When Arbitrators Facilitate Settlement: Towards a Transnational Standard: Clayton Utz/University of Sydney International Arbitration Lecture

Abstract

In the last decades, the law and practice of international arbitration worldwide has increasingly evolved towards greater uniformity. There remain though a few trouble spots for which harmonization appears more difficult to achieve. The role of the arbitrator as settlement facilitator appears to be one of these trouble spots. At the same time, the search for increased efficiency is one of the main concerns of contemporary justice, including arbitration. Hence, the topic of this article which examines the present state of the law and practice to determine whether a uniform standard may be emerging and what its content may be. On the basis of comparative research and field observation, the author notes that the cultural and legal background of an arbitrator may well influence the latter’s tendency to actively contribute to the amicable settlement of the dispute or not. The author then reviews the pros and cons of an arbitrator becoming involved in settlement facilitation. The main advantage is the increased efficiency of the dispute settlement process, while the main drawback lies in the threat to the impartiality of the arbitrator should the settlement fail. In the light of her analysis, the author concludes that a transnational standard may well emerge on this issue as it has for many other topics of arbitration law in the recent past. She then sketches the contours of such standard. In brief, an arbitrator acting to facilitate settlement must seek the parties’ informed consent to the process and safeguard due process and equal treatment and his or her impartiality. These requirements impose certain procedures which distinguish settlement facilitation in arbitration from mediation, yet make it a valuable tool to increase the efficiency of dispute resolution.

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