral Investment Treaty, 2015.
68
V. K. Rajah, W(h)ither Adversarial Commercial Dispute Resolution?, 33 Arbitration Int’l 17 (2017); Stefan
Pislevik, Precedent and Development of Law: Is it Time for Greater Transparency in International Commercial
Arbitration?, 34 Arbitration Int’l 241 (2018).
69
Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales, ‘Developing commercial law
through the courts: Rebalancing the relationship between the courts and arbitration’ (Bailii Lecture:
Developing Commercial Law through the Courts: Rebalancing the Relationship between the Courts
and Arbitration, 9 Mar. 2016), www.judiciary.gov.uk/wp-content/uploads/2016/03/lcj-speech-
bailli-lecture-20160309.pdf (accessed 5 Aug. 2020).
70
Jacobson, supra n. 16.
71
Judiciary of England and Wales, Business and Property Courts The Commercial Court Report 2018–2019,
10, https://www.judiciary.uk/wp-content/uploads/2020/02/6.6318_Commercial-Courts-Annual-
Report_WEB1.pdf (accessed 7 Aug. 2020).
of precedent would also bring a holistic change to the regime, as it would promote
more transparency in decisions through well-reasoned awards, thus reducing the
risk of impartiality when it comes to interpretation and application of abstract
standards in international law.
4.2 COST OF HAVING A BINDING SYSTEM OF PRECEDENT IN ARBITRATION
Incorporating a system of precedent may seem to be highly beneficial for the devel-
opment of substantive law and to bring consistency and predictability into arbitrations.
However, introducing the principles of a legally binding system of precedent into the
present arbitration regime would affect almost all its features, from confidentiality to
party autonomy. Thus, it is necessary to examine and understand the actual cost of
implementing such a system of precedent to international arbitrations and whether the
same is possible without affecting the basic tenets of the system.
4.2[a] Value of Inconsistency and Discretion
Although inconsistent decisions in the present regime have led to doubts over the
legitimacy of the system,72 they have at the same time allowed the arbitration
community to remain vigilant. Debates triggered by inconsistent decisions have
contributed towards the development and refinement of the law.73 However,
constant reliance and use of precedent also poses a risk of freezing the law, thus
preventing its progress to meet the needs of the everchanging society.74
International arbitration deals with a number of national and international laws
and principles. These laws cannot provide a solution to every possible scenario and
issue of the dispute. This is where discretion plays an important role and also allows
for effective case management.75 When a decision-maker is legally bound to follow
a past award or decision, the discretion which he or she holds is considerably
reduced. Although such a limit on the use of discretion is beneficial to strengthen
the legitimacy and predictability of the system and reduce arbitrary decisions, it
could restrict the capability of a tribunal to deal with a unique issue in an effective
manner, especially when dealing with ever-evolving commercial contracts.
72
Patrick M. Norton, The Role of Precedent in the Development of International Investment Law, 33 ICSID
Rev. 280, 291 (2018).
73
Irene M. Ten Cate, The Costs of Consistency: Precedent in Investment Treaty Arbitration, 51 Colum. J.
Transnat’l L. 418, 471 (2013).
74
Guillaume, supra n. 47, at 6.
75
Inna Uchkunova, Arbitral, Not Arbitrary – Part I: Limits to Arbitral Discretion in ICSID Arbitration
(Kluwer Arbitration Blog 29 Jan. 2013), http://arbitrationblog.kluwerarbitration.com/2013/01/29/
arbitral-not-arbitrary-part-i-limits-to-arbitral-discretion-in-icsid-arbitration/?doing_wp_cron=
1595582426.6622729301452636718750 (accessed 2 Aug. 2020).
In any event, the present arbitration framework does not provide unrestricted
discretion to arbitrators, as the arbitration rules allow application of discretion only
to fill gaps.76 Similarly, in commercial arbitrations the application of implied and
inherent power of the tribunal has remained limited in scope to filling the gap in
the law and enabling delivery of an enforceable award.77 Hence, it is conceivable
that putting an additional constraint by means of precedent could do more harm
than good to the existing system.
4.2[b] Risk of Inaccuracy
Consistent use of past decisions would surely lead to consistency in the law, but it
is also important to maintain accuracy in the decisions being rendered. A
decision-maker cannot simply rely on a past award for the sake of maintaining
consistency, as such an approach may lead to an inaccurate award. Arbitrators
often have to deal with intricate terms of contracts or a treaty while making their
decision, and generally such documents are unique in every dispute and its terms
are to be interpreted harmoniously with other terms of the commercial under-
taking between the parties.78 Hence, applying a decision which was based on a
separate contract or a treaty may lead to a consistent decision on the law, but may
not always be accurate regarding the dispute in hand. Furthermore, errors
committed by a judge can be reviewed through appeal; an arbitral award cannot
be appealed, but only reviewed following proof of manifest illegality.79
4.2[c] Risk of Acting Ultra Vires
An arbitral tribunal constituted by the parties is entrusted with a limited role to

adjudicate the dispute. Extending the tribunal’s role towards rulemaking could be
considered outside the scope of its appointment and beyond the party’s agreement
which limits the arbitrator’s involvement in the resolution of the dispute. In
76
Washington Convention on the Settlement of Investment Disputes Between States and Nationals of
Other States (‘ICSID Convention’), Art. 44.
77
Margaret L. Moses, Inherent and Implied Powers of Arbitrators, Research Paper No. 2014–015 Loyola
University Chicago School of Law (2014), http://dx.doi.org/10.2139/ssrn.2501046 (accessed 3 Aug.
2020).
78
Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines, ICSID Case No. ARB/03/
25, Award (23 July 2007), (Dissenting Opinion) 4/24 [7].
79
Guilherme Rizzo Amaral, Judicial Precedent and Arbitration – are Arbitrators Bound by Judicial Precedent? A
Comparative Study Among England, Scotland, the United States and Brazil, 56(17) Revista Brasileira de
Arbitragem 49, 5–6 (2017).
investment treaty arbitrations, such a rulemaking role would also be in conflict

with the sovereign state’s formulation of its own treaty obligations.80 While
making a decision, the arbitral tribunal should be concerned only with applying
the available law which best suits the facts and nature of the dispute. Any obliga-
tion to stick with a previous award in order to maintain consistency or to develop
law could be considered outside the governing laws agreed by the parties, espe-
cially regarding commercial contracts.81
4.2[d] Loss of Confidentiality
In order to follow the path of decision laid down by previous awards, it is also
important for the awards to be accessible to the whole community. This poses a
risk to the confidential nature of the arbitration mechanism, which is quite pivotal
especially for private companies choosing arbitration as a mechanism.82 Use of past
decisions by arbitrators would put private awards into scrutiny and also risk
disclosure of confidential business dealings between two entities. Hence, unless a
system could be derived to use past awards without hampering the confidentiality
of the arbitration process, loss of confidentiality would destroy the most valuable
benefit of the arbitration mechanism.83
4.2[e] Risk of Disturbing the Status Quo

All the aspects discussed above suggest that imposing a strict form of the system of
precedent would reshape the whole arbitration regime. Such a drastic change could
end up evolving the arbitration mechanism in the long run and further extending its
acceptability by society. However, the change would come at the cost of shaking up
a regime which over the years has been tried and tested to be a reliable and
enforceable mechanism in a number of jurisdictions. Thus, if a legally binding system
of precedent is introduced into international arbitrations, it would incur a risk of
disrupting a presently reliable and internationally accepted mechanism.
5 IMPLEMENTATION OF A BINDING SYSTEM OF PRECEDENT

Based on the above analysis it can be observed that implementing a legally binding
system of precedent in international arbitration would be a challenging task. The
80
Norton, supra n. 72, at 289.
81
Giuditta Cordero-Moss, International Commercial Contracts 278 (CUP 2014).
82
Leon E. Trakman, Confidentiality in International Commercial Arbitration, 18(1) Arbitration Int’l 1, 5
(2002).
83
The issue of lack of transparency is further analysed in Part IV of this research.
change would have to be systematic and based on consideration of various key factors
such as confidentiality, which remains closely linked to the arbitration mechanism.
5.1 CHANGES IN RULES AND LAWS FOR IMPLEMENTATION OF A SYSTEM OF

PRECEDENT
Arbitration rules, national laws or international conventions do not presently bind

arbitrators to make a decision based on a past award. Currently, international
arbitration operates in a very diversified setting; except for the New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1958, there is no single law which has its uniform applicability on all fields and
types of arbitration. If a formal system of precedent is to be introduced into the
present arbitration regime, it could be most effectively implemented through
amending domestic and institutional arbitration rules and laws.84 This research
had led me to believe that a binding system of precedent could operate through
two possible approaches within the arbitration mechanism.
In the first approach, awards gain precedential value across the regime. This
would mean that once an award is rendered, it becomes an applicable precedent in
multiple institutions, irrespective of the institution administering the award. In the
second approach, the application of precedent would be limited to individual
institutions and cases administered by them. The two possible settings are
explained further below in Figure 1 (Common System of Precedent) and Figure
2 (Independent System of Precedent).
5.1[a] Application of a Single System of Precedent Throughout the Regime
Figure 1
ICC SCC
System of
Precedent
SIAC LCIA
84
Amaral, supra n. 79, at 5 (if a given system recognizes precedents as law, so must the arbitrator).
If a system of precedent is implemented to have its application on multiple

institutions, it would first require all the institutional rules to be amended with a
similar rule which recognizes the same system of precedent. The rule would thus
recognize and give value to decisions rendered by all tribunals irrespective of the
institution administering the arbitration. Such a setting would mean that a case
administered by, say, the London Court of International Arbitration (LCIA) would
be recognized by a tribunal set up, say, under ICC arbitration rules. Furthermore, a
decision by LCIA would be then given a formal precedential value by an ICC
tribunal. A clause of similar nature could be supplemented into The United
Nations Commission on International Trade Law (UNCITRAL) arbitration
rules and model arbitration laws and be adopted by national arbitration laws to
enable implementation of a similar system of precedent for arbitrations governed
by those laws. Another way to implement this approach is recognising the use of
past awards in the arbitration agreement, thus allowing the system of precedent
even in ad hoc arbitrations.
This proposed setting would definitely mean the implementation of a formal
system of precedent throughout the arbitration ecosystem. This requires a high
degree of consultation and cooperation among all the stakeholders. The most
important aspect for the implementation of such an approach would be a consistent
change in all the laws and rules governing international arbitration, which could
take decades of negotiation and implementation, especially in international com-
mercial arbitration. This system is much more feasible for sports arbitration and
investment arbitration, as the number of institutions involved in those areas is
minimal and identifiable.
5.1[b] Application of an Independent System of Precedent within Each Institution

Figure 2
System of System of System of

Precedent Precedent Precedent
ICC ICSID LCIA

Another approach is that the system of precedent could be individually

incorporated into the rules of institutions. This would allow the cases administered
by an institution to gain precedential value over future cases of that institution
only. Thus, a case administered by ICC would create a consistent approach for
future disputes governed by ICC. Thus, under this approach development of law
would take place independently under every institution. This approach would
definitely increase the importance of selecting a favourable institution while draft-
ing the arbitration agreement. Contracting parties would be more inclined towards
an institution which would have developed a favourable interpretation of the laws
involved in the subject matter of the contract.
One major advantage of this approach is its independence from other institu-
tions and laws. To implement this approach the only major change required would
be an amendment to the rules of the institution which intends to introduce the
system of precedent. However, this independence also makes this system a bit
weak, as institutions could end up with a different inconsistent decision on a single
law, thus not contributing towards holistic development of the law. This approach
also seems difficult to implement in ad hoc arbitrations, as parties would have to
mutually reach a consensus on which institution or jurisdiction’s decisions should
be applicable to their dispute.
Nevertheless, amongst the two proposed approaches, the second could be more
quickly implemented as it only requires institutions to amend their rules. Furthermore,
such an approach, although in an informal manner, is already in existence within the
sports and investment arbitration regimes.85 This independent approach could initiate a
more connected and interlinked system, in which more than one institution share their
precedents and collectively develop the law, thus even achieving the first approach of
the collective application of precedent throughout the regime.
5.2 TRUE SCOPE OF CONFIDENTIALITY AND PUBLICATION OF AWARDS
Implementing the system of precedent would most importantly require decision-

makers to have access to past awards. Unlike national legal systems, there is no
mechanism to maintain reports nor is there a unified award database in interna-
tional arbitration. Publication of national court judgments has provided the
public with the ability to access court case decisions, allowing transparency and
developing the system of precedent.86 However, in arbitration confidentiality has
85
Evident from the cases discussed in Part II of this research; Reinsich, supra n. 2, at 510.
86
Lord Justice Brooke, Publishing the Courts: Judgments and Public Information on the Internet
(Commonwealth Law Conference, Melbourne Apr. 2003), https://www.iclr.co.uk/blog/archive/
publishing-the-courts-judgments-and-public-information-on-the-internet-lord-justice-brooke-2003/
(accessed 2 Aug. 2020).
been one of its most important features allowing its widespread acceptability in
commerce.87
Furthermore, international arbitration is undertaken independently by multi-
ple institutions and ad hoc tribunals, and thus maintaining a single unified record of
even the number of cases may seem practically impossible. This independence and
disassociation from any regulatory body have also been a reason for the success of
arbitration as a dispute resolution mechanism, as it allows the mechanism to be
easy, confidential and accessible to the parties. Considering these aspects, imple-
menting a formal system of precedent in arbitration seems impossible due to the
strong presence in arbitration of confidentiality and transparency of the process.
However, it is necessary to look more closely into the features of confidentiality
and transparency of the current arbitration regime. More particularly, there is a
need to examine whether providing public access to awards information would in
any way damage the privacy of the arbitration process.
There is an inaccurate presumption amongst some parties that total blanket
confidentiality is necessary for the privacy of proceedings.88 Certain elements of an
arbitration proceeding such as awards, decisions on admissibility of evidence, and
procedure adopted are not essential to preserve the privacy of proceedings.
However, elements such as key documents, monetary sums involved, confidential
factual arguments, and things of similar nature can be kept private. Understanding
and maintaining such distinctions are essential in order to evolve and expand the
arbitration process to a more transparent mechanism from the present private and
opaque decision-making process.89
Currently, confidentiality in arbitrations is governed by no single approach, but is
decided by the agreement and the understanding of parties on the degree of con-
fidentiality they wish to maintain.90 With reference to confidentiality norms in
institutions rules and national laws, I cannot find any single uniform approach
restricting publication of awards or barring transparency of the process. A number of
national laws have no reference to confidentiality in arbitrations; this may be primarily
87
Trakman, supra n. 82.
88
Michael Young, Confidentiality in International Arbitration: Does the Exception Prove the Rule? Where Now
for the Implied Duty of Confidentiality Under English lLw? 27 ASA Bull. 26, 28 (2009).
89
Chief Justice Sundaresh Menon, International Arbitration: The Coming of a New Age for Asia (and
Elsewhere), (Paper presented at the Joint Plenary Opening Session A1 International Council for
Commercial Arbitration, Singapore 11 June 2012) 17, www.arbitration-icca.org/media/0/
13398435632250/ags_opening_speech_icca_congress_2012.pdf (accessed 1 Aug. 2020).
90
Mayank Samuel, Confidentiality in International Commercial Arbitration: Bedrock or Window-Dressing?
(Kluwer Arbitration Blog 21 Feb. 2017), http://arbitrationblog.kluwerarbitration.com/2017/02/21/
confidentiality-international-commercial-arbitration-bedrock-window-dressing/?doing_wp_cron=
1596033845.0586500167846679687500#:~:text=Parties%20have%20the%20autonomy%20to,parties
%20and%20witnesses%20in%20US.&text=The%20ICC%20per%20se%20do,unless%20requested%
20by%20the%20party (accessed 2 Aug. 2020).
because the UNCITRAL Model Law does not have provision on confidentiality.91
Even the ICC Arbitration Rules and the International Dispute Resolution Procedures
(ICDR) of the American Arbitration Association, along with many other institutions,
do not impose any confidentiality restrictions on the parties; the restriction to maintain
confidentiality is primarily on arbitrators and administrators.
5.2[a] Need for Systematic Publication
In recent years, there has been a growth in the publication of arbitration awards.
This increase has been primarily driven by an understanding that there is a substantial
public interest in the awards, and hence there is a need for systematic publication in
an open domain.92 One of the biggest and most important benefits which would
follow with the publication of awards is an increase in the transparency of the
decision-making process in the arbitration mechanism. Publication becomes even
more important where an issue of law has not been settled by national courts, but
arbitral tribunals in some past disputes have decided the same.93 An overall increase
in transparency brings openness and certainty to the process,94 and at the same time
plays a key role in marketing the product of the arbitration mechanism: the award.
Putting awards in the public domain would be highly beneficial to the parties as it
publicizes the work of arbitrators and the lawyers involved in the case, thus
showcasing their expertise and allowing them to make informed appointments.
Publicity of practice standards through publishing awards would also be of great
assistance, as it could lead to an increase in the overall efficiency of the mechanism.95
Presently, a number of institutions such as the ICC and the Permanent Court
of Arbitration (PCA) publish awards on their databases.96 The ICC no longer
considers confidentiality to be the status quo and parties must make a request for
the proceedings to be kept confidential.97 The ICC’s Note98 which came into
91
Marlon Meza-Salas, Confidentiality in International Commercial Arbitration: Truth or Fiction? (Kluwer
Arbitration Blog 23 Sept. 2018), http://arbitrationblog.kluwerarbitration.com/2018/09/23/confiden
tiality-in-international-commercial-arbitration-truth-or-fiction/?doing_wp_cron=1596098648.
0659520626068115234375 (accessed 2 Aug. 2020).
92
Andrew Tweeddale, Confidentiality in Arbitration and the Public Interest Exception, 21 Arbitration Int’l 59,
69 (2005).
93
Pislevik, supra n. 68, at 248.
94
95
Fabricio Fortese & Lotta Hemmi, Procedural Fairness and Efficiency in International Arbitration, 3
Groningen J. Int’l L. (2015), https://doi.org/10.21827/5a86a89d8e651 (accessed 3 Aug. 2020).
96
Database maintained by ICC, https://library.iccwbo.org/dr.htm?AGENT=ICC_HQ&AGENT=
ICC_HQ; Database maintained by PCA, https://pca-cpa.org/en/cases/.
97
Samuel, supra n. 90.
98
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of
Arbitration (1 Jan. 2019), para. 40, https://cdn.iccwbo.org/content/uploads/sites/3/2017/03/icc-
note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration.pdf.
effect in 2019 recognized that publication of an award is an ‘instrumental factor’ for

the development of trade worldwide. Under this new policy, the ICC informs
parties at the time of notification of awards, allowing them to object to the
publication. Depending on the objection the award may be anonymized or
pseudonymized or may not be published. A number of awards already exist in
public fora with monetary values and confidential evidence redacted. For the
purpose of the development of law, there is hardly any need to know the name
of the parties or the confidential terms of their business undertakings. In compar-
ison to commercial arbitration, investment arbitration already is a more transparent
regime, and a number of investment arbitration awards are publicly available
through numerous databases.99 This also applies to sports arbitration, where we
can find awards rendered by CAS on its website.100
Hence, the publication of awards should not be seen as contrary to the feature
of confidentiality in arbitration, as it no manner hampers the privacy of proceedings.
Additionally, publication of awards is not only beneficial for the development of a
system of precedents within the arbitration regime, but it also allows the evolution of
the arbitration process towards a transparent and trustworthy mechanism.
Transparency is thus not as big an issue for implementation as it looks from the
outside, especially in the fields of investment arbitration and sports arbitration.
Commercial arbitration awards are not published as systematically as investment
awards and hence case law is scarce in that field. It is also evident from the recent
changes in policies of arbitration institutions that there will be an increase in the
systematic publication of awards, allowing accessibility to case laws and promoting
the development of international commercial law. There are also some who
believe that the publication of awards is not even essential for the development
of precedents; that all it takes is access to past decisions.101 Fields such as investment
arbitration have a relatively smaller pool of arbitrators, and so repeat appointments
are not uncommon. This allows such arbitrators to be aware of past decisions
rendered on similar issues by themselves and other arbitrators in the field, thus
allowing the use of precedent even without publication. Similar knowledge is
available among law firms, which are able to build and maintain a database due to
extensive practice. Nevertheless, such accessibility already exists and drives the
present informal system of precedent. However, systematic publication would help
create a level playing field providing accessibility to awards to all stakeholders,
irrespective of their experience in the field.
99
ITA Law, https://www.italaw.com/; ICSID database https://icsid.worldbank.org/cases/case-data
base; UNCTAD https://investmentpolicy.unctad.org/investment-dispute-settlement.
100
CAS awards are accessible, http://jurisprudence.tas-cas.org/Help/Home.aspx.
101
Weidemaier, supra n. 48, at 1921.
5.3 THE FUTURE FOR A SYSTEM OF PRECEDENT IN INTERNATIONAL ARBITRATION
It is evident from the above analysis that a system of precedents is not completely
absent from the international arbitration mechanism. It can be noted from the cases
discussed in the second part that in investment, commercial and sports arbitrations
there is a constant reference to past awards by the arbitrators, albeit more in one
field than the others. One of the most important purposes fulfilled by a system of
precedents seems to be the development of law and international standards,
through consistent decisions. After considering this purpose as well as the costs
of application of a binding system of precedents,102 it is clear that this system would
be more compatible and successful in certain fields than in others.
The need for a binding system of precedents is greater in certain fields of
arbitration. Unlike the laws for commercial arbitration, jurisprudence in the fields
of sports and investment arbitration is highly delocalized and dependent on inter-
national standards and treatment.103 Commercial arbitration enjoys flexibility in
the choice of rules, but does not dramatically separate itself from national laws,104
whereas the involvement of national law in investment arbitration is mostly limited
to answer questions of fact and to determine fulfilment of an investment protection
standard.105 Investment awards tend to use the interpretation of standards and aim
to explain and develop the law, whereas commercial awards are styled to simply
provide a reason to justify the decision without explanation of the general applica-
tion of the law.106 Thus, the structural difference between the various fields of
arbitration changes the role it plays in the development of law.107
The use of case law has allowed consistency and coherence in the application
of investment law, leading to the emergence of jurisprudence constante in investment
arbitration.108 Similarly, the development of sports jurisprudence has been possible
only because of consistent decisions by CAS.109 In commercial arbitration, due to
lack of transparency of awards and its reliance on national laws, the need and ability
to develop law through arbitral precedent is lower. Although coherence and
consistency are required for the application of transnational commercial laws,
102
As explained in Part III of this research.
103
Muchlinski, supra n. 62.
104
Giuditta Cordero-Moss & Daniel Behn, Arbitration and Its Contribution to the Development of Law, in
Cambridge Compendium of International Commercial and Investment Arbitration 9 (Andrea Bjorklund,
Franco Ferrari & Stefan Kröll eds, CUP, forthcoming). Manuscript in record with the author.
105
Hepburn, supra n. 63.
106
Cordero-Moss & Behn, supra n. 104, at 31.
107
Ibid.
108
Andrea K. Bjorklund, The Emerging Civilization of Investment Arbitration, 113 Penn St. L. Rev. 1269,
1273 (2009).
109
Johan Lindholm, The Court of Arbitration for Sport and Its Jurisprudence (T.M.C. Asser Press 2019).
that can only be achieved when systematic publication of awards is made possible
by the institutions.
Thus, it can be concluded that the future application of a legally binding
system of precedents is much brighter in the fields which are delocalized and
support accessibility of awards. The present application of precedents within
international arbitration has supported the growth of jurisprudence and even
allowed the field of sports and investment arbitration to perform without support
from national courts and jurisprudence. The application of past decisions could be
strengthened through the use of a binding system of precedent within compatible
fields such as sports and commercial arbitration. International commercial arbitra-
tion currently seems incompatible with a binding doctrine of precedent. However,
the need for decisional harmony exists even in commercial arbitrations110 and the
application of precedents could achieve that if there is an increase in transparency
and systematic publication of awards in the regime.
110
Mayer, supra n. 1, at 419.
The Right to an ‘In-person’ Hearing in
International Arbitration
Peter ASHFORD FCIARB*
Le mieux est l’ennemi du bien**

The pandemic saw a considerable increase in the use of virtual hearings. Whilst telephone or
video conference procedural conferences had been commonplace in international arbitration, full
virtual evidentiary hearings had not been. The pandemic changed that and virtual/remote
evidentiary hearings became commonplace and kept the wheels of justice turning. This article
considers whether there is a right to insist on a virtual hearing and conversely whether there is a
right to an in-person hearing. The broad consensus is that save in exceptional or unusual
circumstances, there is no right to an in-person hearing. Virtual hearings work perfectly well and
will generally observe due process. Virtual hearings are good enough and are here to stay in at
least some arbitrations.
Keywords: Virtual, In-Person, Due Process, Consent, Hybrid, Equality
1 INTRODUCTION
The Coronavirus disease 2019 (COVID-19) pandemic has not been all bad1 – it
has driven innovation through the promotion of virtual hearings; reduced costs (by
reducing travel); freed up diaries by taking out travel, acclimatisation time, and
conferences; and made us all better at working without paper. If the long-term
result is to have a greener planet and a cheaper and more efficient arbitration
world – we have something to be thankful for.
The pandemic has made us face novel issues in very many aspects of our lives.
International arbitration is no exception. Parties, counsel and tribunals have had to
*
Partner and co-head of the International Arbitration Group at Fox Williams LLP in London. This
article was drafted and produced for the 3rd Fox Williams/CIArb Panel Debate on the legal issues in
the 28th Vis Moot problem. Email: pashford@foxwilliams.com.
**
Commonly attributed to Voltaire, who quoted an Italian proverb in his Dictionnaire philosophique in
1770: ‘Il meglio è l’inimico del bene’. See also Robert Watson-Watt, who developed early warning radar
in Britain to counter the rapid growth of the Luftwaffe, propounded a ‘cult of the imperfect’, which
he stated as ‘Give them the third best to go on with; the second best comes too late, the best never
comes’.
1
That, of course, is not to trivialise the huge impact of the pandemic. My thoughts are with those who
have lost a loved one and with those who have been ill or otherwise affected by the pandemic.
Ashford FCIArb, Peter. ‘The Right to an ‘In-person’ Hearing in International Arbitration’. Arbitration: The
Int’l J. of Arb., Med. & Dispute Mgmt 87, no. 4 (2021): 575–596.

adapt to the new reality of conducting international arbitration proceedings in the

face of travel restrictions and social distancing measures. One particular issue is
whether hearings that cannot be held in-person can and should be heard remotely.
Many steps in the process of an international arbitration are done remotely
nowadays. This is true for all communications including filing the Request (which
are done electronically/online), as well as constituting the tribunal; all filings, sub-
missions or briefs are electronic (perhaps also with a paper copy) and all or many of
the procedural steps are undertaken by telephone or video conference. The essential
issue is whether a party (or the parties) can insist upon a hearing on the merits to be
in-person. There is no doubt that there have been very many successful virtual merits
hearings, and parties, counsel and tribunals have rapidly assimilated the technology
and introduced protocols to ensure efficiency and due process: necessity truly has
been the mother of invention (or perhaps more strictly, innovation).
A virtual hearing is a hearing conducted by means of communication technol-
ogy to simultaneously connect participants from two or more physical locations.
This includes the now ubiquitous Zoom2 call, allowing multiple locations to interact
simultaneously by both video and audio transmission. As mentioned above, the
concept of remote or virtual hearings (‘virtual hearings’) is not a new phenomenon
in international arbitration. Not only in pre-pandemic times were most case manage-
ment conferences and some procedural hearings conducted virtually, so were merits
hearings in certain cases. For instance, virtual hearings are often used in expedited
and emergency arbitrator proceedings. Indeed, ICSID announced that the majority
of its hearings in 2019 were held by videoconference.3
Moreover, it was not uncommon for certain witnesses or experts to give their
evidence virtually and by video-link. Similarly, some aspects of a merits hearing
might be in-person and others virtual. For example, (some, or all, of the) evidence
might be in-person and closing oral submissions might be virtual.
2 THE LEGAL/RULES FRAMEWORK

The permissibility of a virtual hearing depends on the applicable legal and con-
tractual framework, in particular the law of the seat of the arbitration and the
agreement to arbitrate (including any arbitration rules incorporated).
So far as I am aware, no national law or institutional rules expressly impose or
prohibit virtual hearings. Rather, to the extent that laws or institutional rules
contain specific provisions on virtual hearings, they do so in permissive terms.
2
Other platforms are, of course, available.
3
ICSID, A Brief Guide to Online Hearings at ICSID (24 Mar. 2020), https://icsibidworldbank.org/
news-and-events/news-releases/brief-guide-online-hearings-icsid.
HEARING IN INTERNATIONAL ARBITRATION 577
For example, Article 1072b(4) of the Dutch Civil Procedure Code provides
that ‘[i]nstead of a personal appearance of a witness, an expert or a party, the arbitral
tribunal may determine that the relevant person have direct contact with the arbitral tribunal
and, insofar as applicable, with others, by electronic means, … ’
Most national arbitral laws typically provide that, absent any agreement by the
parties, the arbitral tribunal may ‘conduct the arbitration in such manner as it considers
appropriate’4 and ‘decide all procedural and evidential matters’5 or ‘determine [the procedure]
to the extent necessary, either directly or by reference to a statute or to rules of arbitration’.6
Similarly, Article 19.2 of the London Court of International Arbitration
(LCIA) Rules 2020 provides: ‘[t]he Arbitral Tribunal shall have the fullest authority
under the Arbitration Agreement to establish the conduct of a hearing, including its […] form
[…]’, specifying that ‘[a]s to form, a hearing may take place by video or telephone
conference or in person (or a combination of all three)’.7,8
Some other rules contemplate specific aspects of virtual hearings being con-
ducted virtually, for example, Article 28(2) of the SCC Rules provides: ‘The case
management conference may be conducted in person or by any other means’. There is no
similar provision in Article 32 regarding hearings.9 This gives the potential for the
argument that virtual hearings are not permitted (absent agreement), except in
those situations specifically provided for. That would be answered by the wide
discretion afforded to tribunals to manage and organise proceedings efficiently and
in their discretion.
3 A RIGHT TO A HEARING
A party’s right to a hearing is a fundamental right. Indeed, many national laws and
institutional rules contain provisions to that effect, specifying either that a party may
request a hearing,10 or that the arbitration cannot be conducted on a documents-
4
UNCITRAL Model Law, Art. 19(2).
5
English Arbitration Act. § 34(1).
6
Swiss Private International Law Act, Art. 182(2).
7
Interestingly, this is the same language as in the 2014 Rules.
8
Article 24.4 of the ICC Rules 2021 provides ‘Case management conferences may be conducted through a
meeting in person, by video conference, telephone or similar means of communication. In the absence of an
agreement of the parties, the arbitral tribunal shall determine the means by which the conference will be conducted’.
And Art. 26.1 provides ‘The arbitral tribunal may decide, after consulting the parties, and on the basis of the
relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by
videoconference, telephone or other appropriate means of communication’. As to hearings, this was a change
from the previous 2017 ICC Rules which provided: ‘When a hearing is to be held, the arbitral tribunal,
giving reasonable notice, shall summon the parties to appear before it on the day and at the place fixed by it’.
9
See also e.g., Art. 28(4) of the UNCITRAL Arbitration Rules provides that witnesses and experts may
be heard remotely, but contains no similar provision for other aspects of hearings, such as submissions.
10
For national laws, see e.g., German Civil Procedural Code (ZPO), § 1047(1); Swedish Arbitration Act,
§ 24(1). See also Arbitration Law of the People’s Republic of China, Art. 47. For institutional
arbitration rules, see e.g., SCC Rules, Art. 32(1); UNCITRAL Rules, Art. 17(3).
only basis absent consent.11 Other national laws and institutional arbitration rules
leave the question of whether to hold a hearing to the discretion of the tribunal.12
The substantive question is then whether this fundamental right necessarily
means a physical in-person hearing. What distinguishes a hearing is that it involves
the simultaneous exchange of argument and (usually) evidence. It can be seen that
a ‘documents-only’ arbitration is thus the antithesis of a hearing: it is neither oral
nor simultaneous (it is usually sequential).
However it is convened, a virtual hearing meets those distinguishing features.
Evidence is adduced and arguments are made orally during in-person hearings, as
well as in virtual hearings, albeit that virtual hearings use technology to transmit the
audio (and video) to other participants. In both in-person and virtual hearings, the
exchange of evidence and arguments is simultaneous in the sense that it is live and
demands (or at least permits) an immediate response (whether by cross-examina-
tion or counter-argument).
The evolution in hearing parties in-person is illustrated by the changes in the
ICC Rules. The 2017 Rules at Article 25(2) provided: ‘[a]fter studying the written
submissions of the parties and all documents relied upon, the arbitral tribunal shall hear the
parties together in person if any of them so requests or, failing such a request, it may of its own
motion decide to hear them’. The reference in Article 25(2) to a hearing ‘together’ and
‘in person’ could have been read as prohibiting anything but an in-person hearing.13
The 2021 Rules have a different Article 25(2): ‘The arbitral tribunal may decide to hear
witnesses, experts appointed by the parties or any other person, in the presence of the parties, or
in their absence provided they have been duly summoned’. The reference to in-person has
been removed although it would have been open, it is suggested, to construe the
2017 Rules as permitting a virtual hearing however it was convened.
4 THE PARTIES’ UNANIMOUS CONSENT, ONE PARTY CONSENT

AND ONE PARTY OPPOSE AND BOTH PARTIES OPPOSE
If the parties agree to a virtual hearing, or conversely agree to adjourn until an in-
person hearing can take place, a tribunal will generally follow the parties’ agreement
albeit that they may wish to discuss with the parties to be sure that upholding party
autonomy is really what is desired, for example, if it moved a hearing into a period
when the tribunal were unable to hold a hearing for a considerable period (e.g.,
11
See e.g., ICC Rules, Art. 25(6); SIAC Rules, Art. 24.1.
12
See e.g., English Arbitration Act, §§ 34(1) & (2); HKIAC Rules, Art. 22.4; Indian Arbitration Act, § 24(1).
13
Note, however, that other linguistic versions of the 2017 ICC Rules did not contain the ‘in person’
language; rather, they simply required that parties should be heard orally and allowed an adversarial
exchange of arguments.
scheduled medical treatment of a tribunal member). A long delay may also conflict
with the Tribunal’s duty of an expeditious award.
A tribunal might be reluctant in the face of party agreement for a virtual
hearing due to unfamiliarity with online platforms: there is a short answer to
that – invite the tribunal to resign in favour of a tribunal who is familiar and
who can and will hold a virtual hearing.14 It is not acceptable for technophobia to
impede or override the parties’ consent. More legitimate concerns might be raised
over the enforceability of an award (it being the tribunal’s duty to render an
enforceable award). Again, if those are discussed with the parties and they still
wish to proceed, a tribunal should do so (no doubt recording that it was raised and
discussed, and that the parties remained agreed).
More difficult issues arise if the parties are not agreed. This will involve the
consideration of whether the power exists, at law or by reason of the arbitration
agreement (incorporating any institutional rules), to order a virtual hearing; the
considerations that weigh in the exercise of the power and how the facts fit to
those considerations.
5 DUE PROCESS
This exercise of any power will likely come down to potentially competing
interests of the parties’ right to be heard and treated equally, (enshrined in many
national laws and institutional rules) and the tribunal’s obligation to conduct the
proceedings in an efficient and expeditious way.
As a preliminary comment, absent some very specific agreement for in-person
hearings, it must be very questionable whether a Court would be sympathetic to a
due process argument that an in-person hearing was mandated. In the course of the
pandemic, many national courts had to innovate and move (further) towards
virtual hearings. If national courts therefore consider virtual hearings as sufficient
guarantees for procedural rights in a national context, it will be difficult for the
same courts to hold that virtual hearings in international arbitration violate the
parties’ right to be heard.
One difference might well be that Courts operate on a system of open justice
and whilst who can, and who cannot, attend virtual Court hearings remains
important, there is a difference with the inherently confidential and private nature
of arbitration. If a party could raise legitimate concerns over whether a virtual
arbitral hearing was sufficiently cyber secure, it may be sufficient to justify a
differential with a Court process.
14
Efficiency would dictate that this should be resolved at an early stage, perhaps at the first procedural
conference.
The power to order a virtual hearing is likely to be a question of law or

institutional rules, as discussed above. Assuming that the tribunal finds that it has
such power, it must determine the relevant test it should apply to exercise this
power, and in particular the factors it should take into account which will be
peculiarly fact sensitive. As above, tribunals will typically have the power of
ordering a virtual hearing over the opposition of one party, but the exercise of
that power will require a careful consideration of the facts.
One of the first questions to be addressed is whether there is a burden of proof
and, if so, on which party it rests. Is it for the party applying for a virtual hearing to
show why it is needed or is it for the party resisting a virtual hearing to establish
why it would be inappropriate in the circumstances? Some guidance might be
obtained from national courts.15 It seems very plausible that tribunals might well
follow local court practice. Whilst there is a particular focus now due to the
pandemic, there will be good reason to consider this issue into the post-pandemic
future. It may be that certain participants have difficulty in, or resistance to,
travelling due to a variety of reasons including other commitments, medical or
visa issues, or to reduce the carbon footprint.
In general terms, due process16 can be broken down into four elements or
principles: (i) a party must be given notice of the case against it; (ii) the party has an
opportunity to present its case and respond to the case put against it; (iii) before an
impartial and independent tribunal; (iv) that treats all parties with equality. Put
another way, due process is the procedural cornerstone of the ‘rule of law’. Due
process means that persons are not to be deprived of their property or other rights,
without the fair opportunity to defend themselves before neutral judges. Due
process or ‘natural justice’ serves as the shield of fundamental procedural rights
before deprivation of substantive rights.
It is embodied for arbitration purposes in Article 18 of the UNCITRAL
Model Law:
The parties shall be treated with equality and each party shall be given a full opportunity of presenting
his case.
Similarly, section 33(1)(a) of the English Arbitration Act:
The tribunal shall act fairly and impartially as between the parties, giving each party a reasonable
opportunity of putting his case and dealing with that of his opponent.
15
See e.g., Surrey Heath Borough Council v Robb & Ors [2020] EWHC 1650 (QB) where Freedman J said,
‘the onus is on a party to draw attention to a requirement to have a hearing in Court and to provide
reasons why it would not be just for the hearing to take place remotely’ at [5].
16
It is interesting to see the change in phraseology over time. Generally, expressions protecting due
process are become more specific. This has not been with a view to limiting protections but rather at
preventing abuses. A full discussion is outside the scope of this paper.
The likely issues in challenging a virtual hearing or demanding an in-person

hearing are (ii) and (iv).
5.1 PRESENTING ITS Case and Responding

Tribunals are usually bestowed with a very wide discretion as to the form of any
hearing. This breadth of discretion indicates that there is no absolute right to a
physical hearing, although there may be limited circumstances in which procedural
fairness would require one. Specifically, an arbitral tribunal’s power to decide on
procedural and evidential matters under the English Arbitration Act 1996 is subject
to a duty to give each party a reasonable opportunity of putting its case and dealing
with that of its opponent,17 and to adopt procedures suitable to the circumstances
of the particular case, avoiding unnecessary delay or expense, so as to provide a fair
means for the resolution of the matters falling to be determined.18 The arbitral
tribunal must therefore comply with these due process duties when considering
whether a hearing should proceed on a fully or partially virtual basis.19
In most cases a party will be able to put its own case or deal with that of its
opponent adequately or reasonably virtually, given the accumulated knowledge
that it is possible to conduct arbitration proceedings (including key aspects such as
making oral submissions, cross-examination of witnesses, tribunal deliberations,
party and counsel communications etc) on a virtual basis. Inevitably, there will be
(rare) cases on the other side of the line. These will include cases where a robust
internet connection cannot be guaranteed or where an inspection is necessary.
It is important that proceedings be conducted as close as possible to the norm,
but departures from the norm are justified where the broader interests of justice
and the efficient conduct of proceedings require.20
5.2 EQUALITY
The requirement for procedural equality permeates all phases of the arbitral proceed-
ing, setting limits on both the tribunal’s and the parties’ conduct. The universality of
the equal treatment principle makes it impossible to exhaustively list the various
17
§33(1)(a).
18
§33(1)(b).
19
§33(2).
20
See e.g., Neurim Pharmaceuticals (1991) Ltd and another v. Generics UK Ltd [2020] EWHC 3270 (Pat) at
[18].
scenarios in which it might arise throughout the arbitral process. Indeed, the
enduring quality of procedural fairness is perhaps its ability to defy mechanistic
application and adapt to the demands of a case.21 For instance, where one case
might necessitate a strict division of hearing time between the parties,22 another
might warrant a more nuanced approach to account for differences between the
parties in the number of witnesses and experts to be cross-examined, the number of
parties (e.g., one claimant and multiple respondents), or the burden of proof.
Equality in the virtual hearing focusses on the same treatment for everyone. It
is unlikely to be one party (and its witnesses) attending in-person with the tribunal
and the other (and its witnesses) virtually. Similarly, the same platform and the
same protections to ensure that the witnesses are giving uninfluenced evidence,
should apply.
The tribunal should likewise be either all virtual or all in-person together
(even if the parties, counsel and/or witnesses are virtual). It is unlikely to be
desirable to have two tribunal members together in-person and another
virtual.23
If one party is affected by technological issues, but not the other, this may
infringe equality. In Sino Dragon Trading Ltd v. Noble Resources International Pte
Ltd,24 the Australian court found no breach even though serious issues occurred
during one party’s witness evidence. Sino Dragon sought an order from the
Federal Court of Australia setting aside the Final Award asserting that, inter alia,
technical and translation issues during the arbitration process gave rise to a lack of
procedural fairness and lack of equality of treatment. In short, that the evidence of
two key witnesses called by Sino Dragon in the arbitration via videoconference
was ‘beset by technical difficulties’, such that the evidence could not be properly
21
See e.g., Schweiker v. McClure (1982) 456 US 188, 200 (‘due process is flexible and calls for such
procedural protections as the particular situation demands’).
22
See Gold Reserve Inc v. Venezuela No. CV 14–2014 (JEB). Venezuela defended a New York
Convention action to enforce an ICSID Additional Facility award against it, in part on the ground
that it had been ‘unable to present its case’ because the division of hearing time had been unequal.
Venezuela itself had requested a condensed hearing, following the unfortunate death of its Attorney
General, and it chose not to examine the claimant’s witnesses. The claimant did use its hearing time to
examine Venezuela’s witnesses. The US District Court rejected Venezuela’s due process defence,
stating: ‘It is not enough that Venezuela provides evidence of unequal time; it must show … how the denial of
extra time prevented it from presenting its case’.
23
Especially, if it was the Chair and one party appointee, it might be that the parties would be more
comfortable with the two party appointees being present together. I have had a situation of one
tribunal member (a party appointee) physically present with counsel for both parties and the other two
tribunal members attending virtually from different locations. That appeared to work well.
24
[2016] FCA 1131. Sino Dragon is a significant case (not least as it was pre-pandemic) as most
conceivable issues were raised and addressed by the Court.
presented. Sino Dragon submitted that the technical faults coupled with issues of
mistranslation rendered it unable to present its case, amounting to a breach of
natural justice, which it contended was contrary to Australian public policy. As part
of its contention, Sino Dragon submitted that it was not ‘treated with equality’ and
not given a ‘full opportunity of presenting’ its case within the meaning of Article
18 of the Model Law. The Court perceived numerous opportunities to avoid the
difficulties with the evidence in question, including by having the relevant wit-
nesses travel to Australia. The Court took into account that the platform used for
the evidence of Sino Dragon’s witnesses was that chosen by Sino Dragon. There
was no explanation as to why Sino Dragon did not make video-link arrangements
through a recognized and experienced provider. Of particular significance was the
fact that no efforts were made to change the system used for the second day, given
the difficulties experienced on the first day. The Court was also unimpressed by
the fact that Sino Dragon did not raise the relevant technical difficulties until after
the Final Award was handed down. Moreover, Sino Dragon’s own counsel
submitted that, notwithstanding the technical difficulties, the evidence of the
witnesses had come out ‘clearly and consistently with their evidence in chief’. The
Court considered it was entitled to infer from the absence of complaint during
the arbitral proceedings that those ‘charged with running the case for Sino Dragon did
not perceive any lack of reasonable opportunity’. Finally, the Court held that Article 18
and the review powers under Article 34 of the UNCITRAL Model Law do not
apply to unfairness caused by a party’s own conduct, including forensic or strategic
decisions. The Court found that Sino Dragon was ‘largely […] the author of its own
misfortune’.
A hybrid hearing is an alternative to an in-person hearing and parties and
tribunals should consider whether it is possible to find a solution to any particular
difficulty that has been identified with a virtual hearing. An example would be
where counsel attend in-person, but a witness, who is self-isolating, gives evidence
virtually. It may be appropriate for oral evidence to be given in person and closing
arguments to be delivered virtually.25
Thus, if the issues are significant and affect one side more than the other, the
conditions under which the parties present their case may not be equal. A difference
in treatment could also be a potential ground to challenge an award, if one party is
suspected to have coached its witnesses or experts during their testimony. The other
party might argue that this distorted the conditions under which testimony is heard.
25
See e.g., Martin v. Kogan [2021] EWHC 24 (Ch) at [20].
These issues are best avoided by following clear protocols,26 including tribunal
directions on the (im-)permissibility of communication or interaction between
witnesses/experts and party representatives before, during and after their testimony,
and specific means to prevent impermissible witness coaching, such as rotating
camera views. However, these protocols require the parties to agree on issues that
they may find difficult to do in the first instance; the level of technology expertise
required to be able to know what a ‘good’ internet speed is in numeric terms, or
what audio coding standards are, will take some time for parties to understand and
constructively negotiate. In any event, the tribunals would be well-advised at the end
of any virtual testimony to confirm with all parties that they have no concerns about
the conditions under which the testimony took place. Finally, the parties’ right to be
treated equally is relevant for semi-virtual hearings, in which one side (or its witnesses
and experts) participates virtually, but not the other. According to the CIArb
Guidance Note on Remote Dispute Resolution Proceedings, unless the parties
agree otherwise, ‘[i]n the interests of equality, it is preferable that if one party must appear
to the tribunal remotely, both parties should do so’.27
Thus, if there is no difference in treatment, it will be difficult to argue that
equality has not been respected. Therefore, in a fully remote hearing, in which all
parties (as well as their counsel, witnesses and experts) participate remotely, their
right to be treated equally typically is not violated, absent very specific circumstances.
5.3 CONSIDERATIONS
The likely considerations in the exercise of any power for a virtual hearing are
likely to include: (a) the reason(s) (i.e., whether any difficulty was always
known); (b) the anticipated content (i.e., submission/argument or evidence and
the nature of the evidence); (c) any technical issues; and (d) the timing and costs
comparisons.
26
See e.g., CIArb Guidance Note on Remote Dispute Resolution Proceedings, https://www.ciarb.org/
media/8967/remote-hearings-guidance-note.pdf?mc_cid=cad9adebdf&mc_eid=f90f77d952; the Seoul
Protocol on Video Conference in International Arbitration, http://www.kcabinternational.or.kr/user/
Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=
MENU0025&TOP_MENU_CODE=MENU0024; and as well as The International Council for
Commercial Arbitration, New York City Bar Association and International Institute for Conflict
Prevention & Resolution Working Group’s. 2020 Cybersecurity Protocol for International Arbitration,
https://cdn.arbitration-icca.org/s3fs-public/document/media_document/icca-nyc_bar-cpr_cybersecur
ity_protocol_for_international_arbitration_-_print_version.pdf.
27
§1.6 CIArb Guidance Note on Remote Dispute Resolution Proceedings.
5.4 REASONS
The pandemic reasons of travel restrictions and social distancing measures are well
known, but if a future reason is that one or more witnesses face visa issues, it may well
be relevant to know e.g., when the issue arose and what has been done about it since.
5.5 CONTENT
The typical reason is that cross-examination cannot be properly conducted remo-

tely and all the more so where there are serious allegations of fraud (or similar) and
so assessment of the witness’s credibility is paramount. Video has many advantages
over telephone and it is only if the internet link is so poor or temperamental that it
cannot be relied upon that ‘phone is likely to be chosen. Certainly, where there is
disputed evidence being tested by cross-examination, video is almost inevitably
going to be required, as demeanour is an important aspect of the assessment of
witness and expert evidence. In Polanski v. Condé Nast Publications Limited28 the
House of Lords held that cross-examining a witness by video link does not, in and
of itself, prejudice the party conducting the cross-examination.29
5.6 TECHNICAL
There may be technical issues preventing one or more parties from participating
effectively, e.g., reliable internet connections. That may not necessitate travel to
the seat (or other venue) rather it may entail travel to a convenient city, country or
arbitration hearing rooms that are close to the party.
5.7 TIMING AND COSTS Comparisons
Generally, a virtual hearing will be cheaper than an in-person hearing but each case
will depend on its facts. Virtual hearings may involve a large technical support cost,
shorter sitting days (and hence a longer hearing)30 whereas if the parties have
28
[2005] UKHL 10, at 43. And see McGlinn v. Waltham Contractors Ltd & ors [2006] EWHC 2322
(TCC), at 11.
29
Although perhaps dated by the language of the time, and verging on the hyperbolic, Wigmore said the
following about cross-examination being ‘beyond any doubt the greatest legal engine ever invented for the
discovery of the truth’ (Wigmore, Evidence, 2nd ed (1923) at §1367). To be effective, cross-examination
requires many conditions to be satisfied, one of which is that the witness under examination fairly and
effectively be able to give his or her evidence.
30
It is generally accepted that a virtual hearing is both more tiring and more difficult to concentrate on
for long periods.
limited travel time and cost and there is no, or no significant, venue hire cost, it
may be cheaper overall.
Finally, even where a breach of the parties’ right to be heard occurred, this
does not automatically lead to the non-enforcement of the award under the New
York Convention. Rather, some national courts require a causal nexus between
the breach and the award. In other words, a violation of the right to be heard leads
to the refusal of award recognition/enforcement only if the award would have
likely been decided differently had the procedural irregularity not occurred.31 In
the case of remote hearings, this might not be easy to establish.
6 NATIONAL LAW COMPARISONS

A brief review of how certain jurisdictions have addressed is given below. For
those wanting a more detailed review, the research by ICCA32 is a masterly
global review. The various country reports reveal many common trends and
convergences in response to the core questions of the survey. In particular, none
of those jurisdictions’ lex arbitri contains any express provision recognising a right
to an in-person hearing. Instead, the majority of the reports suggest that such
right can in fact be excluded by looking at three main factors, namely, the broad
procedural discretion of the tribunal as to the form of the hearing; the possibility
to order documents-only arbitrations33; and provisions in the Arbitration Rules
of the most relevant institutions in those jurisdictions expressly allowing remote
hearings.
In most of those jurisdictions, the arbitrators’ procedural discretion is essen-
tially limited by their duty to safeguard the parties’ due process rights (with the
exception of Indonesia). In practice, this will require a balancing of two key
considerations. On the one hand, due process requires a case-by-case fact-specific
evaluation of whether the key participants to the hearing are able to attend
virtually and have an effective opportunity to present their case. On the other,
31
For example, § 68 of the English Arbitration Act 1996 requires ‘serious irregularity’. The DAC called
Clause 68 a long stop, only available in extreme cases where the tribunal has gone so wrong in its
conduct of the arbitration that justice calls out for it to be corrected.
32
Co-editors Giacomo Rojas Elgueta, James Hosking and Yasmine Lahlou in collaboration with ICCA,
https://www.arbitration-icca.org/right-to-a-physical-hearing-international-arbitration .
33
The possibility that a dispute is decided on the papers, circumventing the need for a hearing of any
kind, is a further option. In appropriate circumstances, albeit unlikely to arise often in cases of
substance, that may be the neatest solution to any special difficulties in arranging remote, hybrid or
physical hearings. In the Commercial Court case of Roberts v. Royal Bank of Scotland PLC [2020]
EWHC 3141 (Comm), Cockerill J granted the defendant bank’s application for summary judgment /
strike out following a determination of its application, by consent, on the papers in circumstances
where the claimant, a litigant in person, indicated that he was unable to attend a physical hearing for
health reasons, or to attend a hearing by remote video link (for technical reasons), or even to attend by
telephone (as this would make it impossible to consult with his McKenzie Friend during the hearing).
this must be balanced against considerations of access to justice and the duty to
decide the dispute without undue delay.
In Model Law jurisdictions, the provision granting the parties the right to
request an ‘oral’ hearing gives rise to different interpretations as to whether a right
to a ‘physical’ hearing must be inferred. In the majority of those jurisdictions,
(including Canada, Colombia, Georgia, Greece, India, New Zealand, South
Africa, Sri Lanka, Turkey) the reporters have concluded that the right to an oral
hearing does not exclude holding it through videoconferencing. In Hungary,
however, the right to a physical hearing is now specifically excluded as a conse-
quence of a recent reform that deleted the word ‘oral’ from the corresponding
norm of the lex arbitri. In Bahrain and Denmark, whether ‘oral’ means ‘in-person’
remains to be determined.
The surveys have also revealed some interesting divergences. For example,
the parties’ agreement to hold an in-person hearing is not binding on the
tribunal in the Czech Republic. In Brazil, France and Indonesia it is binding,
but only when such agreement was made prior to the constitution of the
tribunal. In turn, violation of the parties’ agreement would in itself likely entail
annulment of the award, without any additional showing, in Bahrain, Hungary,
India, Russia, Sri Lanka and Turkey, whereas in England and Wales, such
violation will not entail annulment of the award unless it has caused substantial
injustice.
The surveys also provide insight into domestic courts’ interpretation of the
New York Convention. The courts of England and Wales again stand out, as
reporters note that they would assess violations of due process against domestic
notions of natural justice without looking at whether a right to a physical hearing
exists at the seat of the arbitration. The same approach is reported for India.
However, in the Czech Republic, Georgia and Russia, reporters note that courts
will give deference to the provisions of the law of the seat.
7 SOME CASES
Some of the first direct court challenges to a remote hearing that I am aware of
have recently been decided in England, Australia, the US and Austria. Some of
those cases are reviewed below to illustrate the position taken by Courts. That is
for two reasons: firstly, it may indicate good practice that a tribunal may wish to
follow or take inspiration from; and secondly, they may indicate a standard that a
reviewing Court may hold itself to and, by analogy, the due process standard that
the Court may hold the tribunal to.
The position is some key jurisdictions is summarized in Table 1 below.
Table 1
Issue England France USA Australia
Is there an No. The No. Book IV of No. Neither the No. There is no
express Arbitration Act the French Federal right to an
right to an 1996 confers a Code of Civil Arbitration Act in-person
in-person wide discretion Procedure (FAA) nor state hearing. Rather,
hearing? on the (FCCP) does laws on inter- there is an
tribunal.34 not expressly national arbitra- obligation to
Absent agree- provide for a tion provides observe due
ment to the right to a phy- for the right to a process.35
contrary, a sical hearing physical
tribunal would whether for hearing.
be able to order domestic or
a virtual international
hearing. arbitration.
Can a right to No. Whilst Likely not, as Likely not. Likely not.
an in-per- there may well the parties and There is no Australian
son hearing be a right to an tribunal have a reported case to courts have
be inferred? oral hearing, wide discretion. that effect. rejected chal-
that can be vir- See specifically Rather than lenges to awards
tual or in- Article 1509 being con- issued after
person. FCCP permit- cerned whether virtual hearings,
ting the proce- an oral hearing thus implicitly
dural rules to be entails an rejecting any
determined ‘as in-person right (express or
required’. hearing the implied) to an
debate is more in-person
likely to be over hearing.
due process.
34
§ 34(1).
35
See generally Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2016] FCA 1131.

Is there a No absolute Probably an Maybe, but if No. The
right to an right unless due inferred right. so, it is subject Federal Court
in-person process might There are to significant Rules permit
hearing be infringed. numerous exceptions.37 “testimony”
before the The Civil references in and “submis-
Courts? Procedure various sions” to be
contemplate provisions to given via
and afford wide ‘hearings’, “video link,
powers for ‘place’ and audio link, or
using ‘personal other appropri-
technology.36 appearance’ ate means” in
without any certain
definition to circumstances.
determine
wither a virtual
hearing would
comply.
Can any No. But tribu- No. The prin- No. US courts No. Tribunals
Court prac- nals might take ciple is that thehave repeatedly need not follow
tice be into account rules of civil confirmed that court process.
extended to similar due procedure are arbitrators are
arbitration? process not transposable not bound to
considerations. to arbitration follow judicial
proceedings.38 rules of
procedure.
Can a tribunal No. Party Likely not. It depends. If Potentially, yes.
override part autonomy Party autonomy the arbitration Party autonomy
agreement prevails.39 prevails, cer- agreement prevails, certainly
to have an tainly if in the plainly requires if in the arbitra-
in-person arbitration an in-person tion agreement
hearing? agreement hearing a itself but possibly
36
For example, re evidence CPR rule 32.1(1)(c) and re hearings and receiving evidence by technology
CPR rule 3.1(2).
37
Pursuant to s. 203 of the FAA, disputes arising out of international arbitrations are deemed to ‘arise under the
laws and treaties of the United States’ and, as such, are subject to the original jurisdiction of the federal courts
and hence the Federal Rules of Civil Procedure (FRCP). The FRCP requires that ‘witness testimony must be
taken in open court’: Fed. R. Civ. P. 43(a) However, ‘[f]or good cause in compelling circumstances and with appropriate
safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location’: Ibid.
This permission has often been used even before the COVID-19 pandemic to allow witnesses to testify by
video or telephone when travel to the place of trial would be unfeasible or lead to unnecessary costs.
38
Articles 1464 and 1509 FCCP.
39
34(1).

40
itself and tribunal could not for proce-
probably for not order one. dural agreements
procedural in the course of
agreements in proceedings.
the course of There may then
proceedings. be grounds for
challenge.
Does a failure Yes. A right of Probably yes.42 Yes. US courts Probably not.
to object to challenge is lost typically refuse But any
a virtual where a party challenges to challenge would
hearing pre- continues enforcement if be less likely to
vent a chal- without having the resisting succeed. Certain
lenge to a objected.41 party did not fundamental
subsequent raise the procedural
award? impugned rights, including
arbitral conduct the rights to be
during the treated equally
arbitration. and to present
one’s case, are
treated as
mandatory and
non-derogable
rights, which
cannot be waived
Would breach Possibly, but in Likely not, but Likely not. Potentially, but
of a right to extremely highly fact Essentially, such challenges
an in-per- limited dependent. whether the are unlikely to
son hearing circumstances. process was succeed absent
be grounds ‘fundamentally exceptional and
for refusing fair’.43 egregious
recognition circumstances.
or enforce-
ment?
40
Article 1509 FCCP (referring only to the agreement of the parties which is contained in the arbitration
agreement itself).
41
73.
42
Article 1466 of the FCCP provides that ‘[a] party which, knowingly and without a legitimate reason, fails to
object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to
avail itself of such irregularity’.
43
Parsons & Whittemore Overseas Co. v. Societe Generale De L’Industrie Du Papier (RAKTA), 508
F.2d 969, 973 (2d Cir. 1974).

What specific The Courts and In Court, the The use of Various steps
COVID judiciary have possibility of technology was taken to facili-
measures issued a number using videocon- widespread tate greater use
have been of practice ferencing with- pre-pandemic of technology.
introduced? directions44 and out the prior and has simply Wide adoption
statements. consent of the been scaled of virtual
Virtual hearings parties, has been up.46 hearings.
have been mandated on a
widely adopted. time limited
basis. There has
been limited
take-up.45
7.1 ENGLAND
In the English pre-pandemic Hanaro Shipping v. Cofftea Trading47 Teare J rejected
an argument that there was a procedural imbalance between one party’s witnesses
giving evidence in person whilst the counterparty’s witnesses gave evidence only
by video link. Teare J held as follows:
I should say in relation to the video link Mr Buckingham suggested that there would be an
imbalance between witnesses who have to give evidence by video link and witnesses who
give evidence in person. I am not persuaded that there is such a risk. Perhaps in the early
days of video link when the quality of the video link was poor and it was a novelty,
perhaps that might have been said, but these days I do not consider that that can be said.
As to applications to adjourn a commercial trial due to concerns about the conduct
of a remote hearing, the decision of Mr John Kimbell QC, sitting as a Deputy
High Court Judge, in Re Blackfriars Limited48 is instructive: courts should continue
to function so far as they are able to do so safely by means of the increased use of
technology to facilitate remote trials; the parties are expected to work with
available technology to overcome the challenges of hearing live witness evidence;
44
See in particular, Practice Directions 51Y (Video or Audio Hearings During Coronavirus Pandemic)
and 51ZA (Extension of Time Limits and Clarification of Practice Direction 51Y).
45
Orders No. 2020–30439 of 25 Mar. 2020 and No. 2020–595 of 20 May 2020. These were declared in
accordance with the constitution by the French Constitutional Court, 19 Nov. 2020, No. 2020–866
QPC.
46
Ciccone v. One W. 64th St., Inc., 2020 WL 5362065, at *5 (N.Y. Sup. Ct. 4 Sept. 2020) (‘[F]ederal
trial courts across the country [...] have consistently determined that given the pandemic, it is
necessary, appropriate, and fair to hold bench trials entirely by videoconference’).
47
[2015] EWHC 4293 (Comm) at [16].
48
[2020] EWHC 845 (Ch).
and where both sides are well-resourced, there is no potential unfairness due to the
challenges of a remote hearing.
In SC (A Child) v. University Hospital Southampton NHS Foundation Trust (Rev
2)49 the Claimant applied to adjourn a clinical negligence trial, involving expert
witness evidence, which they said could not be fairly conducted remotely. Johnson J
considered that the hearing could be conducted fairly, because all parties were legally
represented and were able to access and utilise the technology necessary to conduct
the hearing. His view was that there was no reason to think that the disadvantages of
having a remote hearing would have an unequal impact on the parties. However,
Johnson J held that even though a remote hearing could be conducted fairly, it was
undesirable to do so having regard to the likely length of hearing, the nature of the
issues, the volume of written material and the complexity of the lay and expert
evidence. He noted that (a) a hearing that is wholly remote lacks many of the features
and benefits of a hearing that takes place in court; (b) the solemnity, formality and
focus of the courtroom is not easily replicated by a remote hearing; (c) the complex
multi-layered human communications and observations that take place during a
substantial witness trial are significantly impeded when the hearing is conducted
remotely; and (d) a video-conference is necessarily two-dimensional and permissive
only of bilateral communication and observation.
7.2 BILTA (UK) LTD (IN LIQUIDATION) V. SVS SECURITIES PLC50

Marcus Smith J refused to adjourn the trial (for a second time in the pandemic) of a
dishonest assistance claim, notwithstanding that the Defendant’s witnesses had
expressed a strong reluctance to attend court given a worsening state of the pandemic.
The court set out sufficiently robust case-management directions to assuage concerns
about contracting COVID-19 through attending court. Alternatively, a fair process
could be achieved by receiving the witnesses’ evidence remotely. The level of detail
that the Court went into is instructive. The trial would be subject to extremely tight
case-management directions.51
49
[2020] EWHC 1445 (QB).
50
[2021] EWHC 36 (Ch).
51
Including that a ‘supercourt’ (a large court room) would be allocated (at least forty-eight hours before
the trial start date) to maximise social distancing space, and it would not be used for any other purpose
for the duration of the trial; the hearing would be a hybrid of an in-person and remote hearing; not all
of the members of the parties’ legal teams would be physically present in court, and numbers present in
general would be strictly limited, particularly when the witnesses gave evidence; the witness box
would be in a remote zone within the court, as far removed from other persons as possible; there
would be a much more detailed trial timetable than normal; witnesses would be given specific start
times for their evidence, which would be adhered to; steps would be taken to ensure that participants,
in particular the witnesses, accessed and left the court building without interaction with other people;
8 AUSTRALIA
8.1 CAPIC V. Ford Motor Company of Australia Limited52
Ford Motor Company of Australia Limited applied to adjourn a six-week trial,

citing technological limitations, physical separation of legal teams, document
management issues, and difficulty in briefing and cross-examining witnesses.
The Court refused the adjournment and held that technology difficulties
could be resolved effectively, legal teams could communicate over instant messa-
ging platforms (such as WhatsApp), document management could be facilitated by
the use of digital court books and services such as Dropbox, and the briefing and
cross-examination of witnesses and the preparation of joint reports over virtual
platforms, although challenging, time-consuming and expensive was ‘not unjust or
unfair’. An adjournment of the trial because of COVID-19 would be for an
indefinite period and, as the case had been pending for years, it was in the interests
of the administration of justice that the proceeding should be resolved if possible.
8.2 ASCOT VALE SELF STORAGE PTY LTD V. NOM DE PLUME NOMINEES PTY LTD53
The Claimant submitted that it would be ‘inapt’ for a witness’ dishonesty to be

tried by video link in the COVID-19 environment, relying upon the David Quince
v Annabelle Quince (summarised below). However, the Court did not accept that
case to be authority for the proposition that a trial by video link should not
proceed where there is a question of credit to be tried. Whether video link trials
are appropriate is to be determined on a case-by-case basis. The Court was not
satisfied that the proceeding could not be ‘fairly and properly conducted’ where it
is necessary for the trial to occur by video link.
8.3 DAVID QUINCE V. ANNABELLE QUINCE AND ANOR54
The Claimant sought to vacate the trial hearing, claiming that it would be unfair if
the trial were to occur by video-link. The Claimant’s counsel sought to cross-
examine the Defendant in a conventional setting, claiming that the Defendant’s
the usual court hours would be adjusted as necessary; and car parking spaces would be procured for
witnesses wishing to drive to court.
52
[2020] FCA 486. See also other cases where an adjournment was denied: JKC Australia LNG v. CH2M
Hill Companies Ltd [2020] WASCA 38; ASIC v. GetSwift Limited [2020] FCA 504; McDougall v.
Nominal Defendant [2020] NSWDC 194.
53
[2020] VSC 242.
54
[2020] NSWSC 326.
demeanour in the atmosphere of a trial concerning allegations of fraud with no

supporting documentary evidence, would be crucial to assessing her credibility.
The Court allowed the adjournment and held that given the allegation of
fraud (and without making a general finding), unfairness would arise for both
parties if the trial were conducted by video-link, as demeanour plays a significant
role in the establishment of serious allegations of this nature where there is limited
corroborative material.
8.4 MOTOROLA SOLUTIONS, INC. V. HYTERA COMMUNICATIONS CORPORATION

LTD (ADJOURNMENT)55
Hytera sought an adjournment, as seven of its witnesses were located in China and
were unable to attend the hearing for cross-examination. Hytera argued that
Chinese procedural laws also prevented them from being cross-examined via
video-conferencing whilst in China without permission from the Chinese state,
which would be unobtainable before the trial date.
Motorola disputed that Chinese law operated this way but accepted that
Australian courts would be unable to secure cross-examination of the witnesses.
Given this difficulty, Motorola indicated that it did not require the seven witnesses
for cross-examination and instead intended to rely on other evidence which contra-
dicted those witnesses’ evidence. Both parties accepted that to do so would breach
the obligation on a party to put their case to an opponent’s witness in cross-
examination which contradicts that witness’ evidence (the rule in Brown v Dunn).
Hytera submitted it would be unfair if the trial were to proceed in these
circumstances because the witnesses’ responses might be persuasive if the matter
were tried in-person. The Court accepted that if the trial proceeded, Hytera would
be exposed to the risk that the Court may not be presented with potentially
‘exculpatory material’.
In ordering that the hearing be vacated, the Court expressed uneasiness about
commencing a hearing in which one possible outcome was the jettisoning of an
important principle of cross-examination, which might result in a mistrial.
Finally, despite concluding that the trial should not proceed, the Court rejected
Hytera’s submission that time zone differences and the problems of conducting a
remote trial rendered the trial inappropriate to proceed. Citing the decision in Capic
v Ford, the Court did not accept that those problems are insurmountable or sufficient
to adjourn a hearing in most cases.
55
[2020] FCA 539.
9 USA
9.1 LEGASPY V. Fin. Indus. Regulatory Auth., Inc.,56
Two of Legaspy’s clients initiated an arbitration against him under the rules of the
Financial Industry Regulatory Authority (FINRA) to recover nearly USD 3 million
for brokerage account losses. Pursuant to FINRA’s rules, the parties signed a uni-
form submission agreement which provided that ‘in the event a hearing is necessary, such
hearing shall be held at a time and place as may be designated by the Director of FINRA’ and
that ‘the arbitration will be conducted in accordance with the FINRA Code of Arbitration
Procedure’. An evidentiary hearing was originally set for August 2020. However, due
to the COVID-19 pandemic, FINRA cancelled the in-person hearing and the
arbitral tribunal subsequently ordered that the hearing be conducted remotely via
Zoom. Legaspy objected, arguing that a Zoom hearing was unworkable because of
the complexity of the issues, the large number of witnesses and documentary
exhibits, and the Claimants’ need for a translator. After the tribunal overruled
Legaspy’s objections, Legaspy filed suit in federal court to enjoin the virtual hearing
on the grounds that it breached the parties’ uniform submission agreement and
FINRA’s Code of Arbitration Procedure and denied Legaspy due process. The court
denied Legaspy’s motions for a temporary restraining order and preliminary injunc-
tion, allowing the virtual arbitration to proceed.
The court held that Legaspy could not succeed on his claim for breach of the
submission agreement or the FINRA Code of Arbitration because, under the
Federal Arbitration Act, procedural questions are committed to the arbitrator and
‘[w]hether FINRA can or should conduct a hearing remotely is a question of procedure that
FINRA, not this court, must decide’. Finally, the court determined that even if it
could review the arbitral panel’s procedural ruling mid-arbitration, the FINRA
Code of Arbitration permitted the panel to order a virtual hearing.
10 AUSTRIA
In a case in the Supreme Court in Austria,57 the applicants contended that a
hearing by videoconference was unfair conduct and had led to unequal treatment
of the parties. Specifically, it contended that there was no control as to what
documents an examined witness was using, nor whether there was another person
in the room. Moreover, there was bias as the tribunal had not made provision for
the protection of witnesses against undue influence and the chosen platform
(WebEx) allowed private messages through the chat function. The court rejected
56
No. 20 C 4700, 2020 WL 4696818 (N.D. Ill. 13 Aug. 2020).
57
Docket 18 ONc 3/20s.
a challenge to the tribunal as ordering a video hearing, when opposed, could not
constitute bias, nor would it violate principles of a fair trial and the right to be
heard. The court accepted that hearing by video was commonplace, both in courts
and arbitration. Ordering a video hearing against the wishes of one party does not
violate Article 6 ECHR as Article 6 provides for not only the right to be heard but
also effective access to justice to enforce or defend rights: video met those
challenges. The court gave examples of measures to mitigate any risk including
the witness looking directly into the camera, as necessary, zooming out and filming
the room and having hands visible.
11 CONCLUSION
Save in exceptional or unusual circumstances, there is a broad global consensus that
there is no right to an in-person hearing. Virtual hearings work perfectly well and
will generally observe due process even in lengthy hearings involving allegations of
fraud. They are probably cheaper, more efficient and more environmentally
friendly. Substantiated cybersecurity concerns may well prove to be the most
legitimate ground for insisting on an in-person hearing.
Some nuance may be lost by the bland two-dimensional image on a computer
screen compared to the ability to see a more holistic view of witnesses in-person.
In-person hearings might just be better, but, in the paraphrased words of Voltaire
achieving the absolute perfection of an in-person hearing may be impossible and
so, as increasing effort results in diminishing returns, further activity becomes
increasingly inefficient and the second-best should be accepted. Virtual hearings
are good enough and are here to stay.
Virtual Hearings in International Arbitration:
Challenges, Solutions, and Threats to
Enforcement
Nika MADYOON*
At the height of the Coronavirus disease 2019 (COVID-19) pandemic, virtual hearings quickly
became a mandatory practice throughout the legal field. In the area of international arbitration, this
transition to virtual procedure was long anticipated due to the costs and complexities inherent to
global disputes. But virtual hearings were never fully championed until there was no other option.
This period of transition has proven instructive. This article seeks to identify the biggest challenges
posed by virtual hearings in the international arbitration context, focusing specifically on issues
surrounding witness testimony, security, and due process. It then considers the potential impacts of
these issues on the enforcement of arbitration awards.
Keywords: Virtual hearing, videoconference, technology, witness, due process, security,
enforcement
1 INTRODUCTION
The Coronavirus disease 2019 (COVID-19) pandemic has altered the dispute resolu-
tion landscape. As shelter-in-place orders and other social distancing measures began
to take effect in jurisdictions across the globe, parties in the midst of legal proceedings
began to face difficult questions about the best way forward. Given that the ability to
hold in-person hearings all but vanished – with no clear return to ‘normal’ on the
horizon – many opted for virtual hearings rather than adjournment. The reasons in
favour of doing so were manifold, ranging from considerable cost savings, to increased
efficiency, to a reduced toll on the environment.1 Indeed, there are many advantages
to holding hearings online, even under non-pandemic circumstances. That is why, in
*
Graduate of Columbia Law School 21, where she focused her studies and research on international
commercial and investment arbitration. She is currently an associate in Gibson Dunn & Crutcher
LLP’s New York office. (310) 729-1310. Email: nam2176@columbia.edu. This article was the
winning submission in the CIArb New York Branch’s 3rd annual International Arbitration Student
Writing Competition.
1
Virtual Hearings – the New Normal, Global Arbitration Review (27 Mar. 2020), https://globalarbitra
tionreview.com/article/1222421/virtual-hearings-%E2%80%93-the-new-normal (accessed 20 Apr.
2020).
Madyoon, Nika. ‘Virtual Hearings in International Arbitration: Challenges, Solutions, and Threats to
Enforcement’. Arbitration: The Int’l J. of Arb., Med. & Dispute Mgmt 87, no. 4 (2021): 597–611.

the case of arbitration, virtual hearings are hardly a new phenomenon. In 2019, about
60% of the 200 hearings and sessions organized by the International Centre for
Settlement of Investment Disputes (ICSID) were conducted via videoconference.2
Many phases of the arbitral process in both commercial and investor-State disputes
were being conducted via telephone or videoconference well before the pandemic
mandated remote participation.
The very essence of international arbitration is that it is a global dispute resolution
mechanism, involving parties from different jurisdictions all over the world. As such,
practitioners have long recognized the tremendous value of technologies that eliminate
the need to convene face-to-face to resolve every issue. Despite this familiarity, however,
the current use of virtual hearings is unprecedented in its scope, and not without its
challenges. Indeed, what we face ‘is not just a difference in degree, but a difference in
kind’.3 Whereas videoconferences had typically been held where it was impractical for
some participants to attend, the pandemic made it impossible or imprudent for any
hearing participants to occupy the same room, even when in the same city.4
Prior to the pandemic, several major arbitration centers had rules providing for
or leaving open the possibility of videoconferencing in some form.5 More recently,
the Korean Commercial Arbitration Board (KCAB) issued its 2018 Seoul Protocol
on Video Conference in International Arbitration in recognition of ‘new powerful
technologies’ that could render arbitration more efficient.6 Despite this openness to
videoconferencing, however, none of these institutions contemplated conducting
full merits hearings by video.7 Indeed, there are important differences between
conducting virtual case management conferences or hearings dedicated exclusively
to legal arguments, on the one hand, and running fully virtual merits hearings, on
the other. The latter involves ‘the ascertainment of facts’ through oral evidence, as
well as determinations of authenticity and credibility.8
2
A Brief Guide to Online Hearings at ICSID, ICSID (23 Mar. 2020), https://icsibidworldbank.org/en/
Pages/News.aspx?CID=362 (accessed 20 Apr. 2020).
3
Virtual hearings, supra n. 1.
4
Navigating Virtual Arbitration Hearings in the Age of COVID-19, American Bar Association (6 May
2020), https://www.americanbar.org/groups/dispute_resolution/resources/resources-for-mediating-
online/navigating-virtual-arbitration-hearings-in-the-age-of-covid-19/ [hereinafter ‘ABA Podcast’]
5
LCIA Arbitration Rules, Art. 19.2; 2017 ICC Arbitration Rules, Art. 24(4), Appendix V Art. 4(2),
Appendix VI Art. 3(5); SIAC Arbitration Rules, Art. 19.1; HKIAC Administered Arbitration Rules,
Art. 13; SCC Arbitration Rules, Art. 23; ICDR Int’l Expedited Proc., Art. 9; ICSID Arbitration
Rules, Arts 19, 36; UNCITRAL Arbitration Rules, Art. 28(4).
6
Korean Commercial Arbitration Board, Seoul Protocol on Video Conferencing in International Arbitration
(6 Nov. 2018) [hereinafter ‘Seoul Protocol’].
7
Jessica Sabbath & Brianna E. Kostecka, INSIGHT: Best Practices for Conducting Remote Arbitration
Hearings, Bloomberg Law (21 Apr. 2020), https://news.bloomberglaw.com/us-law-week/insight-
best-practices-for-conducting-remote-arbitration-hearings (accessed 8 May 2020).
8
Michela D’Avino & Bahaa Ezzelarab, After Covid-19 Lockdown will Virtual Arbitrations Become the New
Normal?, Global Legal Post (21 Apr. 2020), https://www.globallegalpost.com/commentary/after-
VIRTUAL HEARINGS IN INTERNATIONAL ARBITRATION 599
At the outset, it is important to recognize the way major arbitral institutions

have stepped forward to provide guidance during this time, offering virtual hearing
services as well as innovative, detailed protocol to guide participants through these
uncharted circumstances. The Hong Kong International Arbitration Centre
(HKIAC) provides a virtual hearing platform that supports up to eight locations
and ‘integrate[s] all essential document management, including video-conferen-
cing, audio-conferencing, electronic bundles and real-time transcription’.9 The
Singapore International Arbitration Centre (SIAC) has given users access to video-
conferencing facilities, ‘grant[ing] worldwide access to materials on a secure,
cloud-based platform’.10 Some institutions are taking a hands-on approach to
technology management for the entire duration of proceedings, ‘undertaking
tasks akin to what producers do … such as deciding … whose pictures will be
the largest on screen and whose microphones will be muted’.11 The International
Arbitration Centre in London, which offers a technician to assist on-demand, is
just one example.12
Despite the extraordinary efforts of various institutions, the willingness of
tribunals and parties to proceed, and the advanced technology available today,
virtual hearings still present significant challenges. This article seeks to highlight
some of the most pressing concerns associated with these hearings in the arbitration
context. In particular, it will explore problems related to witness testimony, the
security and privacy of proceedings, and procedural fairness – examining the
difficulties in each area, as well as how available technology might be used to
overcome them. Ultimately, it will consider how issues of procedural fairness may
give rise to enforcement challenges, and assess the probable disposition of national
courts to such challenges.
2 WITNESSES
One major area of concern is the giving of evidence by witnesses. Issues in this
category include not only the obvious loss of in-person observation (which many
see as integral to the tribunal’s ability to assess evidence), but also questions about
covid-19-lockdown-will-virtual-arbitrations-become-the-new-normal-86791260/ (accessed 8 May

2020).
9
David W. Rivkin et. al., Conducting International Arbitrations During the COVID-19 Pandemic,
Debevoise & Plimpton (21 Apr. 2020), https://www.debevoise.com/insights/publications/2020/04/
conducting-international-arbitrations-during-covid (accessed 8 May 2020).
10
Ibid.
11
Caroline Simson, Practice Makes Perfect When It Comes To Virtual Hearings, Law360 (15 Apr. 2020),
https://www.law360.com/articles/1263982/practice-makes-perfect-when-it-comes-to-virtual-hear
ings (accessed 6 May 2020).
12
Ibid.
how to sequester witnesses, guard against witness coaching, handle exhibits, and
ensure reliable access to technology.
This is not the first time tribunals are being asked to assess witness credibility
via videoconference. By now, it is common practice to do so where witnesses are
unable to attend hearings. Opponents of the practice – termed ‘traditionalists’—
argue that remote participation impairs the tribunal’s ability to properly assess
testimony, making it more difficult to appreciate body language, facial expressions,
and tonal changes.13 Having the witness, cross-examiner, and arbitrators in differ-
ent rooms diminishes the effectiveness of ‘significant impeachment moments’.14
In-person contact, as they see it, is an ‘ineffable component’, critical to assessing
evidence.15 But technology has advanced to such a point that it is difficult to
maintain such objections. Indeed, high-definition video conferencing provides ‘as
clear a picture of a participant … as we would get if we were sitting right next to
her in the room’, allowing the tribunal to process ‘non-verbal and subliminal
cues’.16
Even where the witness is in full and satisfactory view, however, cross-
examination may still prove difficult from counsel’s perspective, as it requires an
assessment of the tribunal’s receptiveness and often entails interaction with a
second chair. An in-person hearing enables counsel to ‘take the pulse [of] the
room’, and to be aware of when opposing counsel is passing notes, for example.17
Virtually, counsel will likely be looking at a screen of at least five people (three
arbitrators, the witness, and opposing counsel) at once, and they may need to keep
a separate chat window open to confer with their team.18 Some will find,
undoubtedly, that the ‘certain harmony that occurs between the witness, the
cross-examiner, the defense counsel … the arbitrators’ is lost.19
Legitimate concerns remain about other aspects of remote testimony as well.
One example is witness coaching; it is difficult to ascertain with certainty that the
witness is not being instructed by someone else in or near the room from which
they are testifying, or to be sure they are not reading from a hidden script.20 Some
13
Paul Cohen & Sophie Nappert, The March of the Obots, Global Arbitration Review (15 Feb. 2017),
https://globalarbitrationreview.com/article/1080951/the-march-of-the-robots; Virtual Hearings, supra n. 1
(accessed 20 Apr. 2020).
14
D’Avino & Ezzelarab, supra n. 8.
15
Loukas Mistelis, Efficiency. What Else? Efficiency as the Emerging Defining Value of International Arbitration:
Between Systems Theories and Party Autonomy 28 (Queen Mary University of London, School of Law,
Legal Studies Research Paper No. 313/2019).
16
Cohen & Nappert, supra n. 13.
17
Jack Thomas & Leslie Davis, Virtual International Arbitration and the COVID-19 Pandemic: One
Institution’s Approach, JD Supra (15 Apr. 2020), https://www.jdsupra.com/legalnews/virtual-interna
tional-arbitration-and-82491/ (accessed 10 May 2020).
18
ABA Podcast, supra n. 4.
19
Ibid.
20
Virtual Hearings, supra n. 1.
methods for alleviating such concerns include having the witness testify from a
remote hearing room equipped with multiple cameras, providing no access to
mobile devices or other communicative hardware, or having a ‘disinterested third
party’ verify the witness’ surroundings.21
Under stricter shelter-in-place circumstances, however, solutions like these are
exceedingly difficult, if not impossible, to implement. Indeed, the situation in multi-
ple parts of the world at the height of the pandemic meant witnesses had to testify
from their homes (or some other ‘solo’ location).22 In that case, the tribunal may insist
on having a wide-angle view of the room to ensure the witness is not communicating
with anyone. Witnesses can also be equipped with additional hardware so that their
surroundings can be effectively established, such as an additional laptop, a digital
camcorder, or ‘rotating cameras … that can be controlled by the arbitrators’.23 Even
with all of these measures in place, however, some tribunals may remain concerned
about the reliability of the evidence. But when the alternative is no testimony at all,
particularly in the case of critical fact witnesses, they are likely to accept virtual
testimony as satisfactory.
Another important issue raised by remote witness participation relates to the
provision of documents. Questions such as whether impeachment exhibits are
listed prior to the hearing, or whether they are allowed to be used without
being previously listed, will become important given that the witness and examiner
are not in the same place.24 Where the witness is comfortable viewing documents
electronically, all exhibits can be made available through screensharing.25 Some
practitioners have noted, however, that the amount of time it takes to scroll
through long electronic documents can offset the benefits of this approach.26
Additionally, many witnesses prefer to see complete documents in hard copy
form when being questioned about them.27
Providing physical documents raises potential issues when it comes to preser-
ving ‘the surprise element’ that comes from the witness seeing the documents for
the first time.28 Law firms have suggested certain protocol to account for this. For
21
Virtual Hearings in International Arbitration, Shook Hardy & Bacon 6 (13 Apr. 2020).
22
Ibid.
23
Rivkin et. al., supra n. 9; Virtual Hearings in International Arbiration, supra n. 21, at 6.
24
Virtual Hearings in International Arbitration, supra n. 21, at 5.
25
Hogan Lovells Protocol for the Use of Technology in Virtual International Arbitration Hearings, Hogan Lovells
7 (Apr. 2020), https://www.hoganlovells.com/~/media/hogan-lovells/pdf/2020-pdfs/2020_04_09_
hogan_lovells_international_arbitration_digital_hearing_protocols.pdf [hereinafter ‘Hogan Lovells
Protocol’] (accessed 10 May 2020).
26
27
Ibid.; COVID-19: Virtual Court Hearings, McCann Fitzgerald (24 Apr. 2020), https://www.mccann
fitzgerald.com/knowledge/disputes/covid-19-virtual-court-hearings [hereinafter ‘McCann Fitzgerald
Podcast’] (accessed 8 May 2020).
28
example, hard copy documents can be sent to witnesses ‘sealed in a box wrapped in
colored tape’, which witnesses can be required to open on camera immediately
prior to giving testimony.29 Yet another potential safeguard would be to withhold
cross-examination bundles from opposing counsel until thirty minutes before the
beginning of an examination.30
Various institutions have issued guidelines that are instructive with respect to the
breadth of concerns around witnesses providing virtual testimony. The suggested
protocol administered by the American Arbitration Association (AAA) and the
International Centre for Dispute Resolution (ICDR) includes that witnesses should
‘give evidence sitting at an empty desk or table’, that they cannot use a ‘virtual
background’, that they should avoid quick movements and take care to speak
directly to the camera (positioned at face level), and that they are to be sequestered
until their testimony.31 The AAA-ICDR Model Order also provides that the Chair
may, at any point in time, ‘ask a witness to orient his or her webcam to provide a
360-degree view of the remote venue’.32 The HKIAC Guidelines for Virtual
Hearings echo this provision.33 Most institutions that have spoken out on the matter
have emphasized the importance of ‘fair, equal, and reasonable right of access’ for the
parties.34 Procedural fairness is, indeed, a very important issue in the virtual hearings
context, and will be discussed in the ‘Due process’ section of this article, infra.
3 PRIVACY AND SECURITY OF ARBITRAL PROCEEDINGS

Virtual hearings present new challenges when it comes to maintaining the privacy
and security of arbitral proceedings. Article 3 of the International Chamber of
Commerce (ICC) Commission Report on Information Technology in
International Arbitration addresses confidentiality and data integrity issues, includ-
ing ‘the transmission and organization of data to ensure it does not become
compromised at any stage’.35 If the tribunal and parties choose to share information
29
Sabbath & Kostecka, supra n. 7; Hogan Lovells Protocol, supra n. 25, at 7.
30
Sabbath & Kostecka, supra n. 7.
31
AAA-ICDR Model Order and Procedures for a Virtual hearing via Videoconference, ADR ORG 4, https://go.
adr.org/rs/294-SFS-516/images/AAA270_AAA-ICDR%20Model%20Order%20and%20Procedures
%20for%20a%20Virtual%20Hearing%20via%20Videoconference.pdf (accessed 10 May 2020).
32
Ibid.
33
HKIAC Guidelines for Virtual Hearings, Art. 11(b), Hong Kong International Arbitration Centre,
https://www.hkiac.org/sites/default/files/ck_filebrowser/HKIAC%20Guidelines%20for%20Virtual%
20Hearings_0.pdf (accessed 10 May 2020).
34
Seoul Protocol, supra n. 6, Art. 2.1(c).
35
Ricardo Ugarte, Imad Khan & Amanda Jereige, Arbitration Proceedings in the Age Of Virtual Hearing
Rooms, Law 360 (9 Apr. 2020), https://www.law360.com/articles/1261894/arbitration-proceedings-
in-the-age-of-virtual-hearing-rooms (accessed 20 Apr. 2020).
in an online database, for example, they must take steps to ensure the confidenti-
ality of such information.36
Additionally, when a hearing is conducted on a videoconferencing platform,
that platform allows for the sound and images to be captured electronically.37
There are, undoubtedly, certain advantages to this. It means the parties can create
an electronic record at very little cost, which may prove useful as ‘an augmented
form of transcript … when preparing post-hearing briefs or the award’.38 But there
are two sides to this coin. Indeed, ‘videoconferencing necessarily allows the creation
of a recording’, even when it is not desired.39 While parties can choose to disable
the recording feature or emphasize that recordings and screenshots are prohibited,
it is ‘probably impossible’ to prevent participants from capturing their own.40 And
the existence of a recording, whether desired or not, may compromise the con-
fidentiality of the proceedings. Once it exists, those in possession must be vigilant
about maintaining security around locally stored copies.41
While ICSID makes use of Cisco’s Webex, which has ‘high levels of security,
including end-to-end encryption’, tribunals have also been turning to Zoom.42 As
businesses and organizations worldwide made the rapid transition to Zoom meet-
ings in the early months of the pandemic, they were met with an onslaught of
security issues. One bug allowed hackers to ‘seize control of webcams and
microphones’,43 while other problems included leaking users’ email addresses or
leaving video call records ‘unprotected and viewable on the open web’.44 These
issues led multiple states and institutions – including SpaceX, Google, the Federal
Bureau of Investigation (FBI), the United States Senate, Germany, Singapore, and
36
Report of the ICC Commission on Arbitration and ADR Task Force on the Use of Information Technology in
International Arbitration, International Chamber of Commerce 10 (2017), https://iccwbo.org/content/
uploads/sites/3/2017/03/icc-information-technology-in-international-arbitration-icc-arbitration-adr-
commission.pdf (accessed 20 Apr. 2020).
37
Thomas Schultz, Information Technology and Arbitration: A Practitioner’s Guide 55 (Kluwer Law
International 2006).
38
Ibid.; Virtual Hearings, supra n. 1.
39
Schultz, supra n. 37, at 55.
40
AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties, ADR ORG 2, https://go.adr.org/rs/294-SFS-
516/images/AAA268_AAA%20Virtual%20Hearing%20Guide%20for%20Arbitrators%20and%
20Parties.pdf (accessed 10 May 2020); Schultz, supra n. 37, at 55.
41
AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties Utilizing ZOOM, ADR org 5, https://go.
adr.org/rs/294-SFS-516/images/AAA269_AAA%20Virtual%20Hearing%20Guide%20for%
20Arbitrators%20and%20Parties%20Utilizing%20Zoom.pdf [hereinafter ‘AAA-ICDR Zoom Guide’]
42
Simson, supra n. 11.
43
Sean Keane, Zoom Boss Says It’ll Freeze Feature Updates to Address Security Issues, CNET (2 Apr. 2020),
https://www.cnet.com/news/zoom-boss-says-itll-freeze-feature-updates-to-address-security-issues/
44
Rae Hodge, Zoom Security Issues: Zoom Buys Security Company, Aims for End-to-end Encryption, CNET
(8 May 2020), https://www.cnet.com/news/zoom-security-issues-zoom-buys-security-company-
aims-for-end-to-end-encryption/ (accessed 8 May 2020).
Taiwan – to either discourage use of the platform or ban it entirely.45 In February

2021, the United States Federal Trade Commission (FTC) finalized a settlement
with Zoom after an investigation surrounding the company’s encryption
practices.46 The order requires Zoom to institute an information security program
and stop misrepresenting its security features; last year, it allegedly misled users with
statements about its ‘end-to-end 256-bit encryption’, while it was in fact main-
taining encryption keys and ‘stor[ing] unencrypted meeting data on its servers for
up to sixty days’.47 Though the company is expected to make continued security
improvements, it goes without saying that this history of breaches raises concerns
for international arbitration, where ‘protect[ing] the integrity of the proceedings’ is
of great importance.48
Fortunately, there are plenty of precautions that arbitrators and parties can take
to ensure that virtual hearings are guarded with maximum security. The AAA and
ICDR have issued a Virtual Hearing Guide tailored to arbitrators and parties
utilizing Zoom, highlighting the importance of using ‘a unique, automatically
generated meeting ID rather than personal meeting IDs, naming any Waiting
Rooms with meaningful descriptions that do not disclose party identities, and
instructing meeting participants not to forward or share the hearing invitation,
even with intended participants.49 The HKIAC emphasizes the importance of
making virtual break-out rooms password-protected, with separate participant
lists provided to the hearing manager in advance.50 While concerns about con-
fidentiality ‘have not yet been conclusively resolved’,51 arbitrators and parties can
have confidence in the security of proceedings if they are diligent in respecting
these guidelines.
4 DUE PROCESS
Perhaps the most important potential pitfall of virtual hearings is that they present
obstacles in terms of procedural fairness. In arbitration – as in any legal forum – it is
45
Ibid.; Shannon Bond, A Must for Millions, Zoom Has a Dark Side – And an FBI Warning, NPR (3 Apr.
2020), https://www.npr.org/2020/04/03/826129520/a-must-for-millions-zoom-has-a-dark-side-
and-an-fbi-warning (accessed 8 May 2020).
46
Danny Bradbury, FTC Finalizes Settlement with Zoom, ITPRO (2 Feb. 2021), https://www.itpro.co.uk/
security/encryption/358502/ftc-finalizes-settlement-with-zoom (accessed 8 May 2020).
47
Ibid.
48
Hogan Lovells Protocol, supra n. 25, at 3.
49
AAA-ICDR Zoom Guide, supra n. 41, at 2.
50
HKIAC Guidelines for Virtual Hearings, supra n. 33, Art. 9(d).
51
Richard Butt, COVID-19 Disputes: Zooming Ahead – The Challenges of Virtual Hearings in International
Arbitration, MONDAQ (5 May 2020), https://www.mondaq.com/uk/operational-impacts-and-strategy/
928078/covid19-disputes-zooming-ahead-the-challenges-of-virtual-hearings-in-international-arbitra
tion (accessed 10 May 2020).
imperative that there be ‘equality of arms’ between the parties.52 Tribunals must
remain sensitive to each party’s circumstances as they proceed with virtual hear-
ings, as this will be critical to ensuring that each has the ability to fully present its
case.53 This will depend on the resources at each party’s disposal, as well as the
particular social distancing measures in effect in their jurisdiction.
Safeguarding procedural fairness is especially important because it affects the
enforceability of the ultimate award. Indeed, both the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York
Convention’) and the ICSID Convention – as well as regional conventions – recognize
due process grounds for annulment.54 Article V(1)(b) of the New York Convention
provides for annulment where ‘the party against whom the award is invoked … was
… unable to present his case’, while Article 52(1)(d) of the ICSID Convention allows
parties to seek annulment where the tribunal ‘serious[ly] depart[ed] from a funda-
mental rule of procedure’.55 Though the latter does not explicitly state what qualifies
as a ‘fundamental rule of procedure’, basic principles such as the right to be heard and
the right to equal treatment fall within this domain.56 Institutional rules and guidance
on hearings during the COVID-19 pandemic stress the importance of ensuring
fairness to all parties.57
4.1 ADJOURNMENT VS. PROCEEDING VIRTUALLY
The first important decision a tribunal will make with potential due process ramifica-
tions is whether to adjourn the proceedings or continue virtually. The sanctity of
party autonomy in arbitration means that this will be a decision for the parties to
make, in the first instance.58 Thus far, parties have displayed a preference for pushing
forward.59 One recent example involves a $500 million dispute for which a hearing in
52
George Bermann, Dispute Resolution in Pandemic Circumstances, in Law in the Time of COVID-19 167,
173 (Katharina Pistor ed., 2020); Ugarte et. al., supra n. 35.
53
Bermann, supra n. 52, at 173; Fabricio Fortese & Lotta Hemmi, Procedural Fairness and Efficiency in
International Arbitration, 3(1) Groningen J. Int’l L. 112 (2015).
54
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards art.
V(1)(b), 10 June 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter ‘New York Convention’];
Convention on the Settlement of Investment Disputes Between States and Nationals of Other
States Art. 52(1)(d), 14 Oct. 1966, 575 U.N.T.S. 159 [hereinafter ‘ICSID Convention’]; European
Convention on International Commercial Arbitration art. IX-1(b), 7 Jan. 1964, 484 U.N.T.S. 349;
Inter-American Convention on International Commercial Arbitration Art. 5.1.b, 30 Jan. 1975,
1438 U.N.T.S. 245.
55
New York Convention, supra n. 54, art. V(1)(b); ICSID Convention, supra n. 54, Art. 52(1)(d).
56
ICSID, History of the ICSID Convention: Documents Concerning the Origin and the Formulation of the
Convention on the Settlement of Investment Disputes between States and Nationals of Other States 273 (1970).
57
Seoul Protocol, supra n. 6, Art. 2.1(c).
58
McCann Fitzgerald Podcast, supra n. 27.
59
Ibid.
New York was well underway when then-President Donald Trump announced a
national state of emergency, and the participants were all sent home to their respective
jurisdictions.60 When the parties faced a choice between continuing virtually—‘with
all the parties participating by video from their homes or offices’—or adjourning the
proceedings, they decided to press on.61 Counsel for one party cited ‘the potential of
losing the momentum’ as one major reason for the decision.62
In the event that the parties agree to proceed virtually, one way to minimize
enforcement risks is for the parties to sign a joint agreement confirming: (i) that
videoconferencing ‘constitutes an acceptable means of communication permitted
by the applicable rules, including those at the juridical seat of the arbitration’, (ii)
that the parties have agreed to conduct the arbitral hearing via videoconferencing,
and (iii) that neither party ‘will seek to vacate any resultant arbitral award on the
basis that the arbitral hearing was not held in person’.63
Party agreement is certainly not a guarantee, however. And if the tribunal
decides to continue with a virtual hearing absent party agreement or over one
party’s objection, it should be mindful of whether such a decision will imperil the
enforceability of the award. To this end, it should consider the lex arbitri, any
applicable institutional rules, and the particular facts and circumstances of the
case.64 The first question to consider when making the determination of whether
to proceed virtually is whether the case at issue is compatible with the demands of
a virtual hearing. Construction cases ‘involving thousands of documents and tens of
witnesses and experts’ may not be prime candidates, for example, whereas smaller
contract disputes would be easier to manage.65
While deciding to hold virtual hearings may give rise to due process chal-
lenges, the decision to adjourn is likewise not immune from such claims. Indeed,
suspending a hearing indefinitely until the pandemic comes to an end is perhaps
just as likely to give rise to due process claims, as it implicates the parties’ right to
timely resolution of their dispute.66 As always, the determination of how to
proceed involves a delicate balancing—‘due process needs to be balanced against
the arbitrator’s duty to ensure the efficient and timely completion of their mandate
to resolve the dispute’.67
60
Simson, supra n. 11.
61
Ibid.
62
Ibid.
63
Hogan Lovells Protocol, supra n. 25; ABA Podcast, supra n. 4.
64
Mirèze Philippe, Offline or Online? Virtual Hearings or ODR?, Kluwer Arbitration Blog (26 Apr. 2020),
http://arbitrationblog.kluwerarbitration.com/2020/04/26/offline-or-online-virtual-hearings-or-odr/
(accessed 8 May 2020); ABA Podcast, supra n. 4.
65
D’Avino & Ezzelarab, supra n. 8.
66
67
Fortese & Hemmi, supra n. 53, at 116.
4.2 TIME ZONES
Beyond this initial question of whether or not to proceed virtually are more
specific questions about how to handle different aspects of a hearing in light of
each party’s unique circumstances. Remaining attuned to the participants’ needs is
important for purposes of preventing one party from invoking unequal treatment
after the award is rendered. One issue – to which arbitration is no stranger – is that
of time zones and their effect on the hearing schedule. A difference of six hours
‘inevitably means late evenings or early mornings’ for some, while an eight – or
twelve-hour difference ‘would make a regular in-person hearing day a virtual
impossibility’.68 Requiring a witness to testify very late at night or early in the
morning may be unduly burdensome, and could have an adverse impact on the
quality of testimony given. While time zones are often a factor when scheduling
hearings, the obstacle they pose is magnified when every party has to participate from
his or her home; where subgroups cannot convene in the same place, there may be
more time zones represented than would normally be the case. The different demands
on participants’ attention span in the virtual context complicates the matter further.
Indeed, virtual hearings are ‘more demanding in terms of concentration’.69 As a
result, the parties may want to plan for shorter hearing days, which further exacerbates
the issue of participants being in different time zones.70
4.3 ACCESS TO TECHNOLOGY
Additionally, not all jurisdictions are on equal footing when it comes to access to
high-quality internet and reliable facilities.71 In the virtual hearing context, living
in a more ‘connected’ jurisdiction may translate to a relative advantage.72 For
parties located in areas with poor connectivity, ‘the quality and reliability of the
sound and picture will necessarily lag behind that in better serviced areas’.73 It is
important to be cognizant of the different barriers participants may face in order to
access the virtual hearing platform, as ‘access to justice should not be dependent on
access to high quality technology’.74
While the parties and their counsel teams may be insulated from these kinds of
connectivity issues, this may not be true for all participants. One party’s fact or
expert witnesses might be located in areas with less reliable access; this may be the
68
D’Avino & Ezzelarab, supra n. 8; Philippe, supra n. 64.
69
Schultz, supra n. 37, at 57.
70
71
Rivkin et. al., supra n. 9.
72
Butt, supra n. 51.
73
Virtual Hearings, supra n. 1.
74
Butt, supra n. 51.
case in investor-State disputes involving developing countries, for example.

Technological problems that undercut the substance and quality of testimony for
one side, and not the other, have the potential to upset procedural fairness and
trigger claims about a party’s inability to present its case.
4.4 COVID-19 MEASURES
Yet another potential disparity relates to the specific COVID-19 measures that are in
effect in each jurisdiction. Parties will likely be subject to different safety protocols,
and these may change over the course of the proceedings. ‘If a mandatory shelter-in-
place order takes effect in a participant’s jurisdiction’, for example, ‘a procedural
order requiring that a participant connect through a local virtual hearing center …
will become impracticable’.75 As such, ‘verifying that a home connection will serve
as an adequate backup for each participant may be a needed redundancy’.76 If, for
example, restrictions make it such that one party’s team of counsel and representa-
tives is unable to convene in the same place, this may create an uneven playing field
if the counterparty’s country does not take similar measures.77
As the world continues to grapple with this pandemic, much remains uncer-
tain. Perhaps the best tribunals can do is remain flexible and try to account for
disparities that imperil procedural fairness. This can (and indeed, should) be done at
the outset, through procedural orders. One way tribunals can protect their awards
against due process challenges related to technology is by repeatedly checking in
with counsel, ‘seeking confirmation … at the commencement and conclusion of
each session that the party was able to be heard’.78 The tribunal can also impose an
obligation on the parties to raise due process objections immediately should they
arise during a virtual hearing.79 As much as the parties can prepare ahead of time,
however, adjustments will likely have to be made over the course of proceedings.
5 ENFORCEMENT CHALLENGES
In light of the complexity that attends fully remote hearings, and the potential
inequality that comes with participation from multiple jurisdictions, losing parties
may seek to challenge the enforcement of awards on due process grounds. Parties
may base such actions on any of the aforementioned issues – unfair timing, unequal
access to appropriate technology, disparate COVID-19 restrictions – among
75
76
Ibid.
77
D’Avino & Ezzelarab, supra n. 8; Thomas & Davis, supra n. 17.
78
79
Ibid.
others. Whether national courts will be receptive to this line of argument remains
to be seen, given the novelty of fully virtual merits hearings. However, in light of
the general disposition of courts toward actions for non-enforcement or annulment
on due process grounds, this appears unlikely.
First, it is worth noting that national courts show considerable deference to
arbitral awards, and that with regard to New York Convention Article V(1)(b),
‘the enforcement courts in the developed arbitral jurisdictions tend to defer to
arbitrators’ procedural decisions’, not allowing application of Article V to interfere
with the ‘procedural informality and flexibility’ important to arbitration.80 Indeed,
‘the vast majority’ of Article V(1)(b) challenges are unsuccessful.81 Courts take a
fact – and case-specific approach, resulting in ‘a restrictive application’.82
It is also important to note that standards of fairness and due process are left to the
jurisdiction in which enforcement is sought, requiring consideration ‘of local views and
practice’.83 Indeed, the success of challenges depends, in large part, on the enforcing
state’s notions of due process.84 In the United States, this means hearings must ‘meet[] the
minimal requirements of fairness—adequate notice, a hearing on the evidence, and an
impartial decision by the arbitrator [given the parties’ have had] an opportunity to be
heard at a meaningful time and in a meaningful manner’.85
Courts in the United States have been receptive to videoconferencing, both
when it comes to cases before the courts themselves and in the context of
arbitration. Federal Rule of Civil Procedure 43(a) provides that witness testimony
must be taken in open court, but that videoconferencing may be used ‘[f]or good
cause in compelling circumstances and with appropriate safeguards’.86 Courts have
accepted a wide range of reasons as sufficient justification for allowing
videoconferencing,87 and the Fifth Circuit has recognized remote participation as
an adequate substitute to physical presence during hearings.88
80
The Guide to Challenging and Enforcing Arbitration Awards, Global Arbitration Review 128 (J. William
Rowley QC, Emmanuel Gaillard & Gordon E. Kaiser, eds, 2019).
81
UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, at 156, U.N. Sales No. E.16.V.7, 156 (2016) [hereinafter ‘UNCITRAL Guide to
NY Convention’].
82
Ibid.
83
Virtual Arbitral Hearings, COVID-19, and Award Enforcement, Crowell Moring (29 Apr. 2020), https://
www.crowell.com/NewsEvents/AlertsNewsletters/all/Virtual-Arbitral-Hearings-COVID-19-and-
Award-Enforcement [hereinafter ‘Crowell Moring’] (accessed 10 May 2020).
84
The Guide to Challenging and Enforcing Arbitration Awards, supra n. 80, at 128.
85
Crowell Moring, supra n. 83, citing Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, 364 F.3d 274, 298–299 (5th Cir. 2004).
86
FED. R. CIV. P. 43(a).
87
D’Avino & Ezzelarab, supra n. 8, citing Virtual Architecture, Ltd. v. Rick, 2012 WL 388507 (S.D.N.Y.
7 Feb. 2012), In re Rand Int’l Leisure Products, LLC, 2010 WL 2507634 (E.D.N.Y. 16 June 2010);
Matovski v. Matovski, 2007 WL 1575253 (S.D.N.Y. 31 May 2007).
88
UNCITRAL Guide to NY Convention, supra n. 81, at 167, citing Consorcio Rive S.A. de C.V.
(Mexico) v. Briggs of Cancun, Inc. (United States), 2003 WL22838542 (5th Cir. 26 Nov. 2003).
With respect to arbitration, the US District Court for the Southern District of
New York held that a hearing was fundamentally fair even when the arbitration
panel refused to postpone it for an unavailable witness, when it provided the
witness an opportunity to appear by telephonic or video conference.89 And a
more recent S.D.N.Y. decision has shed some light on how courts may handle
upcoming challenges to arbitration awards based on virtual hearings. In Eaton
Partners LLC v. Azimuth Capital Management IV Ltd., the Court found that even
if an arbitrator refused to adjourn a hearing when one of the Respondent’s
witnesses became unavailable, and only allowed the witness to appear by video,
this would not have constituted a deprivation of Azimuth’s right to a fundamen-
tally fair hearing.90
The standard for due process challenges in England is similarly narrow.
Indeed, pursuant to the English Arbitration Act, challenges regarding procedural
irregularity can be brought only where there has been ‘serious irregularity’, and
relief ‘will only be appropriate where the tribunal has gone so wrong in its conduct
of the arbitration, and where its conduct is so far removed from what could
reasonably be expected from the arbitral process, that justice calls out for it to be
corrected’.91 Courts in England have also been receptive to the use of videocon-
ferencing, rejecting arguments levied against videoconferencing that claim it gives
rise to cross-examination issues and makes it difficult to determine credibility. In
Polanski, the court found that videoconference cross-examination was not seen, in
and of itself, to prejudice any party.92 In McGlinn v. Waltham Contractors LTD, the
England and Wales High Court found, more specifically, that ‘no real prejudice to
the defendants has been or … could be identified as a consequence’ of
videoconferencing.93
Based on these standards of ‘minimal fairness’ and ‘serious irregularity’, it
appears unlikely that due process challenges on virtual hearing grounds would be
successful, particularly if they are based on general criticisms of the process rather
than on specific, demonstrable instances of inequality. Indeed, ‘there is an inherent
fairness’ in the fact that both sides had to deal with whatever overall downsides of
virtual hearings the losing party might complain of.94
89
Bisnoff v. King, 154 F. Supp. 2d 630, 639 (S.D.N.Y. 2001).
90
Eaton Partners, LLC v. Azimuth Capital Management IV, Ltd., 2019 WL 5294934 (S.D.N.Y., 18
Oct. 2019), at 4.
91
Crowell Moring, supra n. 83, citing Terna Bahrain Holding Co. v. Ali Marzook Ali Bin Kamil Al
Shamsi et al. (2012) EWHC 3283.
92
D’Avino & Ezzelarab, supra n. 8, citing Polanski v. Conde Nast Publications Ltd. (2005) UKHL 10
(appeal taken from EWCA Civ. 1573).
93
D’Avino & Ezzelarab, supra n. 8, citing McGlinn v. Waltham Contractors LTD (2006) EWHC 2322.
94
This pandemic has forced institutions all over the world to alter their practices
abruptly. This extends to the national courts that would be hearing enforcement
challenges down the line. And ‘during a period where courts are themselves
turning to video conferencing to dispense their own justice, it seems dubious
they would take a different view when considering the effectiveness of virtual
hearings in arbitral proceedings’.95 If arbitrators remain diligent, flexible, and
attuned to the parties’ specific needs throughout the virtual hearing process,
utilizing the guidance and technical assistance offered by institutions and hearing
centers, they are unlikely to make the kinds of grave procedural errors that risk
non-enforcement.
6 CONCLUSION
For all of the growing pains associated with this rapid transition to fully virtual
hearings, the international arbitration community stands to benefit from this
challenge. Long before the COVID-19 pandemic, ‘greater and better use of
technology was already identified as distinctly in arbitration’s best interest and,
according to some, inevitable’.96 As arbitration has drawn increasing criticism for
getting more expensive, slower, and less efficient, technology has continued to
advance and become more widely accessible. This has led some to argue, over the
years, that ‘the economics of dispute resolution’ pointed toward an unavoidable
‘inflexion point’ in the near future, where the use of technology would be
embraced to alter – and improve – international arbitration practice in fundamental
ways.97
This ‘inflexion point’ appears to have arrived, albeit by force rather than
universal will. But perhaps this was just the catalyst the profession needed. The
way virtual hearings proceed – and the way the resultant awards are handled in the
aftermath – will be a ‘testing ground for the viability of these measures in the long
term’.98 While it is highly unlikely that parties and counsel will want to continue
having fully remote hearings with every single participant tuning in from a
different location, the increased familiarity with virtual hearing technology that
they are sure to develop during this time will serve them well once a return to
normal – or the ‘new normal’—becomes a possibility. At that point, with this
knowledge in tow, they can be comfortable applying technology in ways that
make proceedings more efficient and cost-effective, contributing to the advance-
ment of international arbitration as a whole.
95
Crowell Moring, supra n. 83.
96
Bermann, supra n. 52, at 174.
97
Cohen & Nappert, supra n. 13.
98
Rivkin et. al., supra n. 9.
BOOK REVIEWS
International Investment Law, Arnaud de Nanteuil. Edward Elgar. 2020.

464 pp. £120. ISBN: 978-1-78897-588-9.
Professor de Nanteuil’s International Investment Law is a foundational text on
international investment law that deals with the subject in a comprehensive
manner. It is based on its French language precursor, Droit international de l’inves-
tissement, which was originally published by Pedone, a leading French publishing
house, in a first and second edition in 2014 and 2017 respectively. The French
texts have enjoyed great acclaim, especially amongst the student community, as an
introductory tool for the study of international investment law in theory and
practice. It is one of the few texts that makes the subject, which is based on
concepts that are fundamentally different from those that exist in national law,
accessible to an audience without any academic or professional pre-experience in
the field. The English version now makes this tool available to an English-speaking
audience for the first time.
Albeit a French speaker, I have discovered the English version of the text for
my own teaching purposes delivering a course on International Energy Dispute
Resolution at the Universite Saint Joseph, which deals inter alia with the subject
of international investment arbitration and hence international law. Particularly
commendable I find the discussion of the theoretical underpinnings of the
framework of international investment law, which make this text more suitable
than others as a student text. As such, this book is, no doubt, a reliable source that
is capable of serving as a main student text in university courses that deal with the
subject. Even then, given its comprehensive yet concise approach, providing an
overview of the legal and procedural framework of international investment law
in a total of only 422 pages, it also serves as a good refresher for practitioners,
who wish to read up on a particular area of international investment law in
preparation for more detailed research on a particular sub-topic. Given its
mellifluous analytical style, I have found it an easy and enjoyable read on the
subject.
For the avoidance of doubt, the readership of this journal will find this book
rewarding in a number of respects. First, the book dedicates one entire chapter
(Chapter 6) to the settlement of disputes, focusing on investor-State arbitration.
‘Book Review’. Arbitration: The Int’l J. of Arb., Med. & Dispute Mgmt 87, no. 4 (2021): 612–616.
BOOK REVIEW 613
Second, investor-State arbitrations arise from disputes between foreign investors

and host States, which, in turn, are governed by (principles of) international
investment law, a subject that forms the backbone of the book.
In terms of coverage, the book comprises a total of thirteen chapters. Chapter
1 provides a general introduction to the genesis of international investment law,
telling the tale of the development of the subject from the original State contract to
bilateral investment treaties (which nowadays form the bedrock of international
investment disputes and more specifically international investment arbitration).
Chapters 2 and 3 follow with a very useful primer on the domestic and interna-
tional sources of international investment law, such as national investment codes
and domestic investment legislation more generally on the one hand and treaties,
customary international law, the general principles of law and arbitral as well as
international court/ tribunal case law precedent (e.g., International Court of
Justice, the Court of Justice of the European Communities and the Iran-US
Claims Tribunal) on the other. Importantly, Chapter 2 contains an informative
discussion of the application of domestic law by arbitral tribunals from the point of
view of international law. Chapter 4 explores the intersection between interna-
tional and domestic law to the extent relevant to the articulation of international
investment law as well as the vexed topic of treaty versus contract claims. The main
stakeholders of international investment law, the (foreign) investor and the (host)
State, are introduced in Chapter 5, followed by Chapter 6, which – as mentioned
previously – provides an overview of dispute settlement in international invest-
ment law. Chapters 7 through to 9 deal with the substantive protections available
to foreign investors under international investment law. This discussion explores in
all relevant detail non-discrimination protective standards, including national treat-
ment and most-favoured nation clauses (MFN), and the so-called absolute stan-
dards of protection, including fair and equitable treatment (FET), the protection
against expropriation, full protection and security (FPS), followed by a discussion
of a foreign investor’s entitlement to compensation for a host State’s breach of the
various international standards of investment protection. Chapter 10 briefly intro-
duces the development of insurance mechanisms to protect investments and the
main risks covered by these. This is followed in Chapter 11 by a discussion of the
general exceptions to international investment protection by virtue of the limited
scope of the underlying investment instrument or circumstances that preclude
wrongfulness on part of the State actor (such as the state of necessity and force
majeure). Chapters 12 and 13 examine in some further detail the interactions
between investment law, international human rights law and environmental law
on the one hand and European Union law on the other (with all the important
ramifications that these raise for the future of international investment settlement
and in particular arbitration as we know it today). Needless to say, the book

contains the usual front and end matter.
For my part, I am delighted with Professor de Nauteuil’s work and have no
criticism to make of it. Provided it not already is, it deserves to be a standard text for the
study of international investment law, including investment arbitration more specifi-
cally, in English language-taught courses on the subject at universities worldwide.
Apart from its academic value, International Investment Law will also be of use as a
refresher on the subject to international law firms, government officials and policy
makers that depend on an understanding of the subject in their own practices. On that
note, I very much look forward to future editions of Professor de Nauteuil’s work.
Gordon Blanke
gb@blankearbitration.com
The Guide to Energy Arbitrations, J. William Rowley QC, Doak Bishop &
Gordon E. Kaiser eds. 4th edition. Law Business Research. 2020. 258 pp.
£250. ISBN: 978-1-83862-253-4.
This is a title that addresses a highly specialist area of arbitration, written by
specialists for specialists. Edited by leading authorities in the field, each contribu-
tion to this specialist guide has been contributed by specialist contributors, with
specialist professional experience in the field, whether as counsel or arbitrator. The
Guide to Energy Arbitrations is now in its fourth edition and has established itself as
one of the very few coherent and comprehensive treatments of the subject in a
single-volume format. Each edition has so far been seen to improve on the
previous one, this fourth edition adding a chapter on gas supply and liquefied
natural gas (LNG) arbitrations. The importance of arbitration to energy disputes in
today’s global economy is admirably captured by the General Editor, William
Rowley QC, when he states in the Preface to the publication as follows:
[ … ] if a single industry sector can lay claim to parental responsibility for the present
universality of international arbitration as the go-to choice for the resolution of commer-
cial and investor-state disputes, it must be the energy business. It is the poster boy of
arbitral globalisation.1
[…]
Indeed, in the past 50 years or so, following a rash of nationalisations in North Africa, the
Gulf States and parts of Latin America, and the lessons learned in ‘foreign courts”, there is
scarcely a major energy sector contract (whether oil, gas, electric, nuclear, wind or solar)
that does not call for disputes to be resolved before an independent and neutral arbitral
tribunal, seated, where possible, in a neutral, arbitration-friendly place.2
1
J. William Rowley QC, Doak Bishop & Gordon E. Kaiser, The Guide to Energy Arbitrations vii (4th
ed., Law Business Research 2020).
2
Ibid., at viii.
BOOK REVIEW 615
Given the relevance of arbitration as a primary means of dispute resolution in the

energy sector, the importance of this publication can hardly be overstated. In the light
of the general paucity of available material on the subject and the professional
expertise with which it has been put together, this Guide is indispensable for anyone
who is involved in energy arbitrations in the twenty-first century. A word of caution,
however, is in order: albeit that the Guide endeavours to fill a long-time gap in the
literature on international energy arbitration, it is not fully comprehensive, but focuses
on select problem areas of energy arbitration. Other works will have to be consulted
on subjects that energy arbitrations have in common with arbitrations in other energy
sectors. In that sense, this work is only suitable for practitioners with a firm back-
ground in arbitration. This is not intended as a criticism, but to be borne in mind as a
qualifying criterion by any future readership. That said, the group of editors is keen to
keep expanding the coverage of the Guide in future editions. As Rowley states in the
Preface:
In future editions, we hope to fill in important omissions, such as the changing dynamics
of investment cases under the Energy Charter Treaty, including the consequences of the
Achmea decision of the European Court of Justice; the contours of fair and equitable
treatment; injunctions against and the setting aside of awards; bribery and corruption;
sovereign immunity and enforcement issues; force majeure and contractual allocations; and
intellectual property and insurance disputes in the energy sector.3
Leaving these editorial ambitions aside for a moment, the fourth edition as it
currently stands is divided into a total of four parts: Following a general introduc-
tory overview of the international energy industry, Part I deals with investor-State
arbitrations in the energy sector, discussing in two separate chapters the role of the
Energy Charter Treaty and the arbitration of disputes in the renewable energy
industry more specifically. Part II branches out into an assessment of a number of
specialist topics under the umbrella of commercial arbitration in the energy sector,
treating subjects like construction arbitration involving energy facilities, offshore
vessel construction disputes, disputes involving regulated utilities, North Atlantic
Free Trade Agreement (NAFTA) energy arbitrations and gas supply and LNG
arbitrations in separate chapters. Part III places a focus on contractual terms,
exploring gas price arbitrations in three individual, yet complementary chapters.
Part IV provides a discussion on procedural issues in energy arbitrations, presently
limited to one chapter discussing the challenges of parallel proceedings in the event
that consolidation fails. A Conclusion traces future challenges going forward in
dispute resolution in the energy sector.
3
Ibid., at ix.
Overall, The Guide to Energy Arbitrations is an important contribution to arbitra-

tion in the energy sector. It provides initial insights into a number of substantive and
procedural aspects of energy arbitration. That said, as the existing editors have
judiciously recognized, future editions of the work would benefit from wider
coverage. For what it is worth, I would certainly wish to see a more systematic
treatment of the substantive protections that play a role in investment arbitration in
the energy sector, beyond the limits of the Energy Charter Treaty. In addition, Part
IV on procedural issues would evidently benefit from further chapters highlighting
other problem areas in procedure that routinely arise in energy arbitrations. Finally, it
would be helpful to add the usual front and end matter to this publication, such as
case tables and a subject-matter index, which would assist the reader in consulting
and navigating the text on particular points of interest.
Gordon Blanke
gb@blankearbitration.com

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© 2021 Chartered Institute of Arbitrators

Anthony Connerty FCIArb*

This article looks at three matters:

© 2021 Chartered Institute of Arbitrators

2 CLAIMS FOR THE RETURN OF NATIONAL TREASURES AND

2.1 THE RETURN OF LOOTED ARTEFACTS AND ILLEGALLY EXPORTED OBJECTS

2.2 CLAIMS FOR THE RETURN OF STOLEN ART

of European decorative arts built in the twentieth century by a private collector.

2.3 MUSEUMS AND RESTITUTION CLAIMS

3 THE DISPUTE BETWEEN THE DUBLIN CITY GALLERY AND THE

(1) The Story of the Hugh Lane Dispute

3.1 THE STORY of the HUGH LANE DISPUTE17

3.1[a] Hugh Lane: His Early Days

3.1[b] Lane in Search of a Dublin Gallery

President of the Academy for the establishment of a gallery of modern art – as

3.1[c] A Home for the Thirty-Nine Paintings in London

Joseph Duveen to house paintings and drawings by J. M. W. Turner – and modern

3.1[d] Recognition of Lane’s Work: And His London Home

3.2 CONTROVERSY OVER OWNERSHIP

The ownership controversy looks at four matters:

3.2[a] The Involvement of the British and Irish Governments

3.2[a][i] The Taoiseach and the Prime Minister

3.2[a][ii] The President of Ireland

3.2[b] Lane’s Life in London and Dublin

3.2[c] The Nature of the Lane Controversy

3.2[d] Leave Aside the Strict Legal Position

3.3 MECHANISMS FOR RESOLVING THE HUGH LANE DISPUTE

such as arbitration, conciliation/mediation assist? Would such an approach assist in

3.3[a][i] The Alabama Claims Commission21

3.3[b][i] UK/Norway Framework Agreement:

3.3[c] Commission of Conciliation to Settle the Hugh Lane Dispute?

4 METHODS FOR DEALING WITH THE SETTLEMENT OF ART-

4.2 ARBITRATION AND ‘MULTI-STEP CLAUSES’: AUCTION HOUSES AND

Arbitration is an alternative method of resolving art–law disputes. There are

A contract of sale might provide for disputes to be resolved by arbitra-

4.5 CLAIMS COMMISSION

Paintings permanently at the National Gallery

© 2021 Chartered Institute of Arbitrators

by concluding it was premature to discuss.3 In 2017, the United Nations Commission

2 THE REASONS FOR CREATING AN APPELLATE SYSTEM AND

2.1[a] Consistency and Predictability

Additionally, pursuing consistency on standards such as FET under different

2.1[b] State’s Right to Interpret a Treaty

the tribunal’s power to independently interpret a treaty and apply it to a pending

2.1[c] Arbitrators’ Impartiality and Independence

2.1[d] Parallel Proceedings

2.2 THE EUROPEAN UNION’S REFORM PROPOSAL

The EU proposes creation of a single MIC, an international court to adjudicate

3 ESTABLISHING THE MIC

3.1 STAND-ALONE APPELLATE BODY OR MIC SYSTEM?

3.1[a] Challenge Process of an Arbitral Tribunal

In the case of a stand-alone appellate tribunal, the institutional structure to

3.1[b] Enforcement of Appellate Awards

3.1[b][i] Enforceability of the Appellate Award Under the New York

process can be considered as an internal appellate review.76 Commentators noted

the New York Convention.86 Thus, proponents focus on voluntary submission of

3.1[b][ii] Enforceability of the Appellate Award Under the ICSID Convention

Member States, then, regardless of what appeal mechanism is chosen, enforceability

3.1[c] Consistency and Predictability

3.2 TOWARD A SINGLE MIC SYSTEM

regulating parallel proceedings and promoting consistency on the challenge

4 CREATING THE MIC SYSTEM: FURTHER CONSIDERATIONS