Arbitral Foresight in International Arbitration: An Efficiency Tool
1. Introduction
International arbitration remains the preferred mechanism for resolving complex cross-border disputes. Yet despite its advantages neutrality, enforceability and flexibility, arbitration is frequently criticized for being too slow, too expensive, and too procedurally heavy. Often, parties proceed through hearings and extensive evidence-taking only to realize, in retrospect, that early settlement would have served them better.
Arbitral Foresight[1] addresses this challenge. It is a procedural technique whereby arbitrators, with express party consent, provide non-binding, preliminary assessments on issues in dispute at suitably early stages of the arbitration. These early impressions aim to help parties realistically evaluate their positions, explore settlement possibilities, or streamline the issues for adjudication.
This article examines how such a mechanism can be integrated under the four leading arbitral rule sets of the ICC, LCIA, Swiss, and UNCITRAL Rules, and explores the Prague Rules, which expressly support tribunal-issued preliminary views.
2. Concept and Purpose of Arbitral Foresight
Arbitral Foresight consists of provisional, non-prejudicial, non-binding expressions of how the tribunal views certain legal or factual issues based on the material presented up to a given point. The core characteristics are:
Party consent
No impact on the tribunal’s final decision
Without prejudice to full presentation of evidence
Structured and documented within the procedure
Transparency and equal treatment of both parties
Preliminary views are common in various judicial cultures. Civil law jurisdictions often employ early judicial assessments; common law courts use pre-trial conferences to manage expectations and encourage settlement. Arbitral Foresight brings this global experience into a neutral, consensual arbitral process.
3. Compatibility With Leading Arbitration Rules
3.1 ICC Arbitration Rules
The ICC Rules provide a strong institutional foundation for Arbitral Foresight:
Article 22(1) requires the tribunal to ensure efficient and cost-effective proceedings.
Article 24 mandates a Case Management Conference early in the arbitration.
Appendix IV expressly encourages proactive case-management tools, including early identification of issues, avoidance of unnecessary evidence, and facilitation of settlement.
Although the ICC Rules do not explicitly mention preliminary assessments, Appendix IV’s emphasis on issue-focused, efficiency-driven tools supports the introduction of Arbitral Foresight through the Terms of Reference or Procedural Order No. 1.
3.2 LCIA Arbitration Rules
The LCIA Rules grant tribunals broad procedural authority:
Articles 14.4–14.6 allow tribunals to direct proceedings to avoid unnecessary delay and expense.
Tribunals may determine the sequence and format of submissions and evidence.
While the LCIA Rules do not explicitly mention preliminary views, their flexible, tribunal-driven model enables parties to authorize early non-binding assessments. LCIA arbitrators are accustomed to wide discretion, and provided safeguards ensure neutrality, Arbitral Foresight fits within this discretionary framework.
3.3 Swiss Rules of International Arbitration
The Swiss Rules strongly emphasize proportionality and efficiency:
Article 15 requires expedient and cost-effective proceedings.
Article 19 gives tribunals wide discretion in procedural design.
Article 26(3) expressly allows tribunals to encourage amicable settlement.
Swiss judicial culture supports early judicial views to facilitate settlement, and this philosophy underpins the Swiss Rules. As a result, the Rules and their underlying legal tradition align naturally with preliminary assessments.
3.4 UNCITRAL Arbitration Rules
The UNCITRAL Rules, used predominantly in ad hoc arbitration, emphasize party autonomy above all:
Article 17(1) gives tribunals broad procedural authority.
The parties retain full freedom to structure the proceedings through agreement.
Because UNCITRAL does not have a built-in case-management framework, Arbitral Foresight must be expressly adopted in a procedural agreement or procedural order. Jurisdictions that follow UNCITRAL Model Law generally permit such innovations, provided due process is preserved.
4. The Prague Rules: Express Recognition of Preliminary Tribunal Views
In contrast to the institutional rules above, the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (“Prague Rules”) expressly and affirmatively support preliminary assessments.
4.1 Preliminary Views (Article 2.4)
The Prague Rules authorize tribunals to: “express preliminary views on the positions of the parties and their evidence,” as long as parties are given the opportunity to comment.
4.2 Settlement Facilitation (Article 9)
The tribunal may actively facilitate settlement, including by sharing early assessments of the dispute, unless any party objects. This fits naturally with the objectives of Foresight.
4.3 Inquisitorial Orientation
The Prague Rules adopt a more civil-law–oriented, tribunal-driven approach. This framework inherently supports early, structured feedback from the tribunal.
5. Timing: When to Apply Arbitral Foresight
5.1 After Initial Pleadings (Pre–Document Production)
At this stage, tribunals possess the main narrative of each party, core legal arguments, and foundations of factual disputes. Preliminary views here may encourage early settlement discussions, narrow the scope of document production, and shape the evidentiary roadmap.
5.2 After Document Production but Before Hearings
Once documentary evidence is exchanged, tribunals can provide more informed insights, enabling parties to recalibrate strategies, focus on decisive issues, and avoid costly expert evidence and witness hearings.
6. Implementation Through Procedural Instruments
6.1 Record Explicit Consent
Consent may be captured in arbitration agreements, Terms of Reference (ICC), Procedural Order No. 1, or subsequent joint statements.
6.2 Structure Safeguards
Procedural orders should emphasize the provisional nature of preliminary views, that they do not bind the tribunal, equal access for both parties, a right to comment or rebut, no identification of majority/minority tribunal members, and confirmation that the tribunal remains open to persuasion.
6.3 Choose Format
Preliminary views may be anonymized, issue-specific, written or oral, and accompanied by invitations for further submissions.
7. Addressing Concerns About Impartiality and Due Process
Concerns that preliminary views compromise neutrality are manageable with the safeguards above. As long as parties consent, views remain provisional, equal treatment is preserved, and the tribunal remains open-minded, Arbitral Foresight enhances due process by clarifying issues rather than prejudging them.
8. Benefits of Arbitral Foresight
Arbitral foresight makes significant contributions to the dispute-resolution process by providing cost efficiency, time savings, and strategic clarity. It also enhances procedural efficiency and substantially increases the likelihood of early settlement between the parties.
9. Conclusion
Arbitral Foresight offers a modern, pragmatic enhancement to international arbitration. While ICC, LCIA, Swiss, and UNCITRAL Rules permit such techniques through flexible case-management powers and party autonomy, the Prague Rules stand out for expressly endorsing preliminary tribunal views. It empowers arbitrators to act not only as neutral adjudicators but also as facilitators of informed decision-making, leading to more efficient and commercially meaningful outcomes.
- This article was prepared based on the presentation I delivered on the same topic at GarLive Istanbul on 17 June 2025.
All rights of this article are reserved. This article may not be used, reproduced, copied, published, distributed, or otherwise disseminated without quotation or Erdem & Erdem Law Firm's written consent. Any content created without citing the resource or Erdem & Erdem Law Firm’s written consent is regularly tracked, and legal action will be taken in case of violation.
Other Contents
Emergency arbitration addresses the need for interim protection before the arbitral tribunal is constituted in institutional arbitrations. Arbitral institutions establish short timeframes to ensure parties can obtain interim relief quickly. For example, the International Chamber of Commerce (“ICC”) requires that the emergency...
For arbitral awards rendered in international commercial arbitration to produce legal effects in foreign jurisdictions, they must be subjected to proceedings for “recognition” and “enforcement.” This process is governed by the New York Convention as well as by the provisions of the Law on Private International Law...
Arbitrability, the determination of whether a specific subject matter can be resolved through arbitration, constitutes a fundamental aspect of arbitration within the scope of international commercial dispute resolution. This concept draws a delicate balance between party autonomy—a fundamental principle of arbitration...
The recognition, enforcement, and annulment of foreign court and arbitral awards in Türkiye are processes in which public policy emerges as one of the most critical criteria for review, both in theory and in practice. The Court of Cassation decisions determine the direction of case law regarding the scope and...
As is well known, the action for annulment of objection is a special type of lawsuit regulated under Article 67 of the Turkish Execution and Bankruptcy Law No. 2004 (“EBL”). The primary objective of this action is to nullify a debtor’s objection to execution proceedings. Despite its procedural function of facilitating...
On 16 December 2024, the London Court of International Arbitration (“LCIA”) released its third batch of challenge decisions covering the period from 22 July 2017 to 31 December 2022. The LCIA has also issued a detailed commentary that identifies key legal themes and analytical trends, offering practitioners...
The International Chamber of Commerce (“ICC”) has published its report on the dispute resolution statistics for 2023 (“Report”) , shedding light on the evolving landscape of international arbitration...
Syndicated loans undoubtedly hold a significant position among global financing models. In 2023 alone, 3,655 syndicated loans were provided to companies in the US, with their total value reaching USD 2.4 trillion...
Preliminary attachment refers to the temporary seizure of a debtor's assets to secure a creditor's claim. While it serves as a vital instrument for safeguarding the rights of creditors, it is subject to specific and stringent conditions under Turkish law to prevent any potential misuse...
One of the most important reasons for parties to choose arbitration is the opportunity to freely choose their arbitrators. This freedom granted to the parties also distinguishes arbitration from proceedings before state courts, where the parties are deprived of the power to determine the judges who will conduct the...
The 6th Civil Chamber of the Court of Cassation ruled on October 12, 2022, that national courts have jurisdiction over objections to provisional measures in international arbitration disputes...
The declaration of intent to resolve disputes through arbitration is the fundamental constituent element of an arbitration agreement. To speak of a valid arbitration agreement, the parties' intention to arbitrate must emerge in a way that leaves no room for dispute...
In the wake of the evolving dynamics of commercial transactions, the Netherlands Arbitration Institute Foundation (NAI) announced new arbitration rules . 2024 NAI Arbitration Rules are in force as of 1 March 2024 and will be applicable on proceedings filed on or after this date...
With the global shift to online activities, domain names play a crucial role in identifying businesses. It is more common than ever for a domain name to be registered that is confusingly similar to a trademark or service mark...
The ICC Commission on Arbitration and ADR (“Commission”) published a new guide and report with the aim to increase awareness on alternative dispute resolution (“ADR”) mechanisms to prevent disputes and strengthen the relationship between all stakeholders.The Guide on Effective Conflict Management...
Mergers and Acquisitions (“M&A”) are restructuring of companies or assets through various types of financial transactions, such as mergers, acquisitions, purchase of assets, or management acquisitions. This Newsletter article covers M&A disputes being solved before arbitral tribunals.
In the context of arbitration practice, the principle of revision au fond means that the courts can not examine the merits of a dispute when reviewing an arbitral award. This principle is most commonly encountered in set aside and enforcement proceedings. An arbitral award is evidence of the parties’ willingness...
Under Turkish law, parties may agree on the settlement of disputes that have arisen or may arise, regarding the rights that they can freely dispose of, by arbitration. However, disputes which are not subject to the will of parties, such as the disputes relating to in rem rights of immovables, bankruptcy law...
On 4 September 2020, a research project “Does a Right to a Physical Hearing Exist in International Arbitration?” was launched by an International Council for Commercial Arbitration (“ICCA”) taskforce. Due to the Covid-19 pandemic, many arbitration hearings were held online. Many institutional rules...
Dubai International Arbitration Center amended its Arbitration Rules on 25 February 2022. The 2022 Arbitration Rules were published on 2 March 2022 and came into effect on 21 March 2022. The Rules will be applied to arbitrations that are filed after 21 March 2022; unless parties agree otherwise...
In the aftermath of the Achmea decision, controversies on intra-EU arbitrations continue. Most recently, the Paris Court of Appeal has annulled two arbitral awards rendered against Poland. Meanwhile, the Higher Regional Court of Berlin has refused to declare that an Irish investor’s ICSID claim...
Under Turkish law, the legal remedy that can be applied against arbitral awards is an annulment action. Law on International Arbitration No. 4686 (“IAL”) finds its application area in arbitration proceedings where Turkey is the place of arbitration...
It is well known that following a decision of the Court of Justice of the European Union, problems arose related to arbitration of intra-EU disputes, and particularly arbitration under the Energy Charter Treaty...
Arbitration in corporate law contains controversial elements in many respects, especially the issue of arbitrability. Even in legal systems where these disputes are considered to be arbitrable, uncertainties remain on whether an arbitration clause can be included in the articles of...
Arbitration has benifited from a great increase in the use of technology which has directly effected the conduct of proceedings. More particularly, with digitalization, the way that we conduct arbitration proceedings has been changed to reflect the current needs of parties, with an aim of increasing time...