The ICC Commission on Arbitration and ADR has published guides on "Effective Conflict Management" and "Facilitating Settlement in International Arbitration"

 This ICC Commission on Arbitration and ADR (Commission) brings together global experts and practitioners in the field of arbitration and ADR, with currently over 1,300 members from some 100 countries. Amongst other things, it seeks to develop tools for efficient and cost-effective dispute avoidance and settlement by means of arbitration, mediation, expertise and dispute boards in order to enable ICC dispute resolution to respond effectively to users’ needs.

This week the Commission published two guides – a guide on "Effective Conflict Management" and a guide on "Facilitating Settlement in International Arbitration". Both of these documents contain useful guidance for parties for the efficient prevention and resolution of disputes.

The guide on Effective Conflict Management focuses on assisting businesses to (i) avoid the escalation of disputes and (ii) efficiently resolve disputes that could not be avoided. The guide is split into two parts: the first part outlines the approaches that can be taken by businesses without any assistance (such as internal company policies, drafting and deploying effective dispute resolution clauses and internal awareness of conflict management), and the second part covers the ICC's services (including mediation, expert proceedings, dispute boards and disputes related to trade financial instruments) and how and when to use them effectively.

The guide on Facilitating Settlement in International Arbitration provides guidance on how arbitrators and arbitral institutions can take steps to facilitate the settlement of disputes. Although the traditional view in most jurisdictions has been that the arbitral tribunal refrains from direct involvement in facilitating settlement, the guide states that this view has evolved. The debate has now moved on from whether arbitrators and institutions should take steps to facilitate settlement to how that should be done. Against this background, the guide looks at a number of ways in which settlement can be facilitated by arbitrators and institutions, including via ongoing case management techniques, mediation/settlement windows, giving preliminary views and chairing of "settlement conferences".

Comment

In seeking to resolve disputes most effectively and efficiently, a user-driven approach leads to better outcomes for all parties involved. Where arbitration is necessary to resolve a dispute, exploring and understanding the potential for settlement can nonetheless be an important step in assessing and quantifying the pros and cons of a particular step or strategy in the arbitration. In addition, preventing conflicts from escalating during the course of an arbitration and understanding the potential scope for alternative means of resolution is always important.  With this in mind, these guides are helpful tools for parties and lawyers alike.

For more information, please get in touch with Simon Chapman KC, Partner, Charlie Morgan, Partner, or your usual Herbert Smith Freehills contact.