The Contents of the ASA Bulletin, Volume 43, Issue 4 (2025)

In her message, Listen to the Users!, incoming ASA President Andrea MEIER shines a spotlight on the very useful whitepaper on document production recently published by ASA’s User Council, which combines guidance on the prevailing standards with practical measures that can be implemented either before a dispute arises or during arbitration proceedings.

Articles

Large language models are reshaping arbitration and transforming the work of counsel and arbitrators alike. Anne-Catherine HAHN examines the existing and emerging framework governing the use of AI-based tools in arbitral proceedings seated in Switzerland, and the possible ripple effects of the EU’s AI Act. She concludes that self-regulation, coupled with case-specific disclosure duties and other procedural safeguards, is generally better suited to preserve the integrity of arbitration than new legislative controls. (Anne-Catherine HAHN, Limits to the Use of AI Tools by Swiss Arbitral Tribunals: a Tentative Analysis.)

Consent and party Autonomy are key pillars of international arbitration – but in arbitrations in the construction, energy and infrastructure sectors, those principles are stress-tested. This is because these arbitrations often require an efficient resolution while involving inter-related disputes arising from multiple contracts, pushing the boundaries of arbitration agreements. Traditional tools – ‘group of companies’ doctrine, estoppel, joinder and consolidation – are no longer enough. Emerging solutions such as ‘informal parties’, cross-use of awards, and non-party disclosure orders offer helpful alternatives. Hamish LAL, Nikita PANSE and Ece TAHAN explore these alternative solutions and show that they can increase predictability and efficiency in multi-party and multi-contract disputes. (Hamish LAL, Nikita PANSE, Ece TAHAN, Multiplicity in International Arbitration - Procedural Solutions.)

Bajar SCHARAW reports on a rare twist in EU-investment arbitration: a “mixed” case, where EU and Swiss investors raised treaty claims against Poland. The state objected to jurisdiction based on the CJEU’s Achmea ruling, which found intra-EU investment arbitration incompatible with EU law. The tribunal disagreed but ultimately dismissed the claims on the merits and ordered the investors to bear all arbitration costs jointly. The case took an unexpected turn in the set-aside proceedings in Sweden: both sides flipped their positions on jurisdiction. The Swedish Supreme Court clarified that the  Achmea doctrine applies only to intra-EU disputes, not to investors from non-EU states. It overturned the Svea Court of Appeal’s annulment of the entire award and reinstated the tribunal’s costs decision for the Swiss investor alone. The case highlights questions about consistency in legal argumentation and the evolving landscape of intra-EU investment arbitration and related court proceedings in Europe. (Bajar SCHARAW, Achmea Upside Down: Role Reversal of Parties in Set-Aside Proceedings on Mixed Intra-EU Investment Arbitration.)

In the context of the ongoing EU reform of the international investment law regime, the ‘new-generation’ Netherlands Model BIT (2019) has been praised for championing foreign investors’ Corporate Social Responsibility (‘CSR’). Noah A. BARR examines the interplay between CSR and international investment arbitration and investigates how the Netherlands Model BIT (2019) deals with CSR and whether this innovative model may be regarded as a ‘trailblazer’ in the CSR reform. (Noah A. BARR, The Netherlands Model BIT (2019): A ‘Trailblazer’ in CSR Reform?)

Swiss Federal Supreme Court Decisions

• 4A_104/2024, Urteil vom 31. Juli 2024 [Abusive termination of Design-Build-Finance-Operate contract by contractor – Allegations of corruption]
• 4A_504/2023, Arrêt du 22 février 2024 [Public policy – Signature of contract by double hatting sport official – Abuse of right – Personality rights]
• 4A_240/2023, Urteil vom 23. November 2023 [Legitimate interest to annul award denied – Freedom of association not part of public policy]
• 4A_258/2023, Arrêt du 19 juin 2023 [Player has no standing to be sued in federations’ dispute]
• 4A_112/2024, Arrêt du 3 juillet 2024 [Due process – Prohibition to take the parties by surprise – Reliance on facts outside the arbitration record]
• 4A_552/2023, Arrêt du 18 mars 2024 [Award not extra or ultra petita – Boundaries set by prayers not exceeded]
• 4A_558/2023, Arrêt du 14 mai 2024 [Procedural Order no 1 – Late production of decisive document exceptionally admitted]
• 4A_564/2023, Arrêt du 26 janvier 2024 [Public policy – Excessive sport sanction]
• 4A_575/2023, Urteil vom 18. April 2024 [Repeat appointments – Challenge late and unfounded – Infra petita – Public policy (1.5% monthly interest rate)]
• 4A_245/2023, Sentenza del 17 luglio 2024 [Poor quality of award not a violation of the right to be heard]
• 4A_5/2023, Sentenza del 4 marzo 2024 [Interpretation of a forum election clause superseding a prior arbitration clause]
• 4A_74/2023, Verfügung vom 10. Mai 2023 [Post award settlement – Withdrawal of annulment request]
• 4A_598/2023, Arrêt du 2 septembre 2024 [No right to ask question to author of a witness statement]
• 4A_442/2023, Arrêt du 11 janvier 2024 [Time limit to render award – Late award – No violation of public policy]