For a cross-border system of dispute resolution that frequently involves participants from different countries, the challenge posed by COVID-19 is acute. However, given that arbitration is a flexible and consensual process, it is well positioned to respond swiftly to these challenges. In a short time, the international arbitration community – led by the major arbitral institutions – has collaborated to find ways to maintain access to justice in a timely and efficient manner.
A disgruntled party on the losing end of an award will sometimes seek to have the award annulled or set aside at the seat of arbitration. However, even if such a challenge at the seat is successful, that is not necessarily the end of the matter. Awards that are seemingly 'dead and buried' can sometimes be resurrected or haunt the losing party in other jurisdictions where enforcement of the award is sought.
One of arbitration's cornerstone principles is that parties can agree on how to resolve their disputes. However, parties commonly agree on asymmetric, rather than symmetric, rights. The classic case is where only one party has the right to refer disputes to arbitration, but the other must litigate. Parties wishing to include asymmetric arbitration clauses are advised to consider carefully the courts' approaches to such clauses in all relevant jurisdictions.
The International Centre for Settlement of Investment Disputes (ICSID) is an important institution for the settlement of investor-state disputes. A review of its 2016 case statistics is a useful indicator of recent trends in international investor-state dispute settlement, including the state parties and economic sectors involved, the success rates of states versus investors and the changes to the composition and diversity of ICSID tribunals.
Third-party funding can provide access to justice for under-resourced parties and a more convenient financing structure for adequately resourced parties. However, despite the benefits, there are concerns about funding and there is a level of risk involved. Clear insight into the potential downsides and sufficient risk preparation are therefore essential when making a decision on funding.