This chapter reviews the enforcement of IHL through a range of legal and non legal mechanisms. It first addresses the obligation to respect and ensure respect for IHL, protecting powers, the international humanitarian fact finding committee and the role of human rights bodies. State responsibility, state immunity and acts of state and political question doctrines are then discussed. Reparations, including state reparations, individual reparations and reparations by armed groups are then reviewed. UN immunity, UN enforcement and responsibility in peacekeeping operations, liability and reparations in peacekeeping operations and criminal responsibility in peacekeeping operations are also addressed. The use of belligerent reprisals in the enforcement of IHL and armed groups and enforcement of IHL is then discussed. In conclusion the chapter considers United Nations Action in enforcement of IHL.

This chapter explores third-party mediation and peacekeeping. Mediation, along with arbitration and adjudication, is a form of peacemaking. Peacekeeping means maintaining durable peace after conflict has ended. The UN is one of several kinds of actors that engage in peacekeeping missions. They leverage the costs belligerents would pay if they return to war, provide information, reduce uncertainty, and provide political cover to facilitate political concessions. Also discussed in the chapter are peacebuilding efforts, including developing the proper political, legal, social and economic infrastructure to stabilize the security environment. Challenges for third parties seeking to engage successfully in peacekeeping and peacemaking include the difficulties they face in providing long-term incentives for peace, the possibility of distorting information flows such that peace is less stable, and being sensitive to local contexts. The chapter applies many of its concepts to a quantitative study of the causes of peacekeeper sexual exploitation and abuse, and a case study of third-party involvement during the conflicts in the Great Lakes region of Africa in the 1990s and 2000s.

This chapter analyses the policies and practices related to resolving investor–state disputes through ISDS. In this area, three broad themes emerged from our data. First, there are practices of forming the defence strategy for specific investment arbitrations and handling ISDS proceedings. The main issue is whether to engage lawyers from private practice and, if so, to what extent. Second, we discuss the matter of coordination and communication between various governance actors during ISDS proceedings. The third issue is that of dispute prevention. Given the stakes, risks, and challenges resulting from ISDS disputes, many governance actors dealing with IIAs realise that dispute prevention is crucial in internalising the IIA disciplines. This section focuses on various training and educative programmes for bureaucrats that were designed, proposed, or implemented to increase the knowledge about and awareness of IIAs within the broad sphere of national governance. We end with a discussion on the blurring of the public–private divide through the engagement of private expertise in the service of the public when defending ISDS cases.

When a treaty prescribes how disputes can be settled, it usually provides for a preliminary phase involving direct negotiations or consultations. In the case of bilateral agreements, more binding mechanisms tend to be found in agreements with more specific obligations, or those directly affecting individual interests, such as trade. Otherwise, bilateral agreements will often specify that disputes are to be resolved by the diplomatic channel or other avenue of voluntary settlement. Both bilateral and multilateral treaties may provide for conciliation or mediation. The parties may, however, wish to resort to compulsory binding settlement. The two principal features are a prior agreement to submit disputes to a third party, and a provision that the decision of the third party is legally binding on the parties in dispute. Procedures of arbitration and judicial settlement, including the International Court of Justice, are analysed. In respect of remedies, the chapter examines countermeasures and the principles underlying them, sacrosanct obligations and necessity.

Early modern people wrote a lot about peace. The Christian logic of reconciliation was facilitated by a combination of the judicial system, community pressure and ubiquitous letters of pardon. Civil society mediated conflict through its institutions: the efflorescence of law courts, civic institutions and associational groups, such as guilds and confraternities, were the greatest legacy of the late Middle Ages. The desire for a well-regulated and ordered society was enshrined in the term ‘police’, which began to be used from the fourteenth century. It signified the regulations and the means that would advance the common good through the securing of peace and order, protecting private property and improving the conditions of life. In urban communities, in particular, the law articulated and ordered social, economic and political relationships that underpinned the ideal of good neighbourliness. This chapter seeks to go beyond the existing literature on peacemaking and ask what happened after the settlement, exploring the ways in which people lived alongside their former enemies and assessing the ways in which the official justice was modified by people to suit their emotional and spiritual needs.

This chapter follows the Lena Goldfields Arbitration of 1930 and examines the legal practices deployed by the parties and the tribunal in their relation to the internationalisation of concession agreements. The tribunal was constituted after a dispute arose between a British company and the Soviet state over the fate of a concession agreement granted in 1925 concerning goldmines in Siberia, and it is the only international arbitration the Soviet Union ever participated in. The chapter takes as a starting point that the socialist revolution in the Soviet Union led to a fundamental change in the structure of the legal order, especially with regard to property rights. Instead of private individual ownership, Soviet law prescribed collectivised state ownership. The chapter argues that the tribunal elevated the jurisdiction over the Lena Goldfields concession agreement to the international level in order to override the application of socialist Soviet law. This elevation was achieved by relying on legal techniques concerning the competence of the arbitral tribunal and the applicable law to the concession agreement. While the Soviet Union maintained that the dispute was a matter of domestic jurisdiction, the company and the tribunal claimed the jurisdiction of an international legal order.

The literature on international arbitration has been fragmented, because the practice of international arbitration has, for some time, also been fragmented. In the space between the well-established (but relatively isolated) communities of legal practice that operate in the ‘public-law’ arbitration of interstate disputes and the ‘private-law’ arbitration of international business disputes, there has been the relatively recent development of ‘mixed’ investment arbitration that has caused those two legal communities to move closer to one another, and to overlap. This has enabled the consideration of international arbitration and its legal framework as a unified subject of inquiry. In this paper, the author explores the commonalities that this perspective highlights in terms of “sources.”

In the first part of the paper, the author considers the development of the different worlds of international arbitration since the late nineteenth century by dwelling on elements that are often overlooked when the recent story of international arbitration is told. In the second part of the paper the author provides an overview of the potential features, and the hurdles that stand in the way, of a unified representation of international arbitration.

This article examines the case law of the European Court of Human Rights and the European Commission of Human Rights with regard to arbitration. It focuses on the right to a fair trial in civil matters covered by Article 6 ECHR and the right to the protection of property enshrined in Article 1 of Protocol No. 1 to the ECHR.

The full set of the guarantees provided for by Article 6(1) ECHR is applicable only for compulsory arbitration. The Court’s cases under Article 6 mainly concern the control by national courts of voluntary arbitrations. The article analyses the requirements for the voluntary nature of arbitration and scrutinizes when a waiver of the right to a court is effective.

The article also deals with the institutional and procedural requirements of the right to a fair trial in the context of arbitration and the effect of a waiver of the right to a court on them.

The Court has recognized that final and binding arbitral awards are possessions in the sense of the Convention. Therefore, the article analyses the consequences of the quashing or annulling of final and binding awards or their non-enforcement on the rights protected by Article 1 of Protocol No. 1.

Scholars have explored the impact of the unconscious on legal decision-making. Research has shown that, as with all human beings, intuitive reactions play a significant role in judges’ and arbitrators’ decision-making. This article examines the unconscious intuitive processes in the arbitration process and offers suggestions to foster a more robust deliberative overlay and improve the quality of decisions by arbitrators. It also provides suggestions for counsel’s consideration to aid them in capitalizing on these unconscious influences. In order to provide a context that reflects actual arbitrator decision making, the results of a survey of arbitrators is reported where they illustrate and amplify the psychological influence discussed.

The need to reform international commercial arbitration has to this day timidly–if not hardly–been acknowledged. The authors argue in this contribution that such timid inquiry has in any event been initiated for the wrong reasons. International commercial arbitration should not be reformed merely in response to the ongoing legitimacy crisis of international investment arbitration. To the contrary, time is ripe for a discussion about the general need for reform of international arbitration, as it has become the quasi-exclusive forum selected for the settlement of investment but also international commercial disputes. The disputing parties’ fundamental role in consenting to arbitration cannot exonerate any type of international arbitration from an inquiry as to the greater need for transparency and consistency of the arbitral decision-making process as well as accountability of arbitrators. Acknowledging the need for reform, however, does not imply submitting all types of arbitral dispute resolution to the Procrustean ISDS reform bed. Enhancing international commercial arbitration’s legitimacy inevitably requires tailor-made reform.

Evidence – its marshalling, disclosure and presentation – lies at the heart of many, if not most, international arbitration proceedings. Yet, perhaps more than any other aspect of arbitral practice, evidentiary issues lay bare the significant divergences between the common and civil law traditions. As result, evidentiary questions can sometimes be among the most contentious that arise in an international arbitration, particularly when a dispute involves parties and/or counsel from different sides of the common law/civil law divide. In this chapter, we outline the process by which evidence is used in international arbitration and highlight some particularly thorny issues that can arise, including in relation to the document disclosure process, the admissibility of evidence and the use of evidence at an evidentiary hearing. It is important that parties and counsel consider these evidentiary issues carefully – and early in the arbitral process. Although every tribunal is different, international arbitration is fundamentally party-driven. Parties should therefore be proactive in fostering an efficient, effective, and fair process as it relates to the gathering, production and use of evidence in an international arbitration proceeding.

Private international law is often considered and antiquated and formalistic methodology, not particularly relevant for international commercial arbitration. Actually, private international law – in all three its components: conflicts of jurisdiction, conflict of laws and recognition and enforcement of decisions – is crucial to international arbitration. Almost all issues that arise in connection with an international arbitration raise the question of the law under which they are to be solved and, very often, of jurisdiction. This contribution explores the different situations that raise issues of private international law in the context of international arbitration and identifies the most commonly adopted solutions. It also explains that, particularly as regards the applicable law, the rules of private international law applicable before domestic courts are not suitable when conflict of laws issues arise before arbitral tribunals. More generally, the point is made that in many situations the conflict of laws method does not yield satisfactory solutions because, either the relevant conflict rules are not clear, or they designate a national law that often will not contain a specific solution for arbitration. In any case, the conflict of laws method may lead to uncertainty and to a fragmentation of the answers to important arbitration law problems, which is at odds with arbitration’s aspiration to be an international dispute settlement mechanism with a predictable, uniform and non-parochial solutions.

Commercial parties engaged in international transactions will typically resist agreeing to submit disputes to their counterparty’s national court system due to the real or perceived ‘home court advantage’. While international arbitration solves the problem with respect to the dispute on the merits, the arbitrators’ authority ends with the rendering of their award, and they cannot compel compliance with the award if voluntary compliance is not forthcoming. For that, the prevailing party – now an award creditor – must turn to the national courts, where the ‘home court advantage’ can re-emerge: the place of arbitration may have been located in the award debtor’s state, giving its courts the power to annul the award; or the award debtor’s assets may be uniquely located in its home state, making that the only practical enforcement forum. And problems may be particularly acute where the award debtor is the State itself or a state-controlled entity. The present chapter considers a potential option for an award creditor whose commercial arbitration award is annulled on arbitrary or parochial grounds by the courts of the seat, or wrongfully denied enforcement in that or another jurisdiction: the use of investment arbitration to enforce commercial arbitration awards as a vindication of rights and remedies under international law.

This chapter investigates how ‘society at large’ interacts with the world of international arbitration, now and for the foreseeable future. This broad topic can be made more manageable by breaking down the interaction through four focus groups within society: the media, academia, arbitration ‘clubs’, and civil society NGOs. These groups provide services to the world of international arbitration but are mostly instead what Emmanuel Gaillard terms ‘value providers’ – seeking to influence its normative structure. This chapter also touches on international and professional organisations, which are also significant value providers.

One key question is whether and how international arbitration may be expanding or at least becoming more visible through the four focus groups. A second is whether it may be becoming more diverse and indeed polarised. The chapter presents empirical evidence of ongoing ‘lawyerisation’, hence renewed concern about costs and delays. It also considers the impact of burgeoning investor-state dispute settlement (ISDS) cases and coverage, especially in the general media. Analysis of newspapers in Australia and the United Kingdom as well as social media reports confirms that views about ISDS remain overwhelmingly negative – a new development that could increasingly shape the overall perceptions of international arbitration held within society at large.

This chapter addresses the question of why teach arbitration, what should be taught, and how it should b e taught. It does so from the perspective of one who believes the Vis International Commercial Arbitration Moot is one of the best pedagogical tools in legal education, and in particular for teaching arbitration. I begin with comments about Professor Eric Bergston’s vision that underlies the Vis Moot. In determining that arbitration should be taught in order to train the coming generations of arbitrators and arbitration counsel, I provide five core reasons for teaching arbitration. I follow with consideration of what should be taught, which must include not only doctrine and skills, but an understanding of the importance of arbitration to the rule of law generally. I close with some brief thoughts on how to teach arbitration and the importance of fitting the method to the teacher.