The advantages of parties settling their disputes are self-evident. While there are several settlement facilitation techniques that arbitral tribunals have developed (see Carrara, Sussman & Berger and Vysudilova & Kirtley), arbitral institutions have remained in the background. At the 8th ICC European Conference in March 2024, the message conveyed by the parties was loud and clear: arbitration rules should include language for settlement slots or windows. This would encourage the companies’ management to manoeuvre settlement negotiations with more confidence once the arbitration has commenced. At the same time, such codification will incentivize arbitrators to familiarize themselves with settlement facilitation techniques and successfully employ them.

Recent Trends in Settlement Facilitation

Recent trends in settlement facilitation are reflected, for example, in the ICC’s 2023 statistics, which show that while 870 cases were registered, as many as 364 cases were withdrawn before a final award was rendered, the absolute majority (90%) of which was based on the parties’ joint request or a request by one party that was made without any objections from others. In addition, 34 proceedings ended with an award by consent. These statistics follow the 2021 amendments to the ICC Rules in Appendix IV on case management techniques, empowering the arbitral tribunal to encourage the parties to consider settlement.

More progressively, Article 26 of the 2018 DIS Arbitration Rules obliges the arbitral tribunal to discuss with the parties the possibility of amicable settlement of the dispute or of individual disputed issues.

Indeed, users appear to be increasingly willing to accept the role of an arbitrator in facilitating settlement irrespective of their geographical background (Berger & Jensen; see also 2021 Survey explained in “Arbitrator Techniques and their (direct or potential) Effect on Settlement”).

Suggested Institutional Provisions

In light of the recent trends, the natural next step is for arbitral institutions to catch up and proactively welcome settlement prospects during arbitration proceedings.

To this end, the authors have proposed several draft provisions, each accompanied by an explanatory commentary. These provisions attempt to capture the relevant elements for settlement facilitation during arbitration proceedings.