The Contents of Journal of International Arbitration, Volume 43, Issue 1 (February 2026)

It is a privilege to write this editorial as the new General Editor of the Journal of International Arbitration (JOIA). I am deeply honoured to follow in the footsteps of Professor Maxi Scherer, whose decade-long leadership has left an enduring legacy. Under her stewardship, JOIA became a global reference. It offered an evermore vital platform for high-quality scholarship, bridging theory and practice in international arbitration. Professor Scherer’s commitment to excellence have shaped the journal’s identity and earned it the trust of scholars and practitioners worldwide. I pay tribute to her remarkable tenure and thank her for her continued support during this transition. As we look ahead, our rejuvenated editorial team is committed to building on this foundation. JOIA will continue to serve as the journal of choice for thoughtful, well-researched, and impactful contributions to the field. It will continue to publish both groundbreaking theoretical pieces and authoritative practical insights, featuring emerging voices from academia, seasoned scholars, and established practitioners. The topics covered will span a wide spectrum, with the main criteria being quality and relevance. Accordingly, this issue 43.1 includes both erudite and practical articles. It leads with a practitioner’s commentary on the legal basis of attorney-client privilege. This is followed by a damages expert’s demonstration of the impact of statistical distributions underlying experts’ assumptions on quantum calculations. Other articles are equally topical and relevant. These include a nearly exhaustive examination of decisions by investor-state tribunals for understanding the criterion of necessity as applied to provisional measures, a comment on the lessons to be learnt for Investment arbitration reform from the history of the WTO’s currently nonfunctional Appellate Body and a case comment on the jurisdiction of the Qatar International Court.

Below is a detailed summary of the contents of the first issue of Volume 43:

Hans-Patrick Schroeder and Eileen Pott, The Attorney-Client Privilege in International Arbitration: Legal Transplants, Conflict of Laws, and a Transnational Approach

Document exchange has become an almost inescapable component of international commercial arbitration, irrespective of the legal tradition of the lex arbitri, the lex causae, and the legal systems of the parties’ home countries. It is a legal transplant from the practice of litigation in international common law systems, which has developed into a transnational practice in arbitration. Although parties expect the attorney-client privilege, as an exception to the general disclosure obligations, to be protected within this practice, existing rules do not provide guidance on how to do so, and choice of law principles are unwieldy and yield troubling results. This article suggests that a wholesale importation of the broadest national rule of privilege connected to the case would be inconsistent with party expectations relative to the scope of privilege itself, the dimensions of the search for truth, and equal treatment. Rather, the international arbitration practice having evolved around discovery is akin to the results of a legal irritant in the lex arbitri and the practices around privilege should develop similarly. A transnational approach to privilege issues in such a case is best considered a procedural approach or solution: it would begin with the arbitral tribunal requesting submissions from both parties relative to the scope of document exchange and the parties’ proposals for application of attorney-client privilege. The main disadvantage of such a transnational approach is that the rules on privilege will not be known to the parties when a document is created or an act of communication takes place. Despite this drawback, the authors submit that this procedural approach is still the best available since it is the only approach that will be able to reconcile the conflict of laws with regard to privilege as it presents itself in the specific arbitration. It is their suggestion that the Privilege Task Force working on an instrument to deal with privilege in international arbitration will provide the arbitral tribunal with significant latitude to resolve the issue in the individual case before it.

Sanika Kapse, Examining ‘Necessity’ of Provisional Measures in Investor-State Arbitrations

In the context of investor-state arbitrations, an important factor determining the grant of provisional or interim measures is that of ‘necessity’ to prevent irreparable harm or substantial harm that may likely be caused to the requesting party pending the final award. Through an analysis of old and new decisions, this paper delves into the development of this criterion, the threshold of proof required for it, and the varying interpretation given to it by ICSID and UNCITRAL tribunals. The majority of ICSID tribunals follow a strict approach, i.e., assessment of risk of irreparable harm not adequately compensable, for verifying the existence of necessity for grant of measures. UNCITRAL tribunals, on the other hand, largely take a lenient approach, i.e., assessment of risk of material or substantial harm that may be remediable later, warranting grant of measures to protect the requesting party from gross inconvenience. Irrespective of the approach followed, tribunals apply either the ‘balance of probabilities’ threshold or a ‘heightened burden of proof’ threshold, depending on the nature of specific measures requested, for the satisfaction of necessity. It should be noted, however, that despite their different approaches overall, a few ICSID and UNCITRAL tribunals’ decisions converge towards a more nuanced and flexible assessment of necessity.

Heiko Ziehms, John Darlison and Chaitanya Arora, Bias in International Arbitration: The Expert Perspective

A recent article in this journal examined bias in arbitration from the perspective of tribunal members. (Edgardo Muñoz and José Covarrubias Miranda, ‘Unconscious Bias in Arbitration: Case Law and the Path to Fairness’ (2025) 42 Journal of International Arbitration 4 435.) This article shifts the focus to bias in expert evidence and its impact on quantum assessments in international arbitration. Using an analogy involving estimates of the number of atoms in the universe, the authors illustrate how even small differences in assumptions can compound into significant distortions – including when tribunals ‘split the difference’ between opposing expert views. The paper argues that expert estimates can be best understood not as definitive truths but expressions of belief within a range of uncertainty, often underpinned by implicit Bayesian probability distributions. The authors highlight how directional bias in assumption selection – even within acceptable ranges – can lead to unreasonable outcomes. They propose remedies including joint expert reports, expert conferencing, transparent financial models, assumption-level disclosures and other tools. Tribunals are encouraged to interrogate not just the assumptions but the range and distribution of outcomes, and to consider discounting outlier estimates or misrepresentations by one expert. The article concludes that, while bias in expert evidence cannot be entirely eliminated, the use of appropriate tools to detect and address it can contribute to fair and well-reasoned quantum decisions.

Nguyen Luu Lan Phuong, WHO Decides What? Rethinking the Law-Fact Divide in WTO and UNCITRAL’s ISDS Appellate Mechanism Review

Defining the boundary between questions of law and fact is a critical challenge in designing credible international appellate mechanisms. This paper examines how this structural safeguard shapes who decides what on appeal in two contrasting systems: the World Trade Organization’s (WTO’s) now-paralysed Appellate Body (AB) and United Nations Commission on International Trade Law’s (UNCITRAL’s) ongoing efforts to create an investor-state dispute settlement (ISDS) appellate mechanism. While the WTO’s dispute settlement rules initially drew a clear doctrinal line between law and fact, its AB blurred this boundary through expansive reinterpretations and its procedural reliance on the ‘objective assessment’ safeguard, contributing to institutional breakdown. In contrast, UNCITRAL’s Draft Statute begins with a vague ‘manifest error’ standard for factual review, offering no clear threshold or procedural filter to prevent excessive factual relitigation. Recent Working Group III (WG III) discussions, including a possible revision to require errors to be ‘apparent on their face’, highlight that textual drafting alone cannot ensure consistency or finality. Through a comparative doctrinal and procedural analysis, the paper argues that lessons from the WTO’s trajectory demonstrate that even precise treaty text is insufficient unless reinforced by practical safeguards, such as procedural filters and clear interpretive guidance. In practice, sustaining the law-fact divide is essential to preserve legitimacy, efficiency, and predictability for states, investors, and the broader dispute settlement system.

Nasser Wahbi, Opting Out of the Qatar International Court’s Jurisdiction by Conduct

This article addresses the legal question of whether a party may waive the jurisdiction of the Qatar Financial Centre (QFC) Civil and Commercial Court, commonly known as the Qatar International Court (QIC), through its conduct, in light of the 2024 HKA Global ruling. The Qatari legislator has delineated the jurisdiction of the QIC, while allowing parties to opt out under specified conditions. The HKA Global case concerned parallel proceedings before the QIC and the ordinary Qatari courts involving a QFC-registered entity. Although the QIC was in principle the competent forum, the Qatar Court of Cassation upheld the jurisdiction of the ordinary courts, holding that the claimant’s initiation of proceedings before those courts constituted a tacit waiver. The QIC subsequently declined jurisdiction, invoking the principle of res judicata. This decision affirms that waiver of QIC jurisdiction may occur by conduct and underscores the need for enhanced judicial coordination between the QIC and Qatar’s ordinary courts to ensure legal certainty and procedural coherence within Qatar’s dual judicial system.