What Businesses Really Want to Know About Arbitration:

Top Questions from Last Week’s ICC Workshop

When businesses, engineers, in-house counsel, and lawyers gathered last week for ICC Netherlands’ workshop Managing Risk in Cross-Border Transactions, one thing quickly became clear: organisations may face similar legal risks, but the questions they bring to the table come from very different day-to-day realities. Led by arbitration specialist Ulrich Kopetzki, the session evolved into a highly interactive conversation shaped almost entirely by participant questions: practical, specific, and grounded in real operational dilemmas.

Below are the key themes that emerged, the questions businesses are actually asking when it comes to international contracts and ICC arbitration, and what they reveal about the challenges companies face today.

1. “What happens with enforcement if the counterparty is based in a sanctioned country but they have assets are located elsewhere?”

The most-asked question of the day was also the most fundamental: enforcement. Participants described scenarios where the counterparty was registered in a sanctioned or high-risk jurisdiction, the contract was governed by a different law, and the only practical assets were located in yet another country.

The takeaway was clear: enforcement follows the assets, not the counterparty’s nationality, registered seat, or the governing law. In the example discussed, a Dutch company contracting with a Libyan entity whose assets were in France, enforcement in Libya would have been impossible, but an ICC arbitration award could still be enforced in France under the New York Convention.

2. “Has Brexit made English courts harder to rely on?”

Brexit continues to create confusion, and participants openly questioned whether English court judgments have become riskier than arbitration awards.

The workshop confirmed a reality many suspected: enforcement of UK court judgments in the EU has indeed become more complicated. Arbitration, however, has remained stable. London continues to be one of the world’s top seats, and English law among the most frequently chosen for international contracts, a testament to its predictability and global reputation.

3. “Why are so many ICC cases in construction, engineering and energy?”

Participants from offshore construction, infrastructure and energy immediately recognised themselves in this question. These industries were strongly represented in the room, and for good reason.

These sectors rely on complex, high-value projects, international standard forms such as FIDIC, and tight timelines. Delays, variations, and unexpected conditions are common, and the technical nature of disputes means parties prefer arbitrators with sector expertise. Naturally, ICC statistics reflect this: construction, engineering and energy disputes consistently form the largest share of the caseload.

In other words, the industries that build the world also generate many of its disputes and arbitration remains the preferred tool for resolving them.

4. “Is the finality of arbitration a benefit or a risk?”

This question divided the room.

Some participants saw finality as a major advantage: no years of appeals, no long-term uncertainty on the books, and no draining internal resources on prolonged litigation. They valued the ability to “close the file” and focus on business continuity. Others worried: What if the tribunal gets it wrong? Without an appeal route, there is no second chance.

The discussion crystallised an important insight: parties’ comfort with finality depends heavily on their ability to select qualified arbitrators who understand their industry. As several practitioners noted, this is often a greater safeguard than an appeal mechanism itself.

5. “How do we avoid reputational damage?”

For companies in regulated or high-visibility sectors, confidentiality was a key concern and an area where many assumptions do not match how ICC arbitration actually works.

Contrary to popular belief, ICC arbitration is private but not automatically confidential. Unless parties include a confidentiality clause in their contract, they cannot rely on secrecy. While tribunals may issue confidentiality orders, there is no inherent guarantee. Participants were therefore strongly encouraged to address confidentiality explicitly when drafting their dispute-resolution clauses.

6. “Are we drafting arbitration clauses correctly?”

The final set of questions went straight to the heart of contractual risk management: drafting.

Lawyers in the room shared stories of “creative” clauses that ended up causing more disputes than they resolved. From unclear multi-tier clauses to mismatches between chosen law and the arbitration framework, poorly drafted clauses can create procedural traps, delays, or even unenforceable awards.

The workshop advice was unambiguous:

• Use the ICC Model Clause.

• Specify seat, law, and language clearly.

• Be cautious with bespoke additions.

• Do not over-engineer multi-tier clauses.

• Clarify whether confidentiality and expedited procedures apply. 

  
  

A good clause won’t guarantee a smooth project, but a bad clause can guarantee a difficult dispute.

Businesses Want Practical Answers, Not Theory

What made the session unique was the openness of the participants. They did not ask abstract legal questions; they asked business questions:

• Where will we actually get paid?

• How do we protect our reputation?

• Which process gives us the least disruption?

• Which mechanism can we explain to our board?

• How do we prevent disputes instead of fuelling them?

The workshop showed that arbitration is not only a legal tool, it is a strategic business choice. The ability to manage enforcement risk, maintain neutrality, select experts, and resolve disputes efficiently is at the core of cross-border commerce.

For many companies in the room, the greatest insight was that dispute resolution begins long before a conflict arises. It begins with drafting the right clause.

Want to join our next ICC NL training? Let us know: more sessions are on the way!

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