The Contents of Arbitration: The International Journal of Arbitration, Mediation and Dispute Management (Ciarb), Volume 91, Issue 4 (2025)

In its fourth and final issue for 2025, Arbitration considers new perspectives on existing issues.

In her Editorial to this issue, Prof. S.I Strong writes:

“As the year draws to a close, it is useful to take stock of both past achievements and future plans. This issue’s lead article perfectly achieves that goal, as it is the first iteration of a new initiative that aims to celebrate and amplify some of Arbitration’s most influential pieces. Over the last few months, we have been soliciting responses to some of our most popular articles so as to generate new thinking on issues of interest to our readership. We are pleased to have Jeff Waincymer kickstart that initiative by providing a new perspective on issues initially raised by Hamish Lal, Brendan Casey, Josephine Kaiding, and Léa Defranchi in their 2020 article, Abuse of Document Production in International Arbitration: Remedies When the Adverse Inference Falls Short

This issue’s emphasis on the new perspectives on existing issues is also evident in Yuhang Wu’s article, which focuses on the principle of arbitral independence and impartiality in disputes involving the metaverse. While the term ‘metaverse’ sounds like something out of a superhero movie, it is used here to describe technologies relating to virtual realities, including NFT marketplaces and cryptocurrency. This fascinating look into the future of dispute resolution highlights how new technologies challenge existing paradigms of procedural justice.

Technology-related concerns are also addressed by Ewuwuni Onnoghen-Theophilus, who writes on the tension between the ICCA-IBA Roadmap to Data Protection in International Arbitration and Nigeria’s data protection laws. In so doing, Ms. Onnoghen-Theophilus provides insights that may be useful to other countries considering whether to adopt the paradigm proposed by ICCA and the IBA.

Other articles in this issue also take new looks at existing problems. Thus, Mario Silva’s article on reforming investor-state arbitration takes a new and comparative look at various international and intergovernmental initiatives in investment arbitration to determine how well those efforts balance protection for investors with concerns about sovereignty and systemic integrity.

Akanksha Oak considers how the enforcement of mediated settlements in the United States might be improved via certain innovations adopted in India regarding the nature of a mediated settlement. In so doing, Ms. Oak describes how such changes might help the United States come into closer compliance with the standards reflected in the Singapore Convention on Mediation.

Joost van Dam applies a somewhat novel methodology to address ongoing questions about decisions to set aside or refuse to recognize arbitral awards. He undertakes a robust empirical approach to the issue, drawing on more than 500 court decisions to identify the grounds most frequently relied upon by Dutch courts faced with these issues. His article not only provides scholars and practitioners with robust, empirical data on the behaviour of Dutch judges, it also provides academics with a useful roadmap in how to conduct similar studies in other countries.

We are also pleased to publish the text from this year’s Roebuck Lecture. In his remarks, Sir Robin Knowles discusses how high-value claims and awards can affect the likelihood of settlement in commercial and investment disputes. Among other things, Sir Robin expresses concern about the unpredictability and consequences of such awards, leading to a call for collaboration and integration between all forms of international dispute resolution, meaning litigation, arbitration and mediation.

We hope these articles, along with two book reviews from Gordon Blanke, will provide useful and interesting reading as 2025 draws to a close.”

We are happy to announce that the latest issue of Arbitration is now available and includes the following contributions: 

Articles

Jeff WAINCYMER, Some Normative Inferences about Inferences in International Arbitration

Logic-based adverse inferences are an essential element of legal adjudication. To utilize them fairly in response to issues such as failure to produce documents or witnesses, tribunals would need to ensure that they stem from an impeccable procedural process and logical analysis. The logical basis is strongest when there is no other reasonable inference than that the evidence, if produced, would be adverse. The procedural and evidentiary challenges make it unrealistic to see adverse inferences or striking out powers as a systemic way to incentivize production.

Yuhang WU, Arbitrators in the Virtual World: The Evolution of Independence and Impartiality and the Safeguarding of Procedural Justice in Metaverse Dispute Resolution

With the ascendance of metaverse technologies, virtual dispute resolution mechanisms have undergone rapid development, challenging the foundational principles of traditional arbitration. This article examines the theoretical foundations of independence and impartiality within the international arbitration framework and analyses how the virtualization of the arbitrator’s role in the metaverse creates new institutional tensions and normative challenges. Drawing on comparative practices from China, Singapore, and platform-based mechanisms, it further explores the potential impact of remote hearings, algorithmic assistance, and decentralized systems on procedural justice. Based on these findings, the article proposes reconstructing the arbitrator regime by refining appointment procedures, fortifying digital identity verification, and delineating the boundaries of AI-assisted decision-making to ensure the continuity and legitimacy of arbitral principles in the evolving technological environment.

Ewuwuni ONNOGHEN-THEOPHILUS, Situating the ICCA-IBA’s Roadmap to Data Protection in International Arbitration Within Nigeria’s Data Protection Laws

The intersection of international arbitration and data protection law presents a complex and evolving regulatory landscape, particularly in jurisdictions where domestic data protection regimes are rapidly developing. This article critically examines the International Council for Commercial Arbitration (ICCA)-International Bar Association (IBA) Roadmap to Data Protection in International Arbitration (the ‘Roadmap’) in the context of Nigeria’s Data Protection laws. It explores how the Roadmap’s soft-law guidelines align with, diverge from, or are challenged by Nigeria’s binding statutory framework, especially regarding principles of lawful processing, cross-border data transfers, data subject rights, and obligations of arbitration participants. The article argues that while the Roadmap offers essential procedural safeguards for practitioners, its practical utility within Nigeria must be carefully assessed against statutory mandates enforced by the Nigeria Data Protection Commission (NDPC). By situating the Roadmap within Nigeria’s legal architecture, the article offers a nuanced perspective on reconciling international best practices with local compliance demands in cross-border arbitration. This analysis contributes to ongoing global discourse on embedding data protection into arbitral procedure and highlights the broader implications for regulatory harmonization and the legitimacy of international commercial arbitration involving Nigerian parties.

Mario SILVA, Investor-State Arbitration: Between Sovereignty and Systemic Integrity: The Need for Reform

Investor-State Dispute Settlement (ISDS) mechanisms face a legitimacy crisis marked by concerns over fairness, independence, and state regulatory autonomy. This article examines three major reform initiatives: United Nations Commission on International Trade Law (UNCITRAL) Working Group III’s multilateral dialogue process, the European Union’s Multilateral Investment Court (MIC) proposal, and International Centre for Settlement of Investment Disputes' (ICSID) 2022 institutional reforms. Through comparative analysis, it evaluates how each approach reconciles investor protection with state sovereignty. While ICSID’s incremental reforms strengthen procedural legitimacy within the arbitral model, the MIC represents a deeper shift toward judicialization, offering greater coherence but facing political resistance. The article argues that meaningful reform requires recalibrating the balance between investor rights and democratic governance, transparency and efficiency, and legal predictability and policy space. The future of investment dispute settlement will likely be pluralistic, with multiple institutional models coexisting as states navigate competing priorities in global economic governance.

Akanksha OAK, (Re)writing the Rules: Securing Finality for Mediated Settlements in the United States

Mediated settlements are widely valued for their flexibility and efficiency in resolving disputes. However, in the United States (US), parties in high-conflict cases increasingly exploit the contractual nature of these settlements to delay or avoid compliance by raising strategic contractual defences. As these agreements are treated as private contracts rather than court orders, they lack the statutory finality required to deter frivolous post-settlement litigation. In contrast, India’s Mediation Act 2023 confers on mediated settlements the status of court decrees and restricts the grounds for challenge, thereby enhancing legal certainty and enforceability. Drawing on the Indian model, this article proposes a reform for the US that introduces court-appointed administrators to review and authenticate mediated settlements prior to enforcement. This mechanism would narrow the scope of permissible challenges, discourage procedural delays, and reinforce the finality of mediated outcomes. It would also bring US enforcement practices into closer alignment with international standards, particularly those reflected in the Singapore Convention on Mediation.

Joost VAN DAM, Lost the Battle, But Not the War: Annulment and Resisting Arbitral Awards in the Netherlands

This article explores when Dutch courts may set aside or refuse to recognize arbitral awards, whether issued in the Netherlands or abroad. It sets out the relevant legal framework under the Dutch Code of Civil Procedure (DCCP) and the New York Convention, highlighting the distinction between domestic and foreign awards. Drawing on more than 500 court decisions, the analysis focuses on the grounds most often accepted in practice. These include breaches of public policy – especially where the right to be heard was denied – the absence of a valid arbitration agreement, failure to provide adequate reasoning, and situations where the tribunal exceeded its authority. While Dutch courts have the power to intervene on these grounds, they exercise that power with caution. The data show that set-aside or refusal has been granted in only about 20% of cases. This suggests that although losing parties in arbitration do have procedural options to resist enforcement, the bar remains high. Dutch courts continue to favour enforcement in principle and intervene only where there is a clear and serious defect. The article offers a practical and doctrinal look at how Dutch courts balance deference to arbitral autonomy with the protection of core procedural rights.

Speeches

Sir. Robin KNOWLES CBE, Damages and Remedies: Responsibilities and Reputation

Book Reviews

Gordon BLANKE, International Commercial Arbitration in the Mainland UAE: A Legislative, Judicial and Institutional Assessment, by Dr Emad Hussein (Lexis Nexis, 2025), 377 pp., ISBN 978-1-4743-3374-0.

Gordon BLANKE, Joint Venture Disputes in the Energy and Natural Resource Sectors, by A. Timothy Martin, John Gilbert, and Peter Roberts (Oxford University Press, 2023), 416 pp., ISBN 978-0-19-285961-7.