DIS Autumn Conference 2025: Arbitration – A Bridge Over Troubled Waters

The 2025 DIS Autumn Conference brought together 512 participants from 17 countries to discuss how international arbitration can support the rule of law in turbulent times. Held on 9 September 2025, it was the centrepiece of the Berlin Dispute Resolution Days. This post recaps the discussions held during the conference.

Introduction and Keynote

Dr Reinmar Wolff (DIS) opened the conference by emphasising arbitration’s responsibilities in times of crises and the need for partnerships. The conference was organized by Dr Jennifer Bryant (Noerr), Dr Richard Happ (Luther), Johanna Wirth (HengelerMueller), and Nadja Mamat (DIS).

Having been introduced by Ramona Schardt (DIS), Germany’s former Minister of Justice Dr Marco Buschmann delivered the keynote speech on “Why ‘Troubled Waters’ – and How Arbitration must Respond in Times of Legal, Political and Institutional Instability”. Drawing on the economics of conflict and the Star Wars saga, Buschmann cautioned that the golden age of the “light side” was over. Instead, the “dark side” had returned, prioritizing power over values and norms, as evidenced in geopolitical conflicts and resurging nationalism. He stressed that arbitration must defend the principles of justice and legal cooperation if it is to remain a stabilising force.

Valid but Void? Enforcement and the Rule of Law in an Age of Defiance

Chaired by Camilla Perera-De Wit (independent arbitrator and mediator), the first panel examined the growing challenges of enforcing arbitral awards when faced with political interference, sanctions, or obstruction strategies.

Panellists Prof Franco Ferrari (NYU School of Law), Marnix Leijten (De Brouw Blackstone Westbroek), Karl Pörnbacher (Hogan Lovells), and Aurel Sangenstedt (Uniper Global Commodities) concurred that enforcement generally works reliably in ordinary commercial arbitration cases, but politically-charged cases undermine reliability and efficacy. Sangenstedt observed, from an in-house perspective, that arbitration is no longer a safe haven: time, cost, and the risk of non-enforcement loom large so that it may be commercially sensible to write off even meritorious claims.

The panellists highlighted how in some high-profile disputes, including Gazprom v Uniper (see also here) and UniCredit v RusChemAlliance (discussed here, here and here), court proceedings have been weaponized as tools of retaliation against investors, and public policy exceptions are used strategically. In this regard, Pörnbacher highlighted a new wave of systematic disruption where legal arguments are intertwined with political and social considerations. This, he noted, represents a fundamental shift away from the promises of the New York Convention, extending beyond Russia as similar patterns are emerging in sanctions contexts, and in the US.

The speakers agreed that with the unprecedented scale and sophistication of interference, debate is no longer whether international arbitration is under threat, but how it should respond. In this context, Leijten pointed to hard-learned lessons: long-ignored criticisms of the (investment) arbitration system regarding diversity, accountability, and perceived elitism have left it exposed to political attack and eroded trust. In a polarized world order, even Western legal jurisdictions cannot always be presumed to act impartially.

For arbitration to remain legitimate, it must address concerns of unconscious bias, protracted delay, and opportunities for abuse or disengagement. Ferrari outlined areas in need of reform: at the contract level, parties should consider asset pledges and strategic or switchable seats. Procedurally, anti-suit injunctions should become commonplace. At the systemic level, more robust interstate agreements or alternative fora may be necessary to counter systematic obstruction and increase costs for obstructive parties.

The panel concluded with a realistic assessment: international arbitration, despite its benefits, is not always equipped to surmount entrenched political resistance. Preserving arbitration’s credibility hinges on continuous reform, self-examination, and dialogue among stakeholders.

Strategic Defection: When States Withdraw from Treaties and Tribunals

Prof Klaus Sachs (CMS Hasche Sigle) moderated the second panel on which Lindsay Gastrell (Arbitration Chambers), Cvetelina Georgieva (European Commission), Marina Weiss (Bredin Prat), and Dr Mathias Wittinghofer (Gowling WLG) discussed state exits from ECT, ICSID, or other legal frameworks, and the implications for arbitration’s reliability.

The discussion centred on the termination of intra-EU BITs post-Achmea and -Komstroy and the diverging approaches taken by arbitral tribunals, as Weiss pointed out regarding Green Power and Obton v Spain and Adria Group v Croatia, posing new challenges. Georgieva explained that the European Commission’s concerns remain that investor-state arbitration mechanisms under ICSID and the ECT undermine EU judicial review, while such concerns are less pronounced in commercial arbitration.

Expanding on enforcement trends, Gastrell and Wittinghofer traced approaches across different jurisdictions. Gastrell noted that US courts have recently enforced intra-EU awards, offering hope to investors, but that final legal clarity remains elusive and US policy toward intra-EU BIT enforcement is unsettled. Wittinghofer reviewed German case law, which affirms EU law primacy.

The panellists agreed that while state withdrawals are lawful, the trend toward retaliation against investors is troubling. They saw hope in ongoing renegotiation and modernization of BITs to preserve arbitration’s relevance.

Rule of Law vs. Arbitration: A Harmonious Duo or a Troubled Marriage?

Dr Nadja Harraschain (A&O Shearman) moderated the lively exchange between Prof Florian Bien (Julius-Maximilians-Universität Würzburg) and Dr Philipp Wagner (Wagner Arbitration) on the tension between arbitration’s promise of justice and its potential to evade public oversight.

Starting with the German Federal Court of Justice’s Steinbruch decision (vacating an award on the grounds that the arbitral tribunal had erred in its application of a fundamental provision of German antitrust law), the panel discussed whether party autonomy can – or should – be squared with public interest. The proper extent of review by tribunals and courts, conflicting public policy standards, finality, and the risk of state authorities interfering in private arbitration were hotly debated.

Drawing on sports arbitration experience, the panel also highlighted that limiting judicial review too far could undermine arbitration’s legitimacy and public trust. Ultimately, the panel agreed that arbitration, while founded on party autonomy, must operate within the boundaries of mandatory national law.

Arbitration under Pressure: Crisis Justice in War, Sanctions, and Systemic Collapse

Chaired by Ulrike Gantenberg (Gantenberg Dispute Experts), the next panel featuring Axel Boës (KDB.legal Koch Boës), Steven Finizio (Wilmer Hale), and Dr Greg Lourie (Schellenberg Wittmer) examined how arbitration functions during armed conflict, financial sanctions, or judicial breakdowns.

Lourie addressed the challenges posed by EU sanctions (previously addressed here and here), particularly their impact on access to justice and case timelines when arbitration-related payments are delayed or blocked. Finizio noted that the US and UK generally provide carve-outs for litigation to preserve access to justice, though a party unable to access certain currencies may still face hurdles despite such legal protections. Boës remarked on Russia’s propagandistic portrayal of its businesses being systematically denied justice in sanction-related disputes. On enforcement, he analysed recent German court decisions, preferring the approach of allowing recognition of awards while freezing enforcement until compliance (Higher Regional Court Cologne) over outright denial for its cost implications and the risk of duplicative litigation (Higher Regional Court Stuttgart).

The panel also discussed solutions like relocating the arbitral seat or hearings away from conflict zones, emphasizing that tribunals have the discretion to select safe, accessible venues, potentially even without party agreement.

Anti-Suit Injunctions, Anti-Anti Suit Injunctions, and Anti-Anti-Anti-Suit Injunctions from a Rule of Law Perspective

The final panel, moderated by Aurélie Conrad Hari (Bär & Karrer), and featuring James Castello (Arbitration Chambers) and Prof Gerhard Wagner (Humboldt-Universität zu Berlin) explored how strategic injunctions can challenge the rule of law across borders.

Wagner explained that anti-suit injunctions have traditionally been rare and met with scepticism in civil law jurisdictions, particularly within the EU, which favours mutual trust and lis pendens principles. Nonetheless, recent court decisions reveal increasing openness to anti-anti-suit injunctions, signalling a judicial shift in complex cross-border disputes.

In contrast, Castello noted that common law courts, particularly in the US and UK, routinely issue anti-suit injunctions to uphold arbitration agreements; a trend maintained post-Brexit. Nonetheless, multi-jurisdictional disputes, as in UniCredit v RusChemAlliance, can quickly spiral into overlapping injunctions and enforcement confusion, especially with global asset distribution or sanctions.

Reflecting earlier discussions, the panel highlighted that Russian courts now issue both anti-suit and anti-arbitration injunctions, effectively shielding local parties. According to Wagner and Castello, without international harmonization, these tactical tools will persist, often triggering a “lose-lose” scenario for parties with assets in multiple jurisdictions and inflicting collateral damage on arbitration. Contractual provisions provide limited protection, and relying on the New York Convention is only effective in jurisdictions that genuinely respect the rule of law. The consensus: without resolution of wider geopolitical issues and significant multilateral reform, these conflicts will persist, leaving parties “caught between a rock and a hard place.”

Conclusion

The 2025 DIS Autumn Conference underscored that not only arbitration’s practical utility is at risk, but also its foundational promise as a bridge between legal orders, cultures, and systems. In closing, Prof Christian Duve (Duve Law) reiterated that the “light side” faces growing threats. As new forms of defiance emerge, our shared task is to ensure that the “bridge” is not merely symbolic but remains structurally sound. Looking ahead, the arbitration community must confront challenges around due process, impartiality, and systemic abuse if it is to maintain legitimacy and relevance.