Preventing Disputes Before They Arise: Strategic Tools in Investment and Commercial Arbitration

On 23 March 2026, during Paris Arbitration Week 2026, Dr. Yulia Levashova (Nyenrode Business University) organized a panel discussion “Preventing Disputes Before They Arise: Strategic Tools in Investment and Commercial Arbitration” at White&Case in Paris. The event brought together leading practitioners, academics, and institutional representatives to explore the growing importance of dispute prevention across both commercial and investment arbitration.

The session opened with welcome remarks by Ms. Nataliia Tuzheliak (Associate, White&Case), who highlighted the historical roots of dispute prevention within arbitral practice and emphasized its renewed relevance in today’s climate of geopolitical uncertainty. Dr. Yulia Levashova (Associate Professor, Nyenrode University) introduced the event, noting a persistent gap between the expanding toolkit for dispute prevention and its relatively limited use in practice – a theme that framed both panels.

Panel I: Innovative Approaches to Dispute Prevention

The first panel moderated by Dr. Yulia Levashova examined emerging tools and strategies designed to prevent disputes before escalation.

A central focus was the evolving role of mediation. Ms. Agata Zwolankiewicz (Associate, Addleshaw Goddard / Researcher, KU Leuven) described investment mediation as an underutilized but increasingly recognized mechanism, supported by developments such as the Singapore Convention and new institutional frameworks. While unlikely to replace arbitration, mediation is gaining traction as a complementary tool, particularly for early–stage dispute resolution.

Building on this, Mr. Marc Krestin (Partner, Fieldfisher) emphasized the importance of well-drafted multi-tier dispute resolution clauses. He noted that mediation clauses are generally enforceable across European jurisdictions when clearly formulated, and that effective clause design – ensuring structured engagement and clarity – can transform ADR mechanisms from procedural hurdles into genuine dispute prevention tools.

From a construction perspective, Nataliia Tuzheliak highlighted the success of dispute adjudication boards (DABs). Drawing on empirical data, she noted that a significant majority of disputes are resolved at the DAB stage, with only a small fraction escalating to arbitration. The presence of technically qualified, standing adjudicators was identified as a key factor in fostering early resolution and maintaining project continuity.

Turning to investment arbitration, Prof. Kamalia Mehtiyeva (Professor of Law at the University of Paris-Est Créteil (France), Arbitrator and Counsel) explored the emerging role of counterclaims as a potential dispute prevention mechanism. Although empirical evidence remains limited, she argued that the growing acceptance of counterclaims – particularly in treaty–based arbitration, may influence investor behaviour and encourage earlier settlements by recalibrating risk assessments.

Institutional perspectives were provided by Dr. Hélène van Lith (Secretary to the ICC Commission on Arbitration & ADR, ICC Dispute Resolution Services and Associate Professor, University Paris Dauphine), who outlined the International Chamber of Commerce’s expanding suite of ADR services. She noted a clear trend towards combining mechanisms, such as mediation, expert determination, and dispute boards – in flexible, hybrid processes tailored to parties’ needs. Increased user awareness and demand for “dispute avoidance” tools were identified as key drivers of this shift.

Panel II: Regional Perspectives on Dispute Prevention in Investment and Commercial Arbitration

The second panel, moderated by Ms. Anna Guillard Sazhko (Independent Counsel and Arbitrator, Turkic Arbitration Association), examined how dispute prevention mechanisms are being developed and implemented across different regions, highlighting both common trends and jurisdiction – specific approaches.

Focusing on Latin America, Mr. Eric Franco (Partner, Legal Delta) emphasized that most disagreements are in fact resolved amicably, and that effective dispute prevention requires keeping parties actively engaged and in control of their disputes, rather than delegating entirely to external counsel. He further highlighted that disputes stem from uncertainty, and can often be prevented through early clarification of risks and issues -particularly via tools such as risk management, proactive dispute boards, and fostering trust and open communication between the parties.

Providing an institutional perspective from Kazakhstan, Mr. Christopher Campbell-Holt (Registrar and Chief Executive of the AIFC Court and IAC, AIFC Court and IAC) presented the model of the AIFC Court and IAC as an example of integrated dispute prevention and resolution. He highlighted how accessible procedures, proactive case management, and transparency contribute to building user trust.

Addressing Central Asia more broadly, Dr. Saltanat Imanova (American University of Central Asia) outlined ongoing institutional innovations and a gradual shift toward formalized ADR frameworks aligned with international standards. She emphasized the importance of capacity building, legal education, and regional cooperation in strengthening dispute prevention practices.

Finally, Ms. Diana Bayzakova (Director, Tashkent International Arbitration Centre) shared insights from Uzbekistan’s Tashkent International Arbitration Centre, highlighting recent legal reforms and institutional efforts aimed at improving the investment climate. She stressed that effective dispute prevention depends not only on modern legal frameworks but also on sustained governmental support and institutional credibility.

The event concluded with reflections by Ms. Laure Jacquier (Director of ICC Netherlands), who underscored the importance of continued innovation and collaboration between practitioners, institutions, and states to ensure that dispute prevention becomes an integral part of arbitration practice.