Cross-Fertilisation in International Commercial Arbitration, Investor-State Arbitration and Mediation: The Good, the Bad and the Ugly?

[This is the title of the 6th Annual ADR Address for the Supreme Court of New South Wales, co-organised by the Australian Disputes Centre. It was orginally to be presented on 2 November 2023 but my e-bike accident meant deferring it until 22 February 2024! The public lecture includes several comparisons to developments in Japan and other Asian countries. Registration and other information regarding this lecture event, including the forthcoming paper, are available via The Introduction is reproduced below, a few more details are published on 12 February 2024 via the Kluwer Arbitration Blog, and my draft Powerpoints for the public Address are here. Past presenters and topics were:

2018 – Chief Justice Tom Bathurst –“ADR, ODR and AI-DR or, Do We Even Need Courts Anymore?”

2019 – Her Excellency the Hon. Margaret Beazely AO KC – “Conflicts of Interest in Commercial Arbitration”

2020 – The Hon. Justice Andrew Bell – “The Rise of the Anti-Arbitration Injunction”

2021 – The Hon. Justice Julie Ward – “Online Dispute Resolution in the Age Covid-19”

2022 – The Hon. Robert French AC – “ADR and the Elusive Butterfly of Social Justice”

I thank Chief Justice Bell and the Supreme Court of New South Wales for hosting this event, and Deborah Lockhart and her team at the Australian Disputes Centre for organising this Annual ADR Address. I particularly appreciate their flexibility in deferring the presentation date after my e-bike accident late last year, and for everyone’s attendance today instead. I acknowledge the Gadigal People of the Eora Nation as the traditional custodians of this land, along with their elders. I also acknowledge the elders from the judiciary who have presented the past five Annual Addresses, which I refer to in my paper soon available via the ADC webpage, and I am grateful for other information and feedback on earlier drafts from them and several others. As my paper is now too long to present verbatim, and Alternative Dispute Resolution is all about flexibility, I will mainly present this Address around these Powerpoint slides (also available in draft via my University of Sydney blog).

  1. Introduction

International arbitration (IA) has burgeoned especially since the 1990s, including across the Asian region (as elaborated below in Part 2). The growth originated in international commercial arbitration (ICA), but it has been bolstered especially over the last 10-15 years from mostly now treaty-based investor-state arbitration (ISA). However, as in the 1990s, concerns are again building about escalating delays and especially costs (Part 3). This is due not just to the growing complexity of transactions and therefore disputes. Other factors contributing to costs and delays arguably include IA still having no real competitors for cross-border dispute resolution, the growth of large law firms and the billable hours culture, conservatism about controlling legal costs (eg via caps on fees or sealed offers), the double-edged sword of confidentiality, and the proliferation of soft law instruments. 

There has been quite extensive discussion in case law and commentaries about the relationship between ICA and international litigation conducted through courts, as part of an overall system for resolving cross-border commercial disputes.[1] The present paper takes an even more encompassing view. It teases out some connections or influences among ICA, ISA, international and domestic mediation, which may be or become more or less productive, particularly from the perspective of reducing costs and delays.

Cross-fertilisation from mediation practice has not yet borne much fruit globally in the form of hybrid Arb-Med, where parties authorise arbitrators themselves to act as mediators (Part 4), in ISA and even in ICA. Instead, Med-Arb and other multi-tiered dispute resolution clauses (involving separate neutrals) are becoming more prevalent in cross-border transactions, aiming to reduce the costs and delays associated with proceeding to IA (Part 5). However, the spread has not been uniform across the world of ICA, and has not yet impacted much on investment treaties and therefore ISA. In addition, cross-fertilisation partly from ISA regarding the consequences of non-compliance with pre-arbitration steps in such clauses is causing complications, although it may lead to constructive solutions in ICA as well as ISA. Overall, various cross-overs are already evident among ICA, ISA and international mediation, and such cross-fertilisation needs to be tracked and channelled into the most productive interactions.

[1] See, eg, Michael Hwang, ‘Commercial Courts and International Arbitration—Competitors or Partners?’ (2015) 31(2) Arbitration International 193; James Allsop and Samuel Walpole, ‘International Commercial Dispute Resolution as a System’ in Sundaresh Menon and Anselmo Reyes (eds) Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic (Hart 2022) 43; Franco Ferrari and Friedrich Rosenfeld, ‘Deference in International Commercial Arbitration: Setting the Stage’ in Franco Ferrari and Friedrich Rosenfeld (eds), Deference in International Commercial Arbitration (Wolters Kluwer, 2023) 3.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.