TFL Vsebine / Revija Slovenska arbitražna praksa

This article discusses the role of parties’ counsel in settlement negotiations. Counsel have an important role in settlement facilitation as early as at the stage of contract drafting. They may suggest arbitration rules, which encourage settlement facilitation by arbitrators, or include multi-tier dispute resolution clauses that provide for negotiation and/or mediation before arbitration. Over the course of arbitration, counsel should investigate routes to settlement, analyse any change in circumstances, and where necessary, make appropriate adjustments to their settlement strategies. The authors also address the possible involvement of arbitrators in settlement negotiations. In general, arbitrators may avail themselves of those techniques, which will assist the parties in their settlement efforts, will not create an appearance of bias, and will not put at risk the enforceability of the award the tribunal may render. In the absence of any specific rules regarding the role of arbitrators in the majority of national laws and rules of arbitral institutions, it is recommended that parties consent to the facilitation of arbitrators in settlement and set the scope of the settlement mechanism in writing.