Aug 31st, 2025

Q. Prof. Lew, considering the early stages of international arbitration, could you describe its origins and development into a global practice?

Arbitration has been around for a long time, in its current guise certainly recognised for over a hundred years. If we look back historically, parties have always had disputes and have looked for ways to resolve them. In times when people lived in small villages, disputes would arise, and typically, someone like a village elder or religious leader would bring the parties together and try to help resolve the issue. What we now call mediation often took place, someone would intervene and try to help them reach agreement. If mediation failed, the mediator would impose a decision to resolve the issue. While this was common in family disputes, business conflicts—even a century ago—were dealt with more formally, especially in small communities. To avoid public fallout, parties preferred private settlement, and when that failed, arbitration emerged as the go-to solution.

When I entered the field, arbitration looked very different than it does today. That change is significant. So, when we talk about where arbitration is today and where it’s heading, it’s important to understand where it came from. Let me take you back about 50 years, to when I first started. London was already a major arbitration centre, particularly for shipping, commodities, and similar commercial matters. That was largely due to the popularity of English law and England’s status as a major commercial centre. For more international cases; like investment, construction, or mining disputes, people often turned to Switzerland or Paris. The ICC (International Chamber of Commerce) was the main institution involved at that time.

International arbitration in those days often relied on professors, those specialising in international law, private international law, commercial law, or comparative law. That was necessary because disputes often involved parties from very different legal traditions: common law, civil law, or Islamic law, for example. It wasn’t about one system being right or wrong, they were just different. Even today, cultural differences mean people may arrive at the same conclusion through different legal reasoning.

Back then, parties generally preferred arbitrators with a global outlook who could navigate different legal systems, especially after World War II. But with the end of colonial rule in the 1960s and 70s, countries like India and many in Africa gained independence, new perspectives on arbitration emerged, shaped by diverse legal and cultural contexts.

The question arose: should they adopt European arbitration practices or develop their own? Many did not want to follow those systems exactly. So, they began exploring the development of their own arbitration frameworks. Arbitration has become—formalised process in today’s world.

In contemporary arbitration, you see the influences from American, British, and even Indian styles. There’s constant arguing, followed by endless rounds of document production. It’s very much a common law approach: you go through exhaustive examination, have lengthy hearings, and even lengthier arguments. In the end, one party wins and one party loses. Is that really what arbitration is meant to be? In my view, that’s what arbitration has evolved into today.

Q. Considering the increasing interconnectedness of the global economy, how has globalisation fostered the wider adoption of international arbitration within emerging economies? Furthermore, in what specific ways have these economies emerged, and their economies adapted arbitration standards to their local needs within the global market?

I’m not sure to what extent arbitration assists economies as such. But as countries grow stronger and more involved in international business and economic transactions, they seek ways to resolve disputes. With globalisation, many formerly “developing” countries have become powerful players. They do business, manufacture, export, and actively seek investment from foreign investors. So, contractual deals are being made from which some disputes will inevitably arise.

There can be a small channel of transactions that you’re buying goods, food products, ingredients, or chemicals and metals for use in manufacturing. Equally, there can be investment contracts with people coming to invest in a country. I don’t know the statistics but expect most of those transactions to be generally successful and problem-free. But there’s always going to be a percentage where something goes wrong. For instance, there could be issues with a party’s payment obligations, or the quality of goods and services delivered, or issues of deliveries and so on. There could also be issues of government interference. Suddenly, unexpectedly, there is a dispute that needs to be resolved.

In such cases, when parties come from different countries/backgrounds, they often don’t want to go to the national courts; that’s where arbitration comes in. I think one of the interesting things in the change historically is that originally arbitration was limited. Certainly, earlier, going back as far as the 1970s, certain public matters, especially those involving governments, antitrust, competition, intellectual property or tax, couldn’t be arbitrated in many jurisdictions. That’s no longer the case. Today, it’s generally accepted that such issues can be resolved through arbitration, though questions may remain about review or challenge.

The shift in U.S. antitrust law back in the 1970s marked a major turning point. It highlighted a broader issue: when a party needs information or feels unfairly treated, and others are hesitant to get involved, the question often becomes political. What is the power of a government? Even when we don’t agree with a government, it still has the responsibility to run the country. If it believes something is in the national interest, it will act on it. Investors may feel they’ve been treated unfairly, and that may become a matter to be worth examining. That was the next step in developing the arbitration framework.

In the 1960s the United Nations, through the United Nations Commission of International Trade (UNCITRAL) started looking at arbitration rules. The only real system at that time was the ICC. UNCITRAL developed two sets of rules: for Eastern Europe—then under communist regimes—Western Europe, and Asia and Africa.

I can’t recall the exact political reason for this separation, but they served their purpose to some extent. More importantly these early efforts formed the background to the UNCITRAL Arbitration Rules, which came out in the 1970s. These rules were (and still are) of major importance; they are widely accepted and popular for ad hoc arbitrations and have been adapted by several institutions for their own use. Other sets of institutional arbitration rules were established such as the ICC and in the 1980s the LCIA.

The next major development was the UNCITRAL Model Law. Today, the UNCITRAL Model Law has been adopted in 93 States in a total of 126 jurisdictions. Many of these are federal systems, like the United States. Countries such as India, Hong Kong, Russia, Greece, Kenya, Nigeria, and several in Latin America have all adopted the Model Law, reflecting its wide international acceptance. Although lawyers in different countries think differently, they’re often interpreting the same text under the Model Law, e.g. what defines an arbitration agreement or arbitrator independence. This shared legal foundation gives judges and lawyers helpful guidance beyond their own jurisdiction, which is quite remarkable.

I leave open for your consideration this question: if the Model Law is so successful, why have the major arbitration jurisdictions (e.g. England, France, Geneva, Sweden, Switzerland and England) – all major arbitration hubs not adopted it?

Q. In this word of rapid advancements in AI and the increasing prevalence of virtual hearings, what do you see as the most significant challenges currently confronting the international arbitration community? Do you think major arbitration institutions have effectively adapted their rules and services in response to these technological shifts and the lessons learned from the widespread adoption of virtual proceedings?

For me, these new technologies are new and different from what used to exist. I think the biggest turning point was the COVID-19 pandemic. It made a big difference. I remember having to use video links to talk to witnesses for the cases I was involved in when meeting in person wasn’t an option. But the technology wasn’t always reliable back then; the connections would often break down. You’d have to call people two or three times, searching for ways to reconnect.

You don’t have such problems anymore, and that’s a significant change. In the last few years, I’ve had a fair number of arbitrations held entirely online, and they have worked out quite well. Of course, you’re not always physically together. I had a case last year with three arbitrators, where initially we were all in the same room, but one of them got COVID and couldn’t be with us so sat separately and participated virtually. In another case, on the final day, the chairman had COVID and had to sit in a corner of the room behind a screen while everyone else sat on the other side.

A major change has been the way we use that technology. The institutions have worked hard to adapt and make it easier for the parties. For example, earlier, an arbitration award had to be signed physically by all arbitrators. That became difficult when arbitrators were in different places – getting those signatures meant sending the award across countries. Now, many institutions accept electronic signatures and have their own ways to authenticate them. Unless challenged, such awards are accepted and enforced by courts (with some exceptions of course).

That being said, there are still some issues with using technology; for example, video links remain complicated. When you’re sitting in the same room, you look at one another, and you see the way people react to questions and generally. Online, that becomes harder. There are also concerns about witness examination: How do you ensure the witness is not interfered with? But the institutions have developed mechanisms and online protocols, as have many arbitrators, that parties can agree on to address these concerns. I think that’s a very important development.

Now, the latest issue is AI. Personally, I have difficulty with AI because I don’t fully understand it. But from what I understand, AI might be able to simplify how facts are collated, organized, confirmed, supported or not and contradicted. When both the claimant and respondent present sets of facts, there are areas of agreement, disagreement, and partial overlap. AI can analyze supporting evidence across the vast files to see which versions are more credible, and it can do this significantly faster than humans.

But that leads to the bigger question: do you want to hire the machine as your arbitrator, or do you want to hire a human being who has the brain and does the hard work? A machine might be cheaper and quicker (in some instances), but cost isn’t the only consideration.

The current thought is to be able to use AI for specific purposes like drafting the initial part of the award (i.e. procedural background, parties and counsel details etc.), summarising arguments, and going through the transcript and documents. But when it comes to making the actual decisions, as to rights and wrongs within a dispute, or the application of legal provisions, AI should not get involved with that. Some suggest AI could also help with specific tasks like calculating damages, especially when it’s just number crunching. In such cases, the tribunal may allow it. But the discretion rests with the arbitrators and not the machine. Indeed, arbitrators have feelings and intellect, for better or worse. Arbitrators’ decisions are shaped by what they see and what they hear, and what they understand. One may not like that, but they work subjectively using intellect, influenced by what they have seen and understand. But a machine is a machine. 

I think that as we go forward, AI is going to become a major factor. At the same time, we need to be cautious. Otherwise, we might as well close down arbitration and instead have machines do the work, where each party just inputs their facts, and the machine will come out with an answer. But will it be the right answer? I find that difficult to happen.

Q. Prof. Lew, with your incredible experience, can you tell us, how has the tug-of-war between the bedrock principle of party autonomy and the ever-louder call of public interest played out over the year?

I fear part of autonomy at the moment is being forgotten. We need to ask – whose arbitration is it? It’s the parties that decide they want to go to arbitration. Why? Because there’s a deal. One party agrees to do X, Y, and Z; the other agrees to A, B, and C. Then something goes wrong. And when that happens, they’ve agreed that the dispute will go to arbitration under a certain system. That’s a deliberate decision, which means they’re not going to a national court. That choice must be respected; it is a stand-alone contract (even if contained in a main contract.)

The parties have the autonomy to choose the institution, the seat of arbitration, the applicable substantive law, the arbitrators, and even the length and nature of the procedure. They can opt for a streamlined or more extended process, decide on having two or three rounds of argument, or even make it a documents-only arbitration. They may choose to exclude witnesses entirely. It’s entirely their decision.

This level of party-driven decision-making used to be more common.

However, nowadays, it seems that cases are increasingly being taken over by lawyers and then by institutions. Does the mechanism need to get back to a place where parties recognise that arbitration is about what they want. It’s not for the outsiders to determine. Arbitration is a private mechanism for dispute resolution. Whilst I think there have to be protections like due process, fairness, and due diligence, we must be cautious before letting outsiders define what arbitration is and how it should be run. It’s just like in real life; if you don’t like the product, you won’t buy it again. If parties feel arbitration no longer serves them, they’ll find another way to resolve disputes.

Investment Arbitration is slightly different, as it’s based on a treaty. But even there, treaties often give the parties a choice of different arbitral forums. State gives certain undertakings in the treaty, and those undertakings have to be interpreted. So, even in investment arbitration, there’s still a degree of party autonomy—how the case will be presented, what issues are to be decided, and so on.

That said, when a government or government entity is involved, public interest comes into play in a way that it doesn’t in purely commercial disputes. The government owes a duty to the people of the country. Citizens want to know why a government action went wrong, if it did. Or perhaps someone claims it went wrong. Governments engage in commercial activity too. For instance, let’s say a government has to buy computers for departments, textbooks for the schools, and medicines for public health. Such activities are all commercial investments. But things like education and healthcare are public interest functions. These are fundamental in any country. So, there’s always a question: where does the line lie between commercial interest and public interest? Let’s say a government signs a contract with a foreign company. If they insist that disputes be resolved in their domestic courts, the commercial party might hesitate or demand a different price, or they might refuse altogether. It depends on the country and the commercial party involved.

In my experience, public interest issues have come up very rarely in arbitration cases. But arbitrators do have to keep public interest in mind. Under Article V of the New York Convention, enforcement of an award may be refused if it violates international public policy. It’s another subject what is meant by ‘international public policy’. Some concepts are held to such high standards in certain countries that any award violating them simply won’t be recognised. This becomes especially relevant when the dispute touches on broader concerns like climate change, corruption, or violations of a country’s mandatory laws. Hence, the tension between public interest and party autonomy is a real and ongoing one in arbitration.

Q. Prof. Lew, with environmental and social governance (ESG) taking centre stage across the globe, what’s your take on how it might influence the public interest debate in investment arbitration? Can transparency play a role in fostering accountability and addressing these concerns without undermining party autonomy?

This is a complex topic. I’ve seen a few of these issues and think climate change is a political issue around the world of how fast and how far one goes. There are still many questions which go with it, but the main issue that is going to occur is on an investment level. For example, one goes to a country or a foreign party, and agree to supply a particular product, but later the product turns out to be damaging to the environment. Can you cancel the contract? We’d have to look at the contract itself.

But when the businessperson flew to the other country and back, it naturally resulted in significant air travel and pollution. If this kind of travel continues repeatedly, the environmental impact adds up. So, the question is: what can be done about it?

Now if all of a sudden, a party has a manufacturing facility and the government in that particular country decides to change the law and stop its production. Does this mean that the company should stop producing it altogether or should stop using certain kinds of chemicals because of what it’s doing for the environment? One would have to look at the circumstances of that particular case. But the question remains: would that justify the manufacturer turning to the customer and saying, “Terribly sorry, we can’t produce because our government has just changed the law; we’re not allowed to use this product” but we could, of course, do something with an alternative?

There’s also another bigger issue. Governments around the world have entered into treaties committing to targets, saying that by 2030, 2040, or 2050, they will be fossil fuel-free. And based on those commitments, they begin making changes. Now, the foreign investor says, “Hey, you’re undermining my business.” This is not purely commercial; it’s also an investment issue. “I came to your country; you agreed; you gave me the facility; you allowed me to set up a factory; I invested a lot of money; I’ve trained some people; I’m not only supplying my products to your country but I’m selling them elsewhere, and on that basis you’d have to compensate me. You gave me a 20-year contract; I was going to make X million dollars a year after my investment, so if you stop me after two or three or five years, you’re going to have to pay me a substantial amount.”

Well, how can we afford that? I, personally, haven’t seen it in my practice, but have seen other cases in which this was a problem. No doubt five years from now we will probably have more people doing that.

Q. Prof. Lew, in international arbitration, there’s no set “home law” or lex fori. Do you think the approach of international arbitration in choosing which law applies
better suits the parties from different legal systems than national courts?

In my view, parties, if they can, parties should always choose the applicable law and then negotiate the contract accordingly. Whether it’s Indian Law, English law, or any other law, write it down and be certain about it because it’s going to be your system. It gives you certainty. That’s always my first recommendation. Sometimes it’s not possible.

I remember many years ago I was working on a contract for a client. He came to me and said, “I’ve just got this wonderful contract.” He was running an English company doing business with a German entity. They couldn’t agree on whether English law or German law should govern the contract. So, they agreed to leave it open. I said, “Well, you can do that, but you don’t know when the dispute arises.” And he said, “Oh, we’ll never have a dispute. We get along so well. We’re good friends. We share everything. Nothing will ever go wrong.”

As it happened, they never did have a dispute. But if they had, the arbitration clause would have been triggered, and the arbitrators would’ve had to determine which law applied. That’s not always straightforward. In that case, the goods were being manufactured in Germany and were purchased by someone from the United Kingdom who was paying partly in advance for those goods. In addition, they were providing some of their technology to be used by the German company. So then, the question is which country is to which the contract is most closely connected? According to recent case law that’s the test, i.e.: which law does the contract have its closest and most real connection with?

Under traditional private international law, one would look at where the performance took place. However, this raises the question of what is the test of determining this? Was it where the goods were delivered? Where were they manufactured? Where was the payment made? Another test in some systems is the place of contracting. Let’s say the parties had such a good relationship that they met in Paris, had lunch, and signed the contract there. So, does that mean French law applies just because they signed it in France.

But what relevance does French law have to the actual performance of the contract? The French came around to the concept that in arbitration, you should choose a proper law of contract which was the law localized in the context of the contract obligations. I think India has a similar approach: you ask, with which law does the contract have its closest and most real connection? It’s a balancing act where the tribunal weighs up the factors. In a way, it’s a difficult issue. So that’s why I think that it’s better to choose the law upfront as having certainty is better.

Now, if you have a tribunal with an English lawyer and a French lawyer, and the governing law hasn’t been specified, the probability is that unless something is clear-cut, like this contract should be governed by Indian law. If the position is unclear the parties will have to present their positions: One side may say that they went to India because that’s where the manufacturing was done; surely that’s important. The other may say that they only went to India because the company there had capacity, but the real control and direction came from elsewhere. All of those factors will be considered.

As regards lawyers presenting arguments across diverse legal cultures the lawyers in those countries would think in their own way, as mentioned earlier, they often look at the same texts and determine the same questions, e.g. what is an arbitration agreement? what are the essentials of an arbitration agreement? what is meant by independence and any partial guarantee of an arbitrator. They’re all looking at these factors to determine a particular point. So, if sitting in India, and an issue arises, a tribunal may need to look at such determining factors, but if there is nothing in Indian law to help; that tribunal may be persuaded to look at the same issue in any other country which has got the Model Law to see how they have dealt with it. Of course, the lawyers will find something that helps their case, something that gives the tribunal something to work with, which is more than interpreting it themselves and being in a vulnerable position. That is quite remarkable!

All of this to say that there is no one-size fit all approach. It all depends on the particulars of the case, the applicable rules and laws, the parties and their counsel, and of course on the background of the tribunal.

Q. Mr. Lew, looking to the future, what key developments in international law and policy do you foresee significantly influencing the delicate balance between party autonomy and the increasing consideration of public interest in investment arbitration?

Continuing from the thoughts expressed above, ultimately one cannot do in any country what the law there does not allow you to do. However, positively, Arbitration is something which is permissive. It is flexible. You can structure it as you like (subject to certain limitations of course), with one, three, or even five arbitrators.

In a time when we have clear rules on equality, what happens if a contract says that, in the event of arbitration, there should be three arbitrators, and all should be men? Is that a problem? I don’t know. I’ll leave you to think about it. You could say you want X, Y, and Z because they’re excellent. And yes, people do include such terms in contracts—like wanting three arbitrators who are English barristers or experienced business people with more than a certain number of years.

But then one should also be aware that by including such specifications, you are limiting the choice. If the law says you can’t do it, you can’t do it.

Arbitration has always offered flexibility. For example, antitrust matters or patent disputes were once considered off-limits for arbitration. There were big questions about whether you could arbitrate issues involving patent licences. The answer used to be no. But now, that has changed. Today, the only thing arbitrators generally cannot decide is the validity of a patent. Patents are granted under the law of specific countries by their patent offices, and arbitrators have no authority to question that. They can, however, determine disputes involving the relationship between the patent holder and another party, such as licensing terms.

When it comes to public interest issues or state-related matters, arbitration becomes more complex. If the issue involves the state or affects public interest, arbitration might not be allowed. One needs to examine such cases carefully, and there are limits. Still, over the years, arbitration has expanded significantly. When public interest is involved, governments may resist transparency.

Q. Prof. Lew, drawing on your experience, what specific approaches have you observed that consistently empower counsel to effectively present complex commercial disputes, and conversely, what are the common pitfalls or missteps you’ve witnessed that can be detrimental to a party’s chance particularly when considering the optimal balance between written submissions and oral advocacy?

The most important part of any arbitration is the award. In the end, the arbitrators will simply decide who’s right, who’s wrong, and what the remedy is—damages, costs, or otherwise. The real challenge is persuading the tribunal.

The longer one take, the more complex the case becomes, often unnecessarily. Hearings are filled with lengthy pleadings, sometimes 100 pages or more, followed by multiple rounds of submissions and opening and closing statements. These may benefit lawyers, but do they truly help the tribunal? That’s the real question?

I have asked with many of my PhD students “tell me in one sentence what you are trying to show.” One sentence, not two. Good lawyers should be able to do present a case simply, and many are. But things often get overcomplicated, sometimes at the client’s insistence.

Counsel should keep it simple for the arbitrators. Tell the arbitrators the essential facts that they will need to reach the conclusion that you want, which means the facts that support your case and your argument, and which answer the other side. So, for me, that’s the simplicity of what should be done.

There are, of course, other factors which determine whether a lawyer doing a case in court owes a duty to the court, such as not presenting evidence they know is false or misleading. Counsel should not state something which they know is not true. These rules apply in national courts. But do they apply in arbitration? Consider this: one lawyer from India, another from Germany—a civil law jurisdiction. What duties do they owe to the tribunal? What, as is increasingly common, where there is a team of lawyers drawn from different legal jurisdictions: what are their obligations to a tribunal?

What duty do they owe to the three people selected as arbitrators? For example: when the arbitrator asks whether counsel possesses a document and it be produced, must the produce the document even if adverse to its client? What happens if you counsel lie to an arbitral tribunal? This is an important contemporary issue: are there any legal, ethical, moral and professional responsibilities owed to arbitrators and what if contrary to the clients instructions or interests?

Q. Mr. Lew, for a law student aspiring to a career in international arbitration, what key advice would you offer regarding essential skills, knowledge areas to focus on, and practical steps they should take to best position themselves for success in this field?

I can’t give you the best position, but I can tell you this. You need to be a good lawyer in your own jurisdiction, wherever you come from. That’s the first thing.

The second thing is, in my view, you need to have a good knowledge of, ideally, all three: public international, private international law, and comparative law. And going with that, knowing a second or a third language is useful because people tend to think differently in different languages. The next issue is how you apply that knowledge. Many aim to join big law firms, but even if these firms are busy, you might not get much hands-on work at first. As a new lawyer, you’ll likely be reviewing documents or checking files. It can take years before you handle major tasks, though the experience is still valuable. That said, getting into such firms is in itself quite difficult, so many try internships with such law firms to gain initial exposure which are worthwhile — but even that can be hard.

Another way could be to get in a position with an arbitration institution. Of course, you see things from a different perspective. As a lawyer in a law firm, one sees and approaches issues from a party’s perspective. At an institution, one looks at both sides and from a neutral perspective. One is not trying to build a case; rather you will be assisting in the administration of such case. But that’s also very helpful. A third option is working for an arbitrator, though few need assistance, so opportunities are limited.

And the fourth situation, which is a very recently developed practice, is to become an arbitrator or a tribunal secretary. And that — you need the basic knowledge about arbitration and the way cases are handles procedurally, knowing how things work, and the skills and the knowledge which I’ve suggested. Getting the opportunity to be a tribunal assistant or secretary may involve carrying the arbitrator’s boxes of papers, making summaries of arguments (said to be taken over by AI).

Finally, there is one other element: luck!

……………..
I wish you all luck and success in whatever you do, whether within international arbitration practice or otherwise.

Professor Julian DM Lew,
KC LLB (Lond Hons), Dr Juris (L’vain) FCIArb,
Barrister/International Arbitrator,
Professor of International Arbitration Law and Head of the School of International
Arbitration, QMUL