International Arbitration Associate at BonelliErede
CEPANI: The Unusual Suspects – Arbitral Institutions: Fortresses or Guest Houses?
Are arbitral institutions open spaces fostering dialogue within the arbitration community, or are they still perceived as closed structures operating behind procedural walls? This question framed a lively debate during Paris Arbitration Week, jointly organised by CEPANI - the Belgian Centre for Arbitration and Mediation, the Association Française d’Arbitrage (AFA), the Netherlands Arbitration Institute (NAI), and the Vienna International Arbitral Centre (VIAC).
The panel brought together representatives of several European arbitral institutions: Benoît Kohl, President of CEPANI, Marc Henry, President of AFA, Ramona Schardt, Secretary General of the German Arbitration Institute (DIS), Tomas Vaal and Hilde van der Baan, respectively Secretary General and Chair of NAI, and Franz Schwarz, President of VIAC. The discussion was moderated by Valéry Denoix de Saint Marc, Partner at August Debouzy.
Together, the speakers explored how arbitral institutions are perceived today and how they engage with users, public authorities and arbitrators within the evolving arbitration landscape.
Traditionally, arbitration was often described as a form of “gentleman’s justice”, where disputes were resolved primarily by arbitrators themselves with minimal institutional involvement. In that model, arbitral institutions served essentially as administrative frameworks, providing procedural structures that allowed arbitrators to focus on their core mission of delivering justice.
Yet this perception has evolved significantly. As arbitration has expanded, institutions have taken on a more visible role, not only administering proceedings but also shaping procedures, interacting with public authorities, and contributing to the legitimacy of arbitration itself.
Against that background, the discussion focused on three key aspects of institutional practice: dialogue, transparency, and governance.
Dialogue with Public Authorities
The discussion first addressed how arbitral institutions interact with public authorities.
Mr. Kohl illustrated the Belgian experience through several examples. CEPANI maintains a close relationship with the Belgian Ministry of Justice, having contributed to the drafting of Belgian arbitration legislation and to subsequent updates and translations of the law. Following a Belgian Constitutional Court decision concerning third-party opposition to court decisions recognising arbitral awards, CEPANI also assisted the Ministry by preparing a draft legislative proposal that was later submitted to Parliament. CEPANI also participates as an observer in UNCITRAL Working Groups II and III, contributing insights to discussions on dispute settlement frameworks. The institution also highlighted cooperation with the Brussels Bar, which is exploring the possibility of referring certain appellate-stage disputes to arbitration as a response to delays before the Brussels Court of Appeal.
Mr. Schwarz described a different model for VIAC based on institutional design. Dialogue with public authorities is facilitated through the composition of the VIAC board, which includes practitioners from Austria, Western Europe and Central and Eastern Europe, as well as representatives of academia and public institutions. Historically, the board has included a judge of the Austrian Supreme Court, a role now held by the Chief Justice of the Austrian Supreme Court, creating a direct channel for dialogue with public authorities, for example regarding the reforms of the Austrian Arbitration Act. Vienna’s role as a host city for international organisations such as UNCITRAL and the Permanent Court of Arbitration also contributes to VIAC’s engagement at the international level.
From the French perspective, Mr. Henry of AFA described a relationship with public authorities that is somewhat less institutionalised but nevertheless active. AFA has participated in the working group on the reform of French arbitration law and continues to maintain dialogue with the judiciary. While magistrates no longer sit on the AFA board due to administrative restrictions, judicial representatives continue to participate in AFA activities, and a member of the French Supreme Court currently sits on AFA’s Challenge Committee. Mr. Henry also noted that French juges d’appui increasingly request suggestions from AFA when they are called upon to appoint arbitrators.
Ms. Schardt of the DIS similarly emphasised cooperation with the German Ministry of Justice. The DIS organises joint events with the Ministry and benefits from its support for the Berlin Arbitration Days. Following the recent establishment of commercial courts in Germany, the DIS also organised workshops to share arbitration case-management techniques with judges.
Finally, Mr. Vaal of the NAI stressed the importance of maintaining dialogue with courts and public authorities to sustain trust in arbitration. In the Netherlands, 27 magistrates currently appear on the NAI arbitrator list, and parties frequently request that a tribunal chair be a judge. At the same time, Ms. van der Baan noted that arbitration still faces questions regarding transparency and inclusiveness, making continued engagement with stakeholders particularly important.
Transparency and the Appointment of Arbitrators
The discussion then turned to transparency, particularly in relation to arbitrator appointments.
Mr. Schwarz explained that VIAC does not keep a closed arbitrator list. Instead, when the institution must appoint an arbitrator, two board members prepare a shortlist that is discussed by the full board. These discussions consider factors such as applicable law, language requirements, experience and diversity. Mr. Schwarz noted that institutional appointments in the previous year resulted in 60% female arbitrators, reflecting VIAC’s efforts to increase diversity. VIAC also places significant emphasis on efficiency in the appointment and confirmation process. When arbitrators are nominated, they must first be confirmed by the institution. VIAC encourages parties to raise potential issues at the confirmation stage rather than later through formal challenges. The board therefore invites comments from the parties and aims to reach confirmation decisions quickly, often within one or two weeks, and can convene extraordinary meetings where necessary. According to Mr. Schwarz, addressing potential concerns at an early stage has helped reduce the number of subsequent challenges and has contributed to a more efficient process overall.
Mr. Vaal described the NAI’s recent decision to publish its arbitrator list after many years of internal debate. The list now includes 162 arbitrators, around one-third of whom are women. Publishing the list was seen as providing guidance to users, particularly those less familiar with arbitration, and improving transparency in the appointment process.
Ms. Schardt presented a system centred on an internal arbitrator database, launched recently and containing 471 profiles. The database is open to practitioners interested in being considered for appointments, who may submit their profiles through the DIS website. It serves as a tool to support the work of the DIS appointing committee, composed of three members and three deputies from different jurisdictions. Ms. Schardt noted that institutional appointments often arise in smaller disputes where the parties cannot agree on an arbitrator, whereas in larger cases parties typically succeed in reaching agreement themselves.
A similar observation was shared by CEPANI, with Mr. Kohl noting that the institution more frequently appoints arbitrators in lower-value disputes. CEPANI also relies on an appointment committee which receives a memorandum from the Secretariat proposing potential candidates, allowing the committee to take an informed decision on the appointment.
As an association, AFA does not maintain a formal list of arbitrators but rather a membership list. Mr. Henry emphasised that transparency should also extend to challenge proceedings. Under the AFA rules, parties and arbitrators are given the opportunity to present their views during challenge procedures, and decisions are communicated with reasons. Providing reasoned decisions, it was suggested, may help courts address questions of arbitrator independence at an earlier stage of the proceedings.
Governance and Institutional Responsibility
The discussion also highlighted the broader governance role increasingly exercised by arbitral institutions.
Participants noted that institutions often possess valuable information about arbitrators’ availability, procedural management and responsiveness. This knowledge can assist institutions in making informed decisions when appointing or confirming arbitrators. At the same time, several speakers emphasised the need to balance institutional oversight with party autonomy, which remains one of the central principles of arbitration.
The question therefore arises as to how far institutions should go in using their internal knowledge when parties nominate arbitrators themselves. While institutions may occasionally have reservations regarding certain nominations, intervention must be carefully balanced against the parties’ freedom to choose their tribunal.
Costs and Statistical Transparency
The final part of the discussion turned to cost transparency, an issue frequently raised by arbitration users.
Referring to ongoing initiatives on statistical transparency and reporting standards, participants discussed whether arbitral institutions should publish more information on the cost of arbitration proceedings. Some speakers suggested that reporting on costs could assist counsel and users in assessing the likely financial implications of arbitration and in advising clients more effectively. Others expressed caution. While institutions may report on their own fees or on certain statistical indicators, publishing the total cost of proceedings, including legal fees, raises questions about confidentiality and comparability. Litigation costs before courts are rarely transparent, making direct comparisons potentially misleading.
A possible middle ground discussed during the panel would be to report on narrower indicators, such as the proportion of institutional fees within the overall cost structure or statistics regarding the allocation of costs in arbitral awards, for example how frequently costs are fully or partially awarded to one party.
The debate illustrated how arbitral institutions increasingly operate at the intersection of procedural administration, governance and policy dialogue. Through legislative engagement, cooperation with courts, evolving appointment practices and discussions on transparency, institutions such as CEPANI, AFA, DIS, NAI and VIAC continue to shape the development of arbitration.
In that sense, the discussion suggested that arbitral institutions may increasingly be expected to act both as open guest houses for dialogue and cooperation, while remaining reliable fortresses safeguarding the fundamental principles of arbitration.
CEPANI40 at PAW
In the afternoon, the roundtable was followed by the Young Arbitration Associations event, co-organised by CEPANI40.
As is now a well-established PAW tradition, a number of leading below40 associations organise a comparative law discussion of a global theme of international arbitration. This year event explored the judicial powers in support of arbitration.
The excellent panel, moderated by Anne-Carole Cremades (Counsel, Schellenberg Wittmer), was composed of Maximin de Fontmichel (Professor at University Paris Saclay, France), Talia Bally (Associate at White&Case, Switzerland), Ryan Pistorius (Associate at Weintraub Huang LLP, Canada), and Joana Granadeiro (Principal Associate at Morais Leitão, Galvão Teles, Soares da Silva & Associados, Portugal).
Many participants then joined the, as-traditional, Young Arbitration Cruise on the Seine River for an evening of music, champagne, French wines, petits fours and canapés!
