FID Recht - Schiedsgerichtsbarkeit

Litigating genocide before the International Court of Justice

2026-09-02T00:00:00+00:00

Abstract

This article examines the recent emergence of strategic genocide litigation before the International Court of Justice. Cases such as The Gambia v Myanmar, South Africa v Israel, and Nicaragua v Germany illustrate a shift towards public-interest or lawfare-type proceedings initiated by states that are not themselves directly injured. These judicial proceedings pursue multiple objectives and address a broad range of audiences beyond the parties to the dispute, including other governments, international organizations, civil society, and global public opinion. Against this backdrop, the article analyses both the procedural framework governing dispute settlement before the International Court of Justice as well as the substantive provisions of the Genocide Convention, assessing their suitability for advancing the goals of strategic genocide litigation. It highlights the permissive jurisdictional basis provided by Article IX of the Genocide Convention, the erga omnes partes character of the obligations involved, and the particular significance of provisional measures. Substantively, the article identifies a fundamental tension between the expansive scope of obligations under the Genocide Convention and the narrow confines of the legal concept of genocide itself, most notably, the high threshold required to prove genocidal intent. It concludes that while genocide litigation possesses both preventive and symbolic potential, its overemphasis risks diverting attention from other grave international crimes and from the broader pursuit of accountability and humanitarian protection.

The contested advisory jurisdiction as a full tribunal of ITLOS—remaining challenges for persuasion and authorization

2026-08-31T00:00:00+00:00

Abstract

There is no explicit clause in the United Nations Convention on the Law of the Sea regulating the advisory jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) as a full tribunal. Notwithstanding this absence, ITLOS has rendered advisory opinions, including in the latest Climate Change case. This article critically examines judicial reasoning of ITLOS in recent cases, given the consensual nature of all international judicial jurisdiction. Accordingly, this article delves into the tension between the consensual nature of international advisory jurisdiction and the recent jurisprudence of ITLOS in exercising its general advisory opinion. This article further analyses two primary arguments regarding the general advisory jurisdiction of ITLOS—the interpreted meaning of Article 21 of the Statute and the exercise of inherent powers. Lastly, legal implications of the remaining questions that could affect the legitimacy of ITLOS’s general advisory function in the future are explored.

Issue Information

2026-09-01T14:37:51+00:00

Conflict Resolution Quarterly, Volume 44, Issue 1, Page 1-4, Fall 2026.

Alternative dispute resolution mechanisms at the World Trade Organization: Insights on Current Developments

2026-08-31T00:00:00+00:00

Abstract

At the World Trade Organization (WTO), many trade disputes could be more effectively and suitably resolved through alternative dispute resolution (ADR) mechanisms. Article 5 of the DSU explicitly provides for the use of good offices, conciliation, and mediation as ADR methods. However, despite the WTO’s 30 years of existence, these procedures have been rarely utilized. This trend might and ought to change. During the Informal Dispute Settlement Reform Process, WTO delegates recognized the need to encourage and facilitate greater use of ADRs and arbitration. This article aims to explain the rationale behind WTO Members’ introduction of a prominent chapter on ADRs in the Draft Consolidated Text emerging from that process. It also seeks to demystify ADRs as a tool for resolving trade disputes, advocating for their increased use to enhance the efficiency and effectiveness of the WTO’s dispute settlement system.

Introduction to AI Virtual Special Issue

2026-08-28T12:30:19+00:00

Conflict Resolution Quarterly, EarlyView.

The role of the International Court of Justice in the reinforcement of the international environmental rule of law

2026-08-19T00:00:00+00:00

Abstract

This article focuses on the role of the International Court of Justice in developing and strengthening international environmental obligations, and what implications the reasoning employed by the Court has for the future development of international environmental law. We argue that through the use of specific techniques of legal reasoning, the Court has shown a willingness to embrace the flexibility of the legal framework in order to ensure that environmental obligations are not devoid of substance and states can be held to account when they fail to comply with their obligations. In particular, through its invocation of general principles and related interstitial norms in the identification and interpretation of legal rules, the Court has contributed to promoting the international environmental rule of law, whereby compliance of states with minimum standards of environmental protection can be objectively determined, and appropriate remedies can be applied.

Cooling-off periods: problems and solutions for making consultations appropriate ADR mechanisms for investor–State disputes

2026-08-14T00:00:00+00:00

Abstract

Most investor–State dispute settlement (ISDS) provisions included in international investment agreements have ‘cooling-off provisions’, requiring an investor and the host State to attempt to settle the dispute through negotiations or consultations before resorting to investor–State arbitration. In spite of their popularity, these provisions often do not work as an effective alternative dispute resolution (ADR) mechanism, because of the behaviour of the parties during the cooling-off period and also because of arbitral tribunals’ conflicting interpretation of these clauses’ nature, prerequisites, requirements and legal effect. This article evaluates whether cooling-off periods can function as effective ADR mechanisms in ISDS, by identifying current barriers and exploring possible solutions, drawing from empirical evidence and general international law. A proper analysis and application of cooling-off provisions would be beneficial for both investors and States, as they would save time and resources by settling or reducing disputes, and achieving a more effective path to an ultimate resolution.

The lawfulness of countermeasures taken in response to a breach of provisional measures

2026-08-12T00:00:00+00:00

Abstract

In 2001, the International Court of Justice (ICJ, the Court) put to bed eight decades of debate, deciding in LaGrand (Germany v United States of America) that provisional measures indicated under Article 41 of its Statute are binding. Taken to its logical conclusion, this presumably means a breach of provisional measures gives rise to State responsibility and its attendant consequences. However, scholars maintain that no coherent or comprehensive regime of responsibility for provisional measure breaches has emerged post-LaGrand. Indeed, unlike the literature on the test for the initial indication of such measures, limited attention has been paid to the legal consequences of their breach. Even less attention has been paid to the implementation of responsibility on an inter-State and extra-judicial level. This article asks one of the most controversial questions in this regard: can countermeasures be taken in response to a breach of the ICJ’s provisional measures?

The Effects of Third‐Party Mediators' Identity and Avoidance of Right‐Wing News on Jewish‐Israeli Support for Conflict Resolution

2026-08-04T07:27:31+00:00

ABSTRACT

This study focuses, in the context of the Israeli-Palestinian conflict and the Israel-Hamas war, on a specific pattern of news-consumption—avoidance of hyper-partisan right- wing news, while examining its consequences for perceptual-cognitive biases that constitute barriers to conflict resolution. Consistent with the reactive devaluation bias which demonstrates that support for peace plans varies according to the proposer's identity, we hypothesized that this effect would extend to third-party mediators. We further hypothesized that the magnitude of this effect would depend on participants' information environment, as shaped by the extent to which they avoid hyper-partisan right-wing news. Jewish-Israeli participants (N = 901) were randomly assigned to evaluate an identical peace agreement attributed to U.S. President Donald Trump or to Saudi Crown Prince Mohammed Bin Salman. Analyses examined main effects of mediator identity and avoidance of Israeli right-wing news, as well as their interaction. Results supported both hypotheses. Our findings extend previous research on reactive devaluation by demonstrating that susceptibility to mediator identity bias varies according to individuals' news avoidance patterns. Theoretical and practical implications are discussed.

Resolving Conflict in the Workplace: A Case Study of the Port Authority of Douala

2026-07-29T06:09:43+00:00

ABSTRACT

It is essential to verify whether one has been granted “consent” from the participants and to comprehend the ramifications of this consent. This position is known as “epistemologically privileged” because not all specifics can be articulated, recounted, and reconstructed. The goal is not to establish this claim but to illustrate that one can embody a combination of spy, observer, enthusiast, and participant. A qualitative research study was conducted to gain insight into the actions of employees at the Port Authority of Douala, keeping the principle of saturation in focus, which is a crucial element when considering sample size (a posteriori). The inquirer and the “object” of inquiry interacted to influence one another, given that knower and known are inextricably linked. After 8 months of observation, the results captured nine significant themes and the major areas of conflict were: tribalism, management style, and the organigram. Acknowledging the Hawthorne effect, all participants described their relationship with others as cordial and highlighted the role of leadership during stressful periods.

Does Peace Build Human Capital? Evidence From Colombia's Peace Agreement

2026-07-28T13:01:22+00:00

ABSTRACT

Does the cessation of armed conflict improve education, and through what pathway? We study Colombia's 2016 peace agreement with the FARC (Revolutionary Armed Forces of Colombia), which sharply and differentially reduced violence in municipalities with a historically high guerrilla presence. We develop a framework distinguishing two margins of human capital—educational participation (whether children are in school) and learning (how much they learn)—and argue that peace acts on participation quickly and broadly, but on learning only where the security improvement is deep enough to restore the conditions for schooling (teachers, infrastructure, and safety). Testing this with a difference-in-differences design across 1122 municipalities, combining georeferenced conflict data with standardized test scores (Saber 11) and enrollment records, we find three things. First, participation rose: net enrollment in high-conflict municipalities increased from 2018 onward, after a transitional dip in 2017. Second, the average effect on learning is a precise null that conceals strong regional heterogeneity: in the remote, formerly FARC-dominated Amazon, test scores rose significantly, while the urbanized Andean region shows no gain. Third, participation and learning gains move together across regions (r = 0.86), and the average learning null is not an artifact of a changing exam pool. Peace builds human capital, but the learning dividend is conditional on rebuilding the local capacity to teach. We draw out implications for mediators, donors, and post-conflict governments.

Everyday Peace at the Border: Kinship, Moral Economy, and Local Mediation in Rote Ndao's Interfaith Tolerance

2026-07-28T12:41:02+00:00

ABSTRACT

This article examines Rote Ndao, an Indonesian outermost-island district, as a case of negotiated everyday peace rather than conflict-free harmony. It asks how cross-faith kinship, moral economy, and local mediation channels contain potential conflict triggers related to shared space, food rules, worship security, religious calendars, and external political or digital narratives. The study contributes to conflict-resolution scholarship by shifting attention from post-violence settlement to low-intensity prevention and by clarifying how communities keep disagreements from escalating before formal dispute procedures are activated. Based on multi-site qualitative fieldwork in Ba'a, Oenggae, Olafuliha'a, and Batu Tua, this study combines coded interviews, observation, and community documents. Reflexive thematic analysis links practice-level evidence with the frameworks of everyday peace, intergroup contact, boundary making, and moral economy, while also considering how public narratives of harmony may reflect social desirability and local moral expectations. The findings identify three connected pathways: first, kinship and intermarriage create interpersonal obligations; second, cooperative work and ritual redistribution raise the material and reputational costs of conflict; and third, formal and informal mediation translates theological, customary, and administrative languages into workable compromise. The article develops a pathway model of negotiated everyday peace for resource-dependent island settings and offers practical indicators for village- and subdistrict-level conflict prevention.

The use of the International Court of Justice’s obiter dicta as building blocks in international law

2026-07-27T00:00:00+00:00

Abstract

This article argues that the ICJ’s jurisprudence includes a special kind of obiter dicta that acts as a building block capable of being taken up and in international law as an encapsulation of current law, even where it changes or develops existing rules or conceptions of the law as a whole. Such dicta are decontextualized and often come to mean something other than what was originally intended. The production of these building blocks is sometimes witting on the part of the Court and sometimes not. Further, the factors that determine which dicta are ultimately reused are not, as commonly thought, bindingness or even persuasiveness in terms of reasoning. Rather, the building-block dicta that are reused tell us a lot about the Court’s own perception of its role, the broader dynamics of the specific moment, and the status and authority of the Court as an institution. This article argues that the ICJ’s jurisprudence includes a special kind of obiter dicta that act as building blocks that are capable of being taken up in international law as an encapsulation of current law, even where it changes or develops existing rules or conceptions of the law as a whole.

The legacy of the ICJ’s Western Sahara opinion 50 years after its adoption

2026-07-22T00:00:00+00:00

Abstract

In 2025 the International Court of Justice (ICJ) marks 50 years since its advisory opinion on Western Sahara, which confirmed the Ṣaḥrāwī people’s right to self-determination in respect of the territory’s status. Although non-binding, advisory opinions shape legal narratives and influence the development of customary international law. Western Sahara has been repeatedly cited in scholarly discussions as a ‘landmark opinion’ central to debates on decolonization, self-determination, and the status of Non-Self-Governing Territories. Yet, five decades later, Morocco still controls most of Western Sahara, hundreds of thousands of Ṣaḥrāwīs are displaced in refugee camps in Algeria, and low-intensity hostilities have resumed between the Front Polisario and the Moroccan government. A growing number of states and the UN Security Council have endorsed Morocco’s Autonomy Plan for Western Sahara, and the European Commission continues to negotiate trade agreements with Morocco that include Western Saharan goods without the consent of the Ṣaḥrāwī people. This paper examines the legacy of the ICJ advisory opinion on Western Sahara, 50 years after its adoption, and concludes that the opinion has had a more significant impact on the expansion of the Court’s jurisdictional scope than on substantive decolonization and self-determination law. This is evident in the citation practices of subsequent jurisprudence, which invoke the opinion for more procedural than substantive propositions. While the advisory opinion has unquestionably contributed to the development of international law, it stopped short of confronting the doctrine of territorial acquisition through occupation, delivering a narrow finding that left the Eurocentric criteria for sovereignty intact. The legacy of the advisory opinion, with its inability to materially resolve the underlying dispute, unveils the persistent difficulty of turning legal principles into concrete outcomes amid enduring tensions between legal norms and geopolitical realities, particularly when it comes to heavily politicized territorial disputes.

The limits of jurisdiction ratione materiae under compromissory clauses: some reflections on recent developments before the International Court of Justice

2026-07-21T00:00:00+00:00

Abstract

The principle of State consent to jurisdiction entails important limitations for the submission of legal disputes to international courts and tribunals, including the International Court of Justice. For each case that is brought before the Court, an appropriate basis of jurisdiction must exist. This contribution analyses one such basis of jurisdiction that is regularly invoked before the Court—compromissory clauses in treaties—and the limits of the Court’s jurisdiction ratione materiae in this context. It focuses on certain types of arguments advanced by States that, in one way or another, could have resulted in an expansion of those limits, notably by allowing the Court to pass judgment on matters that were not governed by the specific treaty being invoked, but other rules of international law, as well as the Court’s approach when addressing those arguments. In balance, the Court can be said to have been careful when dealing with attempts to expand its jurisdiction ratione materiae, thereby ensuring a proper operation of the system of compromissory clauses.

Judge Not, and You Will Not be Judged: on the agreements not to litigate in international and national tribunals

2026-07-17T00:00:00+00:00

Abstract

The article aims to clarify the legal effect of contractual commitments not to litigate existing or potential disputes. Across a range of contexts—commercial, tort, employment, and others—agreements frequently contain clauses that expressly preclude parties from pursuing judicial remedies against one another. In various legal systems, such clauses are known as waivers, releases, or covenants not to sue. Similar arrangements also play an indispensable role in interstate conflict settlement. However, uncertainty persists as to whether these clauses should compel a tribunal to dismiss an application filed in breach of them, especially where public interest is at stake. The article advances the claim that commitments not to litigate serve a legitimate aim and, as a general rule rather than an exception, should be recognized by national and international tribunals, including the European Court of Human Rights, as a valid limitation on the right of access to a court.

Keeping it quiet? A social contract theory of confidentiality in arbitration

2026-07-17T00:00:00+00:00

Abstract

Confidentiality is presented as a defining feature of international commercial arbitration, although its legal basis and enforceability vary across jurisdictions and institutions. This article argues that confidentiality is not an inherent attribute of arbitration, but a constructed consent-based procedural norm. Drawing on social contract theory, the article conceptualizes arbitration as a form of private legal ordering in which parties delegate procedural authority to secure mutually advantageous outcomes. From this perspective, confidentiality derives its legitimacy from consent and institutional design, but remains a conditional obligation. The article advances a thematic comparative analysis identifying two models of confidentiality: presumptive regimes, where confidentiality operates as a default, and opt-in regimes, where it arises through express agreement. Both models recognize common limits grounded in consent, legal obligation, and public interest. The article concludes by advancing a contractarian account of an optimum level of confidentiality that is presumptive but qualified, autonomy-based yet normatively constrained.

Class arbitrations under the UNCITRAL Model Law: re-thinking party consent

2026-06-29T00:00:00+00:00

Abstract

Mandatory arbitration agreements in consumer and employment contracts have become a procedural trap: collective redress for vulnerable claimants crumbles as they are left stranded between barred class/representative actions and prohibitively expensive individual arbitration. While the United States has attempted to navigate this trap through the introduction of class arbitration, UNCITRAL Model Law jurisdictions lag behind. This paper seeks to explore how Model Law jurisdictions can embrace class arbitration even when the arbitration agreement is silent.By dissecting the United States’ approach to class arbitration, this paper challenges the assumption that class arbitration requires parties’ express consent to class arbitration. Instead, it re-thinks parties’ consent within the UNCITRAL Model Law’s framework and its pro-arbitration stance, demonstrating how tribunals can infer consent to class arbitration. The paper proposes pragmatic solutions: judicial contractual interpretive tools, institutional rulemaking, and legislative reforms, that equip Model Law jurisdictions to adopt class arbitration.

The inefficiency of efficiency tools: safeguarding natural justice in arbitral award writing

2026-06-18T00:00:00+00:00

Abstract

Successful challenges to arbitral awards based on breaches of natural justice are rare. Violations of natural justice triggered by arbitral tribunals copying the parties’ submissions when drafting awards are even more uncommon. While ‘copying and pasting’ from submissions, evidence, and procedural orders for efficiency purposes is not unheard of, doing so indiscriminately can compromise the integrity of the arbitral process. This practice may raise questions about authorship or create an appearance of bias or unfairness. This paper examines one of these unusual cases and explores the acceptable standards for ‘copy and paste’ in adjudicatory decision-making.

Arbitrators under attack: some ethical considerations

2026-06-16T00:00:00+00:00

ABSTRACT

This paper was initially presented orally as the keynote address of the Chartered Institute of Arbitrators, Canada Branch, programme at Canada Arbitration Week in Toronto on 17 October 2023. The address explores how sitting arbitrators shall respond when a party, or persons evidently aligned with a party, make use of bespoke websites or social media to lodge false and defamatory accusations of arbitrator misconduct that, if true, would warrant disqualification and/or vacatur of any awards already issued on the basis of bias. Among the core observations is that the falsely accused arbitrator ought not to resign—as this is precisely the objective sought by the publisher of the accusations, and the tactic, if successful, seriously threatens the integrity of the arbitral process. A corollary of this observation is that the displeasure naturally felt by the accused arbitrator ought not be generally regarded by the institutions that regulate arbitrator conduct—whether provider organizations or courts—as a species of bias but as a normal human reaction to untoward behaviour by a party or its agents in the course of the proceedings.

Between Scylla and Charybdis: navigating uncharted international waters post-Sian Participation

2026-06-12T00:00:00+00:00

Abstract

In Hyalroute Communication Group Limited v Industrial and Commercial Bank of China (Asia) Limited [2025] HKCFI 2417, the Hong Kong Court of First Instance refused to grant an anti-suit injunction to restrain Cayman winding-up proceedings where the underlying dispute is subject to an arbitration agreement in favour of HKIAC arbitration. This note critically examines the case that was decided by construing the arbitration agreement, in light of the divergence in approaches over the interaction between dispute resolution clauses and winding-up proceedings across common law jurisdictions in the aftermath of Sian Participation Corp (In Liquidation) v Halimeda International Ltd [2024] UKPC 16, [2024] 3 WLR 937, and concludes by noting potential public policy considerations and dispute-avoidance drafting techniques.

Resolving disputes on the evidence: to what extent arbitral fact-finding might fall within the supervisory jurisdiction of English courts

2026-06-12T00:00:00+00:00

Abstract

The note considers a recent decision of the English High Court on a challenge to an arbitration award under section 68 of the Arbitration Act 1996. The decision reaffirms judicial respect for arbitral awards and discourages challenges for mere infelicities of language. The court's further remarks provide a springboard for a discussion of case law on s 69 appeals on the grounds of misapplication of the burden of proof, which have the character of appeals against arbitral fact-finding.

The New York Convention: a shield, not a sword

2026-06-12T00:00:00+00:00

In law schools across the country, law students are taught, early on in their studies, that the equitable doctrine of promissory estoppel is a shield, not a sword.¹¹ In other words, it can only be used as a defence to a claim and not to establish a cause of action. Following the decision of the Court of Appeal in Star Hydro Power Limited v National Transmission and Despatch Company Limited,²² this is a metaphor that arbitration practitioners will now have to learn as well. This is because, in Star Hydro, the Court of Appeal held that the New York Convention could only be used defensively, as a ‘shield’ against enforcement action taken in a Convention State. The Convention could not be used as a ‘sword’ to disguise a thinly veiled attempt to challenge the jurisdiction of the arbitral tribunal. In those latter cases, the English Court, as the curial court, would have no hesitation in granting injunctive relief to protect the parties’ agreement to arbitrate.

Why good friction matters in international arbitration in the age of AI

2026-06-12T00:00:00+00:00

Abstract

This article examines the growing role of artificial intelligence (AI) in international arbitration and argues that efficiency without engagement threatens the foundations of legal judgment. Drawing on cognitive load theory, it distinguishes between extraneous, intrinsic, and germane cognitive load. It shows that while AI can usefully reduce unnecessary burdens, it also risks eliminating the productive mental effort – what this paper calls ‘good friction’ – through which counsel and arbitrators build genuine understanding. The analysis demonstrates how friction underpins advocacy, credibility, and strategic foresight for counsel, while ensuring independence and critical reasoning for arbitrators. Overreliance on AI may erode these processes, producing outcomes that are procedurally sound yet substantively fragile. The article also examines the risks of delegating judgment to AI, and argues that without human-framed questions and interpretive frameworks, AI-generated answers remain largely devoid of normative and legal meaning. Ultimately, the article contends that AI should be integrated in a way that removes bad friction while preserving good friction, the effortful processes that transform information into judgment. Only by maintaining this balance can arbitration remain both efficient and legitimate in the age of AI.

The P v D judgment and the delicate balance in cross-examination: new developments six years on

2026-06-12T00:00:00+00:00

Abstract

This case comment examines P v D ([2019] EWHC 1277 (Comm)), in which the English Commercial Court set aside an arbitral award under section 68(2)(a) of the Arbitration Act 1996—on the ground that the tribunal had breached its duty of procedural fairness under section 33—by making adverse credibility findings against a witness who had not been cross-examined on the core issue in dispute. The comment then traces how three subsequent decisions—Obrascon (2019), Tenke Fungurume (2021), and BPY v MXV (2023)—have treated the precedent, finding a consistent pattern of factual distinction rather than legal rejection. Most significantly, BPY v MXV explicitly endorsed the fairness principle as uncontroversial. The comment concludes that P v D is emerging as binding good law, establishing that arbitrators seated in England breach their section 33 duty—with the consequence of annulment under section 68—when they base adverse credibility findings on matters never put to the witness in cross-examination, a principle with potential reach beyond UK-seated proceedings.

Challenging investment-treaty arbitral awards in domestic courts on account of investor misconduct

2026-06-11T00:00:00+00:00

Abstract

In investment-treaty arbitrations, strong evidence of investor misconduct is like dynamite for States: it can destroy investors’ claims. For this reason, allegations of investor misconduct are frequently made in investment-treaty arbitrations. Most States, however, fire blanks with these attempts to blow up investors’ claims. Arbitral tribunals rarely side with States. But could they find more receptive audiences in domestic courts? This article investigates this question. After explaining the mechanics relating to how States can bring investor misconduct–grounded challenges against investment-treaty arbitral awards before domestic courts, it surveys the cases where States have filed such challenges. That survey catalogues their successes and failures, and details the jurisprudence that is emerging from those cases. Contrary to what States might hope, domestic courts are rarely receptive to their allegations of investor misconduct. And potentially more consequentially for States, they are developing jurisprudence that generally favours investors.

Arbitral secretaries and the validity of awards: a doctrinal and case law-based evaluation of challenges based on undisclosed assistance

2026-06-09T00:00:00+00:00

Abstract

Arbitral secretaries, once confined to clerical duties, now often assist with legal research and award preparation raising acute questions about the non-delegation doctrine and the integrity of awards. This article examines that evolution through a three-pillar approach: (i) doctrinal analysis of intuitu personae and the limits on delegation; (ii) a targeted review of leading decisions addressing secretarial involvement; and (iii) a comparative appraisal of six institutional frameworks (ICC, ICSID, LCIA, HKIAC, CIArb, ASA). Synthesizing these sources, the study distils a ‘disclosure–impact–consent’ standard: an award is vulnerable only where undisclosed secretarial involvement penetrates the tribunal's core deliberative or decisional functions without informed party consent. The analysis also maps converging red lines across rules and courts no delegation of decision-making, ring-fenced deliberations, transparency about identity and tasks, and arbitrators’ retained ‘personal intellectual responsibility’. Properly supervised secretaries emerge as force-multipliers rather than ‘fourth arbitrators’. Practically, the article distils this into a short ‘disclosure–impact–consent’ checklist that arbitrators can apply to define tasks, record supervision, and document informed consent, thereby minimizing due process objections and enforceability risk while preserving efficiency.

Nullity at the Enforcement Stage: A new challenge to arbitral awards in India post-Electrosteel

2026-06-02T00:00:00+00:00

Abstract

The finality of arbitral awards in India is grounded in the limited and exclusive challenge mechanism under Section 34 of the Arbitration and Conciliation Act, 1996. However, the recent Supreme Court decision in Electrosteel Steel Ltd v Ispat Carrier Pvt Ltd has introduced a concerning shift by allowing arbitral awards to be challenged at the enforcement stage on the ground of ‘nullity’ under Section 47 of the Civil Procedure Code. This article critically examines the Court’s reasoning in Electrosteel, particularly its distinction between a Section 34 challenge and an execution-stage objection based on jurisdictional nullity. It argues that while the Court rightly identified the award as void ab initio due to contravention of the Insolvency and Bankruptcy Code, 2016, its broader ruling risks diluting the finality of awards by permitting belated challenges that should have been raised earlier in the arbitral process. The article traces the narrow contours of ‘nullity’ as an exception, stressing the need for a strict threshold that prevents the concept from evolving into a second ‘public policy’-like escape route. The article concludes by advocating a jurisprudence that recognizes nullity only in exceptional cases, and warns against its misuse as a backdoor to circumvent Section 34.

The foreign act of state doctrine and international arbitration

2026-05-26T00:00:00+00:00

Abstract

The foreign act of State doctrine limits the subject-matter jurisdiction of English (and some other common law) courts to sit in judgment on the sovereign acts of foreign States. The article examines a largely novel question whether the doctrine also applies in international arbitration. Can the doctrine limit the power of tribunals to adjudicate on State acts? Can it be raised as a ground for challenging an arbitral award or as a defence against the enforcement of arbitration agreements and arbitral awards? The article discusses the conflicting English case law and argues that the constitutional and policy reasons underpinning the doctrine—respect, comity, non-interference/non-intervention, and separation of powers—are inapplicable to arbitration such that the doctrine should not apply in arbitration. The article also offers ways to mitigate the risk of the doctrine being found to apply in arbitration, by offering contractual language to exclude its applicability. A comparative analysis reveals that major jurisdictions like the US and France reject the doctrine's applicability in arbitration. It is argued that this could be a relevant factor in the choice of the arbitral seat, mitigating against (or in favour of) London as a seat in cases involving challenges to acts of State.

Investment dispute settlement reform in Africa: a proposal for an AfCFTA investment-related dispute settlement system

2026-03-10T00:00:00+00:00

Abstract

Investor-state arbitration (ISA) has been criticized on numerous grounds, sparking debate over whether reform is necessary and what it should entail. Amid the debate, states are beginning to adopt various institutional mechanisms, either as a complement or alternative to ISA. This article focuses on Africa, examining one of the emerging institutional choices – a complementary mechanism – that requires investors to exhaust local remedies before resorting to ISA tribunals. Adopting a comparative institutional analysis framework, this article argues that the choice of a complementary mechanism should be reconsidered, as it fails to support the normative values of fairness, efficient resource allocation, and peace. Instead, it proposes creating an African Continental Free Trade Area (AfCFTA) Investment-related Dispute Settlement (AIRDS) regime modelled after the AfCFTA trade dispute settlement regime. Apart from ensuring fairness, efficiency, and peace, the AIRDS regime could shape Africa’s stance in global ISDS reform discussions.

Specialized regimes and incidental issues of external law: the case for a limited exercise of incidental jurisdiction in WTO dispute settlement

2026-07-17T00:00:00+00:00

Abstract

This article advances two main propositions. The first, broader proposition, which forms its underlying premise, is that specialised adjudicative bodies will (and in this author’s view, should) vary in the types of incidental issues of external law that they can determine within their regimes. This reflects the reality that specialized regimes differ in the means and extent of their interaction with external norms, including general law and other specialised denominations. Building on this premise, it is argued that World Trade Organization (WTO) adjudicative bodies may address external legal issues of a truly incidental and ancillary nature, subject to the condition of regime-compatibility. In the WTO context, regime-compatibility is reflected in the obligation not to ‘add to or diminish’ the rights and obligations under the covered agreements. The discussion concludes by examining the alternative techniques occasionally employed by specialized adjudicative bodies to sidestep the need to exercise incidental jurisdiction.

Structural predicaments and progressive reform: Chinese commercial mediation in transition

2026-07-16T00:00:00+00:00

Abstract

Against the backdrop of the Singapore Convention, Chinese commercial mediation is striving for institutional independence and professionalization to break away from its traditional auxiliary position. The 2025 Regulations on Commercial Mediation established a unified national regulatory framework, but its legislative limitations and pragmatic compromises fail to address the sector’s deep-seated operational dilemmas. On the basis of mixed empirical research, including macrodata analysis and institutional fieldwork, this exploration identifies four interlocking structural constraints that hinder independent transformation, namely, insufficient demand-side incentives, judicial path dependency, low-value financial disputes, and impaired independent fee-charging mechanisms. A progressive multidimensional reform framework is constructed covering legislative coordination, enforceability optimization, industry professionalization, supervision restructuring, and market demand activation. The findings provide empirical support and practical pathways for high-quality development in the sector, helping Chinese commercial mediation enhance its professional competence and international competitiveness to become a core part of the global commercial dispute resolution ecosystem.

Why the study of international law needs agent-based modelling: An investigation of state responses to European Court of Human Rights judgments

2026-07-10T00:00:00+00:00

Abstract

We introduce agent-based modelling (ABM), an established computational simulation method, as an addition to the toolbox of international law and international dispute settlement research. With its ability to incorporate heterogeneous actors and their interactions, diverse environments, and time evolution into a bird’s eye perspective on a system and investigate its dynamics and emergent properties, we show how the method can contribute valuable insights into ongoing inquiries in international law research. We do so by offering (1) a detailed introduction to an agent-based model of compliance with European Court of Human Rights judgments, and (2) a broad overview of other topical questions in international law research and how they could be addressed through ABM: from investment arbitration to the development of human rights law.

Dealing with hallucinations: a guide for international judges and arbitrators

2026-07-07T00:00:00+00:00

Abstract

The advent of generative AI (GenAI) has introduced a new challenge to legal practice: the proliferation of ‘hallucinations’, plausible-sounding yet fabricated legal content, including citations, facts, and legal rules. This article delves into the nature of artificial intelligence (AI)-driven hallucinations, examining their technical origins and the many reasons that can make legal professionals susceptible to these errors. It presents novel empirical data from a comprehensive database of adjudicated cases, charting the upward trajectory of this issue across diverse jurisdictions, and argues that hallucinations represent more than mere inaccuracies; they constitute a profound epistemic challenge. Far from being spared, international dispute settlement presents unique vulnerabilities to this challenge. Accordingly, the article proposes a pragmatic, multi-stage framework specifically tailored for international courts and arbitral tribunals to identify, manage, and respond to AI-generated falsehoods. This framework emphasizes procedural fairness, a factor-based assessment of culpability and impact, and a graduated range of remedial measures available to adjudicators. Ultimately, the article advocates for principled and cautious engagement with GenAI in international dispute resolution.

Balancing Impartiality and Advocacy: Observations, Lessons, and Suggestions From a Practicing Ombuds

2026-07-06T14:04:01+00:00

ABSTRACT

Universities increasingly rely on ombuds offices as informal, impartial mechanisms for addressing conflict and strengthening institutional trust. Yet the ombuds role is frequently shaped by tension among impartiality, advocacy, and legal accountability. This paper examines the evolution of the Office of the Ombuds at the University of Maryland, Baltimore (UMB) as a practice-based case study of how these tensions are navigated within a public research university. Drawing on institutional documents and relevant conflict resolution scholarship, the analysis traces the office's development from pilot initiative to campus-wide function, with particular attention to leadership transitions, role clarity, and institutional positioning. The paper conceptualizes impartiality as an active ethical practice grounded in fairness, independence, and process advocacy rather than passive detachment. It further examines how reporting obligations complicate expectations of confidentiality, highlighting UMB's efforts to clarify the limits of confidentiality within a public institutional context. The case offers practical insight for ombuds practitioners and dispute system designers working within complex regulatory and power-laden organizational environments.

Regulators and adjudicators: the interplay between trade committees and dispute settlement bodies in the European Union’s Free Trade Agreements

2026-07-07T00:00:00+00:00

Abstract

In advancing its co-operative approach to sustainable development through trade, the European Union (EU) has embedded a sophisticated governance framework in its trade agreements, comprising two pillars: a complex governance pillar anchored in committees and a dispute-settlement pillar. While scholarship has examined these mechanisms normatively, their practical operation and interplay within EU Free Trade Agreements remain understudied. This article addresses this gap by mapping pathway interactions between the two pillars, drawing on case law and committee reports from the post-2006 period. The analysis shows that, rather than adhering to a strict separation of powers, the pillars operate flexibly and dynamically. Four possible interactions were identified: procedural interdependence, dispute prevention, authority, and compliance support. The findings indicate that committees complement, rather than replace, adjudication, engaging with the dispute-settlement pillar across the dispute life-cycle. In clarifying these dynamics, this article advances debates on the EU’s institutional design and its co-operative approach to regulatory cooperation.

The Missing Verdict on Sexual Harassment and Arbitration in India: What the Courts Didn't Decide

2026-07-06T06:22:57+00:00

ABSTRACT

This paper critically examines the arbitrability of sexual harassment disputes in India in light of the recent Constitutional Bench decision in Gayatri Balasamy v. ISG Novasoft Technologies Ltd., which, while addressing the modification of arbitral awards, fell short of conclusively settling the question of whether such disputes are arbitrable. Relying on established judicial tests for arbitrability as laid down in Booz Allenand Vidya Drolia, the paper explores how sexual harassment claims, particularly within the context of employment relationships, engage broader questions of public policy and statutory mandates under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. It argues that mandatory arbitration of such disputes undermines the procedural safeguards and victim-centric mechanisms envisaged under the POSH framework. However, the paper does not advocate a wholesale retreat from India's pro-arbitration approach. Instead, it proposes a careful approach that upholds three essential principles: ensuring arbitration is based on voluntary and informed consent, preserving statutory rights under the POSH Act, and safeguarding victims' unfettered access to justice. This paper undertakes a comparative jurisdictional analysis and recommends excluding sexual harassment claims from mandatory arbitration, codifying non-arbitrable subject matters within the Arbitration and Conciliation Act, 1996, and permitting arbitration only where there is explicit, post-dispute consent. This balanced approach would enable India to maintain its arbitration-friendly image while aligning with its constitutional and international commitment to gender justice and workplace dignity.

Unlocking Critical Insights Into the Perceived Effects of the Indigenous People of Biafra's Sit‐at‐Home Protests on Producers and Marketers of Perishable Crops in Southeastern Nigeria

2026-07-01T04:56:49+00:00

ABSTRACT

This study critically analyzed the perceived effects of the Indigenous People of Biafra's (IPOB) sit-at-home protest on major agribusiness actors in perishable crops, as well as their coping strategies, in Southeastern Nigeria. The study adopted an equal sampling frame of 950 respondents from each of the farmers' and marketers' categories to ensure balanced representation and facilitate valid comparisons across the two major value chains. Using a structured questionnaire, data were collected from 1900 randomly selected respondents. The research specifically described the socioeconomic characteristics of producers and marketers of perishable crops, examined the effect of Monday's sit-at-home protest on respondents, and explored the adaptation practices employed during the crisis. The study used both descriptive and inferential statistics to analyze the data. Most farmers reported substantial (37.9%) and modest (33.7%) post-harvest losses. Most farmers (58.9%) reported a significant reduction in the price of perishable crops. Most (82%) marketers reported significant post-harvest losses, and 51.6% reported a substantial price decrease. Also, 73.7% of marketers reported substantial profit losses, while 26.3% reported modest losses. To mitigate these perceived effects, farmers (80%) primarily adopted harvesting of “near ripe” crops ahead of the sit-at-home. Additionally, 52.5% of respondents used improved storage methods to extend the shelf life of their crops. The farmers (44.2%) also adopted low prices to help evacuate perishable crops during the sit-at-home. The study concludes that the sit-at-home protests have significantly disrupted agribusiness operations, resulting in economic losses for producers and marketers of perishable crops. It recommends strengthening judicial and conflict-resolution mechanisms to address the underlying causes of civil unrest, as well as investing in rural silos and cold-chain infrastructure to enhance farmers' storage capacity and resilience to similar disruptions.

“Efforts to Surface the Unspoken”: A Mixed Methods Study of a Risk‐Informed Check‐In in Norwegian Family Mediation

2026-06-09T09:19:02+00:00

ABSTRACT

In family mediation, emotional discomfort and perceived unsafety may signal deeper relational risks, including postseparation violence. Standard intake procedures in Norwegian family mediation depend on disclosure to a nonclinical administrator before any therapeutic relationship exists, and research documents systematic under-reporting at this stage. This study evaluates a brief, individually administered check-in protocol developed through the risk-informed mediation (RIM) project, a practice-oriented research collaboration between mediators and researchers in which mediators ask two experiential questions at the start of the first session. Using an embedded mixed methods design, we combined statistical analysis of 322 cases from seven Norwegian family counseling offices with qualitative findings from a mediator focus group at one embedded site. Each office contributed data from both a mediation-as-usual (MAU) period and a RIM period, allowing comparison of risk categorization across the two conditions. Chi-square tests revealed statistically significant shifts at four of seven offices. Within the RIM period, 9.5% of cases were re-categorized upward and 23.2% downward following the check-in. Dyadic asymmetry, defined as divergent responses between parents, predicted upward re-categorization with an odds ratio of 3.88, rising to 7.21 in low-risk dyads. Mediators described the check-in as a relational opening that revealed concerns parents had not raised before; unchanged assessments were not inert but confirmed a safe starting point. The mixed methods findings converge on a single conclusion: the protocol functions not as a classification instrument but as a relational opening that can reach risk intake procedures miss. Effects vary across offices, and the findings surface three structural dilemmas—how broad the inquiry should reach, how a mediator who has learned that one parent fears violence can act on that knowledge within a role that offers no formal protective mechanism beyond reporting duties, and how much interpretive competence the protocol requires of those who use it.

Issue Information

2026-06-01T08:33:07+00:00

Conflict Resolution Quarterly, Volume 43, Issue 4, Page 489-492, Summer 2026.

Advancing Sustainability in International Arbitration: The Development of the Arbitration Sustainability Index (ASI)

2026-05-22T11:56:39+00:00

ABSTRACT

Pressure is mounting for international arbitration to align with global sustainability expectations, yet scattered initiatives—virtual hearings, e-bundles, diversity pledges—offer no coherent metric of success. This article proposes the Arbitration Sustainability Index (ASI), a voluntary soft-law instrument that converts the UN Sustainable Development Goals and ESG benchmarks into a tri-partite scorecard of arbitration's environmental, economic, and procedural/social performance. Through doctrinal analysis of leading rules, treaties, and case law, nine quantifiable indicators are distilled and embedded in a weighted 35–30–35 scoring model. A branching-logic scenario and proof-of-concept simulation illustrate the ASI's capacity both to diagnose carbon-light, cost-proportionate, and inclusive procedures and to spur reform via reputational competition rather than legal compulsion. By standardizing data collection and enabling cross-institutional comparison, the ASI equips scholars with a testable construct, practitioners with an audit tool, and policymakers with an evidence base for soft-law or legislative nudges. Future empirical studies will refine weightings and track behavioral uptake, advancing the ASI toward a widely recognized sustainability benchmark for arbitration.

“Traditional Cures to Modern Conflicts”: Kabara Institution as “African Conflict Medicine” Among the Marghi Ethnic Group in Adamawa State, Nigeria

2026-05-09T05:24:31+00:00

ABSTRACT

The Kabara Council among the Marghi ethnic group in Madagali Local Government Area (LGA) of Adamawa State is a longstanding traditional conflict resolution and peacebuilding mechanism spanning over 500 years of use. It went moribund but was reinvigorated to address rising social conflicts in post-insurgency Adamawa State. Using Zartman's thesis on the relevance of traditional conflict resolution mechanisms to modern conflicts in the contemporary African State, this research examines the activities, structure, composition, and administration of the reinvigorated Kabara Council, as well as the council's effectiveness in resolving social conflicts among the people. Through this case study of the Kabara Council, the research contributes to the debate about what constitutes “the local” in local peacebuilding mechanisms and why they are effective in managing contemporary localized modern conflict. In a bid to make the council more effective, the study recommends expanding the Kabara Council in Madagali and adopting the council as the grassroots conflict management mechanism for the novel Adamawa State Peace, Conflict Resolution and Social Integration Commission, rather than creating a new one in Madagali LGA.

From Custom to Court: The Evolution of Mediation in European Legal Systems

2026-09-01T14:37:51+00:00

ABSTRACT

This article traces how European mediation has repeatedly rebalanced three variables—(1) the source of mediator authority, (2) the degree of institutionalization, and (3) the operative meaning of voluntariness—from antiquity to the present. Using three periods—Proto-Mediation (c. 500 BCE–c. 1750), Classical Mediation (c. 1750–1976), and ADR-Era Mediation (1976–present)—it shows how authority migrated from communal standing to professional or court-adjacent credential; how informal practice became standardized procedure; and how voluntariness shifted from social expectation to legally managed participation (sometimes via “mandatory” gateways). The analysis explains contemporary court-connected designs as the latest turn in a long European cycle and offers a historically grounded synthesis centred on the authority–institutionalization–voluntariness triad. How have authority, institutionalization, and voluntariness been historically reconfigured in European mediation, and what do these recurrent configurations imply for the design and legitimacy of contemporary court-connected mediation?

Calibrated Autonomy: China's 2026 Business Mediation Ordinance and the Reconfiguration of Dispute Resolution

2026-09-01T14:37:51+00:00

ABSTRACT

This article argues that China's 2026 Business Mediation Ordinance represents neither progress toward rule of law nor retreat from it. I propose instead that we are witnessing something I call “calibrated autonomy”—the strategic construction of spaces for private ordering that remain tethered to Party-State oversight through multiple institutional linkages. The dominant scholarly frameworks miss this. Matthew Erie sees new legal hubs; Carl Minzner sees a turn against law; Björn Ahl sees judicial institutional strategies. Each captures something real. But none grasps the distinctive logic at work: the Party-State deliberately creates bounded zones of legal autonomy precisely because such zones serve its interests, while structuring those zones to ensure continued control. This is not rule of law. It is not its absence. It is a third thing—one that challenges us to rethink how we understand legal development under authoritarian conditions. The analysis extends conflict resolution theory by demonstrating that the characteristics Western scholarship treats as universal features of mediation—party autonomy, mediator neutrality, voluntariness—are contingent features of particular institutional arrangements, and it raises practical questions about enforcement of mediated settlements under the Singapore Convention when mediation systems embed state oversight.

Editorial 92:2 [pre-publication]

2026-04-11T00:01:06+00:00

Volume 92 Online ISSN 0003-7877

Managing Tribunal Fatigue in Hybrid Arbitration Hearings: A Procedural Framework to Safeguard Decision Quality and Enforceability [pre-publication]

2026-04-11T00:01:06+00:00

Hybrid arbitration hearings – where some participants attend in person while others join remotely – have become a permanent fixture of international dispute resolution. However, this format introduces significant cognitive challenges for arbitrators that threaten decision quality, procedural fairness, and ultimately award enforceability. This article addresses a critical gap in arbitration literature by synthesizing psychological research on decision fatigue with procedural best practices from major arbitral institutions. It proposes a comprehensive Tribunal Fatigue Mitigation Framework complete with practical checklists and a model procedural order designed for immediate implementation in ICC, LCIA, SIAC, Dubai International Financial Centre“DIFC”-LCIA, and HKIAC arbitrations. (Roo Patel, ‘Will Your Next Arbitration Hearing Be Hybrid? Plan Now for Success’ (Opus 2, 28 October 2025), https://www.opus2.com/planning-for-hybrid-hearings/ accessed 11 December 2025.) The central research question examined is: How can tribunals structure hybrid hearings to minimize fatigue and procedural errors without compromising fairness or efficiency? The answer lies in recognizing that hybrid hearings demand a fundamentally different procedural approach than traditional in-person proceedings – one that accounts for the psychological toll of sustained videoconferencing, the asymmetry between remote and physical participants, and the heightened cognitive demands placed on decision-makers who must simultaneously process digital and physical inputs.

Volume 92 Online ISSN 0003-7877

Arbitral Awards. (Second Edition), by Chan Leng Sun SC. Singapore: Academy Publishing. 2025 [pre-publication]

2026-04-11T00:01:06+00:00

Volume 92 Online ISSN 0003-7877

A Practitioner’s Guide to Arbitration in the Middle East and North Africa, edited by Essam Al Tamimi Sweet & Maxwell. Malaysia. 2024 [pre-publication]

2026-04-11T00:01:06+00:00

Volume 92 Online ISSN 0003-7877

Echo Chambers of Conflict: Social Media's Impact on the Israel‐Hamas War Debate. By Jonathan Matusitz Jonah Lynne, Berlin: De Gruyter, 2025. 290 pp., price around 70$ (amazon) (hardcover). ISBN: 978‐3‐11‐173684‐6

2026-09-01T14:37:51+00:00

Conflict Resolution Quarterly, Volume 44, Issue 1, Page 127-128, Fall 2026.

Powdered Activated Carbon Treatment of PFAS‐Containing Washwater From Aircraft Hangar Pipe Rinsing

2026-03-24T07:00:00+00:00

ABSTRACT

The decontamination of thousands of pipes in fire suppression systems, for example, aircraft hangars and firetrucks exposed to aqueous film forming foam (AFFF), may generate large volumes of PFAS-laden water requiring treatment. This study investigated the use of powdered activated carbon (PAC) to remove PFAS from washwater used to rinse pipes from aircraft hangar pipe contaminated with AFFF. The untreated washwater contained 249 µg/L of total PFAS. The concentrations were highest for 6:2 FTS (178 µg/L), PFHxA (48 µg/L), PFOA (9.5 µg/L), and PFPeA (6.2 µg/L). PFAS was removed from washwater during 24-h adsorption experiments conducted over a range of adsorbent masses. Temporal increases were observed between the 2- and 4-h total PFAS concentrations during most of the experiments, corresponding to some PFAS species being displaced during complex competitive adsorption mechanisms. After 24 h in the presence of 0.23 g of PAC per liter of solution, removals of 6:2 FTS and PFHxA, two of the short-chain PFAS, were 95% and 86%, respectively. For long-chain PFAS, PFOA and PFOS were removed to below their quantitation limits (i.e., 1 and 0.01 µg/L, respectively) in most cases. However, removal of 8:2 FTS was only 52% in the presence of 0.0575 grams of PAC, despite having a relatively high Log K _ow and dipole moment values, also pointing to the complexity of PAC adsorption mechanisms in AFFF contaminated water. To the authors’ knowledge, this is the first study to report the use of PAC to treat AFFF washwater, a niche but important matrix.

Preliminary Evaluation of In Situ Chemical Oxidation Effects on Soil Carbon Dioxide Emission in a Soil Slurry System

2026-03-24T07:00:00+00:00

ABSTRACT

In situ chemical oxidation (ISCO), a remediation technology for soil and groundwater contamination, utilizes oxidants that can impact the soil environment and indirectly influence soil CO₂ emissions. Understanding these emissions may support more sustainable ISCO applications by enabling adjustments to treatment conditions that limit unnecessary CO₂ release. This study assessed the effects of ISCO on soil CO₂ emission rates and total bacterial counts by evaluating three common ISCO oxidants: hydrogen peroxide (HP), sodium persulfate (SPS), and potassium permanganate (PM), also in combination with various activation methods. CO₂ emission rates from the soil slurry system were measured using a closed static chamber method and expressed in nanograms of CO₂ per gram of dry soil per hour (ng CO₂ g_ds ^–1 h^–1). Under stable conditions, soil CO₂ emission rates were ranked as follows: SPS groups (2.0~4.0) > PM group (1.9–3.1) > HP groups (0.6–1.8) ≈ original soil (0.4–1.0), while total soil bacterial counts (CFU g_ds ⁻¹) ranked as: PM group (~10⁷) > HP groups (~10⁶) > original soil (~5.0 × 10⁶) > SPS groups (~10⁴–10⁶). Most oxidant activation treatments led to higher CO₂ emission rates and soil bacterial counts, except under alkaline activation. These findings demonstrate the influence of different ISCO processes on soil CO₂ emissions and offer a baseline for emission rates during ISCO remediation.

Ônus probatório em disputas arbitrais de construção: superando a carência de critérios explícitos no direito brasileiro a partir da aplicação de standards e protocolos internacionais

2026-04-11T00:01:06+00:00

Tendo como contexto arbitragens de construção no Brasil, este artigo aborda a carência de critérios explícitos e bem definidos no ordenamento jurídico brasileiro sobre o ônus probatório das partes e seu impacto na resolução de disputas arbitrais complexas de construção. Sendo premente encontrar uma solução, ainda que embrionária, o artigo reforça a adoção de standards e protocolos internacionais como meios de superar as lacunas. Discute-se, também, a necessidade de o tribunal arbitral (ou árbitro único) garantir ciência às partes, preferencialmente desde o início do procedimento arbitral (na conhecida Ordens Processuais nº 1), sobre os critérios probatórios a serem aplicados no julgamento do litígio. Ao final, conclui-se que as medidas sugeridas promovem uma abordagem mais transparente na resolução de disputas arbitrais complexas de construção e garantem maior previsibilidade às partes na formulação de suas respectivas estratégias

Arbitragem; disputas de construção; contrato de construção; ônus da prova; nexo causal; standards probatórios; protocolos internacionais.

In the context of construction arbitration proceedings in Brazil, this article addresses the lack of explicit and well-defined criteria within the Brazilian legal framework regarding the burden of proof borne by the parties and its impact on the resolution of complex construction arbitration disputes. Recognizing the pressing need for a solution, even if preliminary, the article advocates for the adoption of standards and international protocols as a means of bridging existing legal gaps. It further discusses the necessity for the arbitral tribunal (or sole arbitrator) to ensure that the parties are informed – preferably from the outset of the arbitral proceedings (by means of the well-known Procedural Order No. 1) – of the evidentiary standards to be applied. The article concludes that the proposed measures foster a more transparent approach to resolving complex construction arbitration disputes and afford the parties greater predictability in formulating their respective strategies.