Arbitral tribunal-led settlement facilitation in international arbitration

Abstract Recent surveys confirm that the users of arbitration have a growing interest in arbitral tribunals that are not only capable of adjudicating but also resolving their disputes. The International Chamber of Commerce (‘ICC’) Commission on Arbitration and Amicable Dispute Resolution (‘ADR’) published a report on 23 July 2023 claiming that we should no longer question whether an arbitral tribunal can take steps to facilitate settlement but rather focus on how this can be achieved. This article seeks to confirm that there currently exists no substantial legal impediment to arbitral tribunal-assisted settlement facilitation in international arbitration, provided that informed consent is given by the parties and procedural guarantees remain safeguarded. The analysis occurs in a landscape of natural tension between the benefits stemming from settlement facilitation, mainly relating to time and cost efficiencies, the need to preserve the impartiality and independence of arbitral tribunals, and the integrity of the award if settlement attempts were to fail. This article delineates the ‘safe boundaries’ of settlement facilitation practices and then confronts those boundaries with the more audacious forms of settlement facilitation, including chairing settlement discussions, expressing preliminary views, and offering settlement proposals. It then goes on to suggest some practicalities relevant to the implementation of settlement facilitation practices.