The Contents of Journal of International Arbitration, Volume 43, Issue 2 (April 2026)
May 5, 2026
We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:
Björn Arp, The First Procedural Order: Selected Issues Raised Before National Courts
This article examines the First Procedural Order (PO 1) in arbitral proceedings through the lens of national jurisprudence. In recent years, a growing body of national case law has emerged that delineates the limits of party autonomy, the minimum standards for party participation in issuing a PO 1, and the enforceability of jurisdictional determinations and other procedural aspects contained within it. This article surveys and contextualizes these judicial decisions within the broader practice of arbitral tribunals under various international arbitration rules. The article concludes that decisions taken in the PO 1 may affect the interpretation of the arbitration agreement, the scope of the arbitrators’ Kompetenz-Kompetenz (and thus the competence of national courts to review arbitrability), the powers of the arbitrators during the proceedings, and the enforceability of the final award. In essence, the PO 1 sets the ‘tone’ of the arbitration.
International arbitration balances private ordering with public authority, demanding both arbitrator independence and credible accountability. Across leading jurisdictions, such as France, Brazil, England, and the United States, rules on arbitrator liability are fragmented: most recognize qualified or quasi-judicial immunity, but diverge on legal characterization, thresholds for fault, and available remedies. This article diagnoses two systemic gaps: (1) unilateral institutional waivers cannot calibrate duties to the lex arbitri or mandatory law, and (2) parties rarely consent expressly to liability standards. It proposes a contractual solution: party-arbitrator agreements (PAAs) concluded at the outset of proceedings that (a) characterize diligence as a bestefforts duty, (b) adopt the most-protective immunity permitted by the seat’s law, (c) confine redress to procedural harm (restitution of arbitrator fees and institutional costs), and (d) anchor forum and governing law in the courts and law of the seat. A model PAA and implementation protocol are offered to operationalize this framework while preserving voluntariness and judicial oversight. The authors envision that this could result in greater predictability and fewer satellite suits.
This article proposes a two-track framework for using artificial intelligence in international arbitration while preserving enforceability under the New York Convention (NY Convention) and due-process minimums. Track one, Artificial Intelligence (AI)-assisted arbitration, keeps human arbitrators fully responsible for fact-finding, legal reasoning, and the signed award, while using AI for document handling, translation, retrieval, and drafting under disclosure, symmetric access, and strict version control. Track two, AI-exclusive arbitration, treats a certified AI pipeline as the merits decision-maker and is recommended only for narrowly scoped sandbox pilots (highly structured, low-value, high-volume disputes) with explicit consent, frozen configurations, integrity logging, and a human legality/due process backstop. To help courts apply existing refusal grounds without reopening the merits, we introduce a proportional AI Usage and Provenance Dossier (tool/version disclosure, hash manifests, sealed logs, exception reporting, and explicit explainability limits). We connect these operational controls to EU compliance anchors (General Data Protection Regulation (GDPR) and the EU AI Act) and to practical threats (prompt injection, retrieval poisoning, drift, and log omission), emphasizing that cryptographic artifacts provide tamper-evidence for recorded steps, not guarantees of correctness or completeness.
Tomoko Ishikawa, Mediating ‘Just Energy Transition’ Disputes
Disputes concerning ‘just energy transition’ have grown in both number and significance. Such disputes arise both from the impact of energy transition projects on local communities and from claims by foreign investors affected by fossil fuel phase-out policies. At their core, these disputes concern the balance between the needs of the transition to low-carbon energy and its negative impacts. Just energy transition disputes typically involve multiple stakeholders, overlapping legal regimes, complex scientific questions, a strong public interest, and considerations of human rights. Against this background, this article explores the potential of mediation as a mechanism for managing and resolving just energy transition disputes. It highlights mediation’s potential to accommodate diverse stakeholders and normative frameworks, engage with scientific expertise, and maintain stakeholder relationships. This article also discusses the concerns over the use of mediation for just energy transition disputes involving public interest, regarding confidentiality, accountability, and power imbalances between the parties. It considers how mediation processes can be designed to realize mediation’s potential while addressing these concerns. It proposes key principles for mediation, including transparency-enhancing measures and default co-mediation. Fostering mediation as a forward-looking dispute settlement mechanism is essential to supporting a smooth energy transition. Providing a carefully tailored design for the mediation processes represents a crucial step towards achieving this goal.
Arbitration has been gaining exponential popularity for years now, with many litigants opting for it in lieu of court proceedings. However, this popularity has also raised multiple questions and concerns. One of the leading questions asked about arbitration is whether it is truly ethical. This article examines the general issues within an arbitration, including those related to appointment of an arbitrator by the parties and impartiality, which is where the abovementioned question of ethics arises, and the aftermath of such appointments. The article employs a qualitative research methodology, drawing on the opinion of multiple academic authors as well as established statutes, rules and case law to assess the benefits and drawbacks of arbitration as a dispute resolution tool.
Party autonomy contributes heavily to this discussion, as this is the starting point where the possibility of unethical practices begins. Parties to an arbitration have the autonomy to choose their own arbitrators, and each will, of course, always choose someone likely to decide the case in their favour. There have been instances where such appointments have raised serious concerns about impartiality and fairness in an arbitration, all of which will be scrutinized in this paper.
When in the context of the constitutional crisis in Venezuela after a fraudulent election ‘won’ by President Maduro in 2019, the Venezuelan National Assembly declared that Mr Guaidó was the President of the Assembly, states had to take a position on who the government of Venezuela was. This article examines states’ reactions on the diplomatic front on this issue of government recognition. The main focus is on how investor-state arbitration tribunals have addressed the issue of government identification and recognition and the controversial question of representation in proceedings involving Venezuela. The issue of conflicting pretensions by competing authorities claiming to be the representative of Venezuela in arbitration proceedings has been a controversial question in the field of investment arbitration in recent years. I will show that the case law that emerges from these awards provides a solid and coherent set of rules and principles which will be very helpful to future investment tribunals faced with similar competing claims to governmental status. What these tribunals have said and what they did in the specific context and limited scope of the crisis in Venezuela has much broader implications both in terms of theory and practice.
This article analyses the recognition and enforcement of foreign arbitral awards in Iran under the 1958 New York Convention, with particular attention to the interaction between Convention obligations and Iranian constitutional and procedural constraints. After clarifying the Iranian taxonomy of awards (domestic, international, foreign) and the resulting enforcement tracks under the Civil Procedure Code (CPC), the Law on International Commercial Arbitration (LICA 1997) and the New York Convention, the article maps the practical sequence of enforcement before Iranian courts, including jurisdiction, filing requirements, time limits, interim relief, stays, and security. It then synthesizes recent, largely unpublished judicial decisions to identify patterns in courts’ use of Convention Article V defences – especially public policy (including monetary regulations and Sharīʿa-based interest prohibitions), commerciality, arbitrability (with the overlay of Article 139 of the Constitution), and procedural objections (Article IV: documentation, service, and translations). While several chambers increasingly align with international best practices, recognizing their limited role vis-à-vis annulment at the seat and narrowing merits review, outcomes remain sensitive to documentary formalism and public-policy framing. The article concludes with practical drafting and filing guidance to enhance predictability when targeting assets in Iran, and policy suggestions on transparency and specialization to consolidate this evolving jurisprudence.
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