International Commercial Arbitration Q1 2023

• Published date: 01 September 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Wiersholm
• Author: Stephan L. Jervell, Thomas G. Naalsund, Christian Hauge and Ignazio Azzari St'en

This update explores trends and developments within international commercial arbitration seen from a Norwegian perspective.

AI is on "everyone's" lips these days and the EU is working with high speed on how to tackle the potential challenges relating to these powerful tools. The use of AI, and what it will mean for counsels and arbitrators going forward, is impossible for anyone to predict, but we do know that it will bring changes. When asking ChatGPT for the latest trends within international arbitration seen from a Norwegian perspective, the answer started with the following:

As an AI language model, I do not have access to up-to-date news articles or the ability to monitor news feeds in real-time.

So clearly there is still need for newsletters written by humans - and in this one you will get our high level input on the question ChatGPT gave up on.

Success and Mediation Window

When a dispute is brought before an arbitral tribunal, objective success is a transparent and efficient process towards a final, enforceable solution - either through agreement or an award. Even if an arbitration is initiated, it is important that the parties either revisit or start to explore the possibility of a negotiated solution. Our general experience is that many parties at this stage of the process, regardless of previous attempts to settle the case, are "afraid" of making the first move towards e.g. agreeing on a mediation process to avoid looking weak.

This point was raised during a panel discussion during the 23^rd Annual IBA Arbitration Day - and the session chair, Lucy Reed, argued the following (quoted from the report on panel discussion at the 23rd Annual IBA Arbitration Day):

Following on from the midstream meeting, Reed proposed a further 'mediation window' for the parties to consider mediation. As the mediation window would be set in the procedural timetable, the parties would have an organic window to consider settlement without the misconception that, by asking for it, they would look weak."¹

Making a mediation window in the procedural timetable has arguably been part of Norwegian/Nordic best practice for some time. In the Nordic Offshore and Maritime Arbitration Associations' (NOMA) Best Practice Guidelines, the CMC-matrix sections 1.13 and 1.14 encourages the parties to agree during the first Case Management Conference to allocate time for mediation/settlement discussions. In addition, the CMC-matrix also suggests that the arbitral tribunal appoints a...