Abstract Liquidated damages clauses allocate risk between parties by providing for fixed rate compensation in the event of a breach. Whereas under the common law liquidated damages amounts are generally not subject to adjustment, the civil codes of countries in Europe, the Middle East, and Asia empower decision-makers to reduce and/or increase liquidated damages in certain circumstances. This article surveys 31 international arbitration cases applying the civil codes of 12 countries in which tribunals considered whether or not to adjust the amount of liquidated damages. The authors then propose a two-step framework based on the factors that arbitral tribunals consider before granting or refusing an adjustment request: first, a contractual inquiry into the parties’ intentions underlain by the tension between contract sanctity principles and fairness principles; and second, a factual inquiry into the proportionality of the contractual amount of liquidated damages relative to the actual harm.

Abstract This article summarises the issues raised by the authors with the Law Commission in the context of its review and consultative process concerning the Arbitration Act 1996 culminating in the Law Commission’s Final Report of 5 September 2023, the Arbitration Bill proposing to amend the 1996 Act on 21 November 2023, and the Arbitration Act 2025 which received Royal Assent on 24 February 2025.

Abstract The token economy is rapidly advancing and if fully realized will change the financial sector significantly. This paper will examine the development, application and use of tokens, and blockchain technology along with their impact to the rules of evidence in international commercial arbitration. The technology is formidable and will require new skills. It calls on arbitration institutions, as a starting point, to develop guidance notes for the technical application of blockchain and tokens used in evidence. This paper highlights how a recent addition to the legal framework is the Token Service Agreement, which incorporates an arbitration clause and the use of blockchain. This, along with the many other agreements that have recently been developed, for instance, in cybersecurity and data, will all be important components to the evidence that an arbitral tribunal will need to consider. More specifically, expert evidence is and will become crucial to being able to trace the actual dispute of the token (its supporting technology) and blockchain. The paper concludes calling for further research to be undertaken about how blockchain and tokens will need to be considered as evidence in international commercial arbitration.

Abstract This article maps the future of commercial arbitration. With its decision in the Pechstein case, the European Court of Human Rights sanctioned the Swiss Federal Supreme Court for its rather generous approach towards the Court of Arbitration for Sport and imposed human rights restrictions on arbitration proceedings. The major upheaval is that Article 6 of the European Convention of Human Rights applies to ‘involuntary’ arbitrations with full force—including the right to a public hearing. Moreover, the concept of an involuntary arbitration agreement has not remained an oxymoron, as the court ruled that the agreements athletes must sign for their participation in sports competitions are to be classified as heteronomous. Building on this jurisprudence, the German Federal Constitutional Court held that even a serious imbalance of bargaining power may render arbitration agreements ‘involuntary’. Where does this case law leave commercial arbitration? One natural object of investigation is arbitration clauses in contracts that one party presents to the other on a take-it-or-leave-it basis; another is clauses included in the terms and conditions of undertakings that dominate the respective market in the sense of competition law. If such clauses were deemed to be heteronomous for the party on which they are imposed, arbitral tribunals would have to hold their oral hearings in public. Arguably, this would mean the end of commercial arbitration ‘as we know it’.

Abstract This article identifies current issues of EU law in Swiss international arbitration and suggests solutions as they may be apprehended. It first provides a brief overview of EU law which is likely to affect Swiss international arbitration. This comprises the treatment under EU law, and therefore under EU Member State law, of public international law contrary to fundamental EU law, as well as the EU law duties imposed on EU Member States, in particular their courts. Secondly, EU law issues are identified and examined, in the order of the events arising in arbitrations and their result: the arbitration agreement, jurisdiction, the substantive proceedings, then challenges to and the enforcement of arbitration awards. This article covers investment, commercial, and sports arbitration and addresses the extent to which any EU law requirements established in one of these types of arbitration may also apply in any of the others.

Abstract The 80-year doctrine of separability, considered today to be a ‘part of the very alphabet of arbitration law’, continues to generate debate about the extent of its application. Originating as a doctrine to preserve the jurisdiction of the tribunal to determine disputes where contracts had been terminated or unilaterally declared invalid, the doctrine has been robustly applied under English law to further the cause of arbitration. The doctrine has not only been accepted in other common law jurisdictions but has also been incorporated under arbitral statutes around the world to ward off novel challenges to the commencement of arbitration. However useful the doctrine might be, its elasticity has limits. While English law recognizes that the doctrine is not limitless and Singapore law follows suit, a recent judgment by seven judges of the Indian Supreme Court appears to have pushed the envelope by holding that the doctrine of separability entails ‘the general rule on the substantive independence of an arbitration agreement’ without restrictions. The article undertakes a comprehensive analysis of all three approaches and critically analyses various decisions which have been instrumental in keeping jurisprudence around the doctrine abuzz.

Abstract This paper explores the legal challenges and implications surrounding recent withdrawals from the Energy Charter Treaty, particularly focusing on the enduring impact of its sunset clause. The ECT, established to foster energy sector cooperation and investment protection, has drawn criticism for enabling investor-state dispute settlements that potentially conflict with climate change policies. The wave of withdrawals by European states reflects concerns about the treaty’s alignment with modern environmental goals, yet the sunset clause—extending investment protections for 20 years postwithdrawal—remains a formidable barrier. This paper critically examines the feasibility of using inter se agreements and the doctrine of rebus sic stantibus to mitigate the effects of the sunset clause. It also explores whether environmental protection obligations, emerging as erga omnes duties, could offer states a defense against ISDS claims linked to legitimate climate measures. While acknowledging the clause’s robustness, this paper proposes a balanced strategy that accommodates both investment protections and environmental imperatives. It concludes with a forward-looking perspective, suggesting that if climate obligations attain jus cogens status within the sunset period, they could override the clause, accelerating the global transition toward sustainable energy.