Joel Soon and Angélica María Perdomo-Luna1
On 17 November 2025, HIALSA launched the 2025–2026 edition of its flagship Masterclass Series, “The International Arbitration Playbook”, with a session that pulled back the curtain on everything that happens before an arbitration formally begins. Titled “Before the First Briefs: What Precedes the Start of an Arbitration,” the opening masterclass was held at Harvard Law School and brought together leading practitioners and in-house counsel from various backgrounds:
- Jared Hubbard – Vice President of Operations and General Counsel, Scytáles
- Israel Ismail – Senior Vice President and Head of Legal Services and Compliance, Signify
- Joseph Klingler – Partner, Foley Hoag
- Ruth Montiel – Senior Associate, Freshfields Bruckhaus Deringer
- Hafsa Ahmad – International Associate, Three Crowns (Moderator)
The discussion offered diverse perspectives on the strategic, commercial, and political considerations that shape a dispute before a notice of arbitration is filed.
The panel opened with a question about negotiating dynamics: how much room is there for real negotiation when drafting arbitration, and how do those dynamics differ between State entities, multinational corporations, and private commercial actors?
The answer to this question, unsurprisingly, varies by context. As a starting point, the panel noted that dispute resolution clauses rarely dominate negotiations. Since parties generally default to familiar seats and well-established institutions, it may take as little as 10 minutes to negotiate and finalize an arbitration agreement. By contrast, commercial terms such as pricing, insurance, and risk allocation tend to demand more detailed negotiations, and therefore more time and effort from the parties.
The panel then highlighted the distinction between Business-to-Business and Business-to-Government deals. For the former, predictability often matters more than perfection, especially when negotiators lack authority to revise dispute resolution clauses. For the latter, the focus is often on the seat, governing law, and institutional rules, since these decisions shape future procedural risk.
The second question was: From the State side, is a notice of dispute sometimes used as leverage to prompt change or negotiation rather than a signal of intent to arbitrate? How do companies view that same dynamic from their end, particularly if they want to maintain business relations with that State?
From the State’s perspective, notices of dispute can be used to prompt a government to change its approach towards a particular investment or settle financially. Very often, they may not necessarily result in arbitration. From the investor’s perspective, choosing between a robust or simple notice of dispute depends on its objective. Complex and robust notices often serve as leverage to bring the State to the negotiating table. For an investor, bringing an arbitration is rarely the first port of call, as it may aggravate the dispute and sour the relationship with the State. Alternatives, such as recourse via local courts or lobbying to exert pressure, may prove a better initial approach than immediately pursuing arbitration.
The third point of discussion explored the deciding factors that compel a party to pursue arbitration. The panelists identified three prominent legal factors: whether there is a forum with jurisdiction, the legal merits of a claim, and enforceability of an award. In the context of interstate disputes, the decision to arbitrate also takes into account political cost: the popularity of arbitrating, the effect it would have with the other State, and the other State’s relationships with powerful third States. Companies view it as a business decision, focusing on the strength of their position on the merits, the location of assets, enforceability, and costs. Another relevant issue is whether arbitration advances long-term interests of the company.
The discussion then shifted from strategic considerations to practical collaboration. The panel addressed the question of how external and internal counsel can best collaborate in the event of arbitration.
When working with States, being able to navigate the bureaucracy is crucial. Because each government is unique, having someone who has worked with them previously can be tremendously helpful. External counsel can also rely on government clients to organize site visits and establish contact with relevant witnesses.
Moreover, alignment and communication between counsel and client are key to fruitful collaborations. External counsel should devote time and effort to understanding each client’s definition of success. This will allow them to deliver a service that satisfies the client’s expectations. On the in-house counsel side, leading roles, like the general counsel, will often need to control the narrative in each dispute, identify the right persons to communicate with external counsel, and decide what information gets fed to the board. ´Finally, the panelists agreed that being transparent about how arbitration operates is crucial, especially when dealing with clients that lack experience with it. This could be setting expectations in terms of costs, the amount of time it would take before the arbitration is fully resolved, and confidentiality.
Overall, this first masterclass delivered on its promise to reveal what happens before the first briefs are filed, demonstrating that successful arbitration depends as much on strategic foresight and relationship management as on legal expertise.
- VPs of Masterclasses, HIALSA ↩︎