In Germany, settlement facilitation is part of the procedural approach and tradition in civil matters before courts and arbitral tribunals. German parties generally expect arbitral tribunals to engage in settlement facilitation. The Arbitration Rules of DIS reflect this expectation in Article 26 and instruct arbitral tribunals to encourage, at every stage of the proceedings, an amicable settlement of the dispute(s). In many other jurisdictions, arbitrators are rather reluctant to adopt a direct approach to the facilitation of amicable settlements as they could be considered to be stepping outside of their role as a dispute adjudicator and could be perceived as compromising their neutrality.
The DIS Practice Group on Settlement Facilitation has as its objective to foster a better understanding of the various approaches that may be taken towards settlement facilitation in arbitration in different jurisdictions also under Art. 26 of the DIS Arbitration Rules.
The work of the practice group is divided in two parts:
The first part aims at fact gathering with regard to different approaches to settlement facilitation in various jurisdictions. This includes clarification whether settlement facilitation is perceived to be acceptable in principle and, if so, through which techniques. As part of this, the practice group is inviting a number of leading international arbitration institutions and arbitration experts to present and discuss their respective views.
The second part aims to develop approaches to settlement facilitation and to set these out in a working paper. In working groups focusing on different regions, the practice group is seeking to bridge gaps between the various legal traditions. Further, it is seeking to provide guidance and identify tools that may be used in settlement facilitation in a form acceptable in different legal traditions, including inter alia indirect facilitation techniques.
On 24 April 2023, Stefan Kröll presented his views on “Settlement facilitation within the framework of Art. 26 of the DIS Rules”. The event was moderated by Nicoletta Kröger, Partner at CORVEL, and Axel Reeg, Partner at Reeg Law.