Arbitration in Transition: Technology, Strategy, and Human Judgment

International arbitration is evolving rapidly, shaped by increasingly complex cross-border disputes, the rise of AI tools, and the demand for faster, more efficient proceedings. Today’s practitioners must balance confidentiality concerns, cultural nuances, as well as strategic advocacy to deliver the best outcomes for their clients.

In this conversation, we talked to Vsevolod Volkov, partner of EVERLEGAL Law Firm, and discussed the realities behind the headlines – from managing client expectations and navigating foreign law challenges to exploring the opportunities and limits of AI in legal work. 

Olga Usenko (O. U.): In the past we talked a lot about high level arbitration trends and tendencies. And now I want to ask you about the practical aspects of day-to-day arbitration activities. What sort of challenges would you receive as a lawyer at the stage when you accept an arbitration-related assignment from a client?

Vsevolod Volkov (V. V.): There are quite a lot of factors which need to be considered and which, indeed, do present challenges. But I would stop on just two of them.

When a client comes to you with an arbitration dispute, this is usually done after unsuccessful negotiations between commercial people and, to a lesser extent, by in-house counsel. The client’s view of the dispute is often driven by resentment and grievances because of the failed project. In addition to that, the view of clients is contaminated with their knowledge and events and negotiations before execution of the contract, all of which might have no impact at all on the contractual undertakings that were finally agreed between them. Therefore, one of the important tasks at this initial stage for the lawyers is not to get carried away with a client’s emotional attitude towards the dispute, and to get as much information as possible regarding the other party’s complaints and grievances which clients usually devalue or consider irrelevant and far-fetched, and then assess such information at law.

Another challenge is foreign law, if the contract is governed by it. While it is fair to assume that legal systems of civil law countries are similar in many ways, there are always a lot of nuances which approach or curve-out the same issue in a different way. Common law has even more nuances. For instance, in the majority of civil law systems pre-contract negotiations may be helpful in interpreting the contract, while in common law they usually aren’t.

O.U.: When talking about foreign law in arbitration, what is your approach to establishing it?

V.V.: Of course, the best way to approach this is to receive advice from lawyers who are foreign qualified. Proper advice on foreign law, however, is almost never accessible at the initial stages when you accept an arbitration assignment from the client. Furthermore, it may not be accessible even at the main stage of arbitration due to budgeting constraints. If such foreign law advice is not accessible, then use all sources available – books, articles, google and AI.

O.U.: It’s good that you mentioned AI. What is your experience of the use of AI arbitration projects?

V.V.: I have to say that the use of artificial intelligence by lawyers and for client-related work does have its limitations, and those limitations are connected with confidentiality concerns. Open AI providers are not yet able to offer a product that adequately addresses those. I find it undesirable and unsecured to request AI to analyze a client’s documents or prepare submissions for written advocacy. I know that there are some developers, including Ukrainian start-ups, aiming to create closed and secure AI platforms but we need to wait till their product is tested and marketed.

On the practical side, I would not say that I am an advanced AI user but I find AI tools to be quite helpful and fun to use for research purposes. AI is indeed much quicker than the human brain in doing this and is capable of providing useful leads. With regard to the ultimate quality of that research, I have to say that I have not yet got an AI answer that I was fully satisfied with. AI quite often makes mistakes, even in arithmetical calculations, or it can suggest legal sources which on the face of it seems pertinent but which, following further review, appear inapplicable or even do not exist. In my opinion, AI may be fast in research and in providing suggestions as to how to structure the path of argument, but the quality of that research and suggestions is not comparable to the human brain and there is a long way to go. In my experience, the products you get from AI today require at least the same level of proofing as the product you receive from a first-year junior associate.

There were public statements from many that AI would replace the legal profession in a 5-year-period. As things stand today, I can only agree that AI will make the work of lawyers much easier within a prospective 5-year period, but it is not close to replacing lawyers. This is valid not only for contentious lawyers but also for transactional lawyers or those involved in consultancy.

That I think is the major benefit of AI right now. That you can ask AI as many questions as come to your mind without the fear of getting your legal companion irritated with what might seem to be an endless chain of obtuse or unintelligent questions to a human professional.

O.U.: As the arbitration process progresses, where do you see the important practical points or areas of improvement for Ukrainian arbitration practitioners?

V.V.: I have seen quite a lot of submissions and awards in cases where the client was represented by Ukrainian counsel. The product Ukrainian counsel deliver has dramatically increased in terms of quality over the last two decades. There is, however, still room for improvement. I can point out at least three issues.

The first one. Ukrainian counsel do not usually resist the client’s desire to put into substantive submission the description of all events that the client was unhappy with in the course of its relationship with the counterparty. It quite often happens that those unhappy events do not have relevance in determining their claims but they spent time on drafting and providing evidence for, and this distracts the tribunal’s attention from actual claims. A good approach to take is to have the list of issues that need to be decided by the tribunal and to structure your factual description and evidence only around those issues.

The second issue. I see that Ukrainian arbitration practitioners tend to make factual assertions believing that certain facts are well known and do not provide evidence to support them. It remains debatable as to how much personal knowledge the arbitrator can actually bring to the case, and it’s always better to have evidence in support of your case rather than rely on the arbitrator’s knowledge.

The third one. I quite often see submissions based solely on the argument that a certain point belongs to the burden of proof by the other party. I see that arbitrators are often reluctant to accept such arguments in cases when a party relying on it can easily present evidence to refute the other party’s case. One of the tasks of counsel in arbitration is to help the arbitrator to reach a decision and if counsel has evidence which would make an arbitrator’s job to determine it easier, to present it. Otherwise, the consequences might be negative.

The fourth, Ukrainian arbitration practitioners occasionally structure their argument on the premise that if their client’s factual assertion wasn’t contested by the other party then such factual assertion is accepted. This is not a wise way of going about, and I see that arbitrators may be more comfortable in not making any inferences from such factual assertions if they are not supported with evidence, or give little probative value to them.

O.U.: In your arbitration experience have you had cases when claims in the arbitration were completely different from the pre-arbitration phase or changed in the course of arbitration?

V.V.: No, I have not had such cases. However, I have had cases when claims in arbitration were substantially altered in the arbitration. I see that this is an absolutely normal way to proceed for claimants if, after review of the case, you have come to the opinion that some claims have little or no merit, or you will not be able to discharge the burden of proof. The situation for respondents who are defending themselves against claims is much different. Any new defense, not raised in the pre-arbitration stage, may be treated with a substantial degree of skepticism.

I also find it normal to change the claimant’s case in the course of arbitration, after receipt of the other party’s defense and after the stage when documents are produced, if such stage is justified. The main thing is to do this in a timely manner.

O.U.: Witness statements in arbitration. How important are they?

V.V.: I have to say that I love witness statements. There is always a debate about what weight witness statements shall be given, and some arbitration practitioners advocate the view that witness statements shall not be given no more weight than once they have been collaborated with written evidence.

I find witness statements useful for telling the party’s story. Moreover, it brings to arbitration the feeling of “humanity” when compared with cases which are only based on documents.

The cross-examination of witnesses is another piece of art. I have yet to meet a lawyer who was not a fan of cross-examination.

O.U.: What is your attitude towards amicable settlements in arbitration?

V.V.: It is no coincidence that almost all dispute resolution clauses start with the obligation of the parties to try to settle their dispute in an amicable way. On the other hand, arbitration exists because the parties are not able to reach an amicable settlement at the outset.

As regards amicable settlement in the course of arbitration proceedings, this is an option which is definitely worth thinking of by every party. The obvious benefit is that it provides a predictable outcome. Lawyers acting as counsel in arbitration will always bear amicable settlement in mind and, if circumstances so dictate, the suggestion of an amicable settlement will be treated very seriously.

Amicable settlement, however, is often more difficult to navigate than the arbitration proceedings themselves. Experienced arbitration practitioners are more equipped in weighing up the strong and weak points of the claimant’s and respondent’s cases, and in providing expectations on the substance of a future arbitral award. Questions remain as to which point in time a settlement offer should be made with which the parties would be happy with. In my experience all parties are usually happy with an amicable settlement reached prior to the hearing or after the award. In the first instance they possess sober understanding of their merits and thrive to remove the costs of the hearing. In the second instance the parties possess sober understanding of their bargaining positions and settlement before enforcement provides benefits to both parties. Settlement after the hearing but before the award, is almost always connected with some emotional trauma, at least for one party. The settlement terms in such cases are not easy to live with.

O.U.: And finally, as any arbitration ends there is always the temptation to publish in the media that you played a part in it. What is your attitude towards such a publication?

V.V.: It is always a battle between the firm’s PR people and its lawyers. It is the task of PR people to make public as much positive news about the firm as possible. Under our attorney’s ethics rules even the fact that the client requested legal assistance is considered privileged information and this status is not limited in time. Any leaking of information regarding arbitration, including on an anonymous basis, may be detrimental to the client since the majority of people can read between the lines. Keeping the arbitration confidential may also help the settlement post-award if it is in the interests of the other party in the matter in question not to become public in the course of recognition and enforcement proceedings.

Therefore, itvmy point of view is that any publication shall naturally be initiated by the client and is permissible only if it serves the client’s interests. Even if the publication is neutral I would rather not do it.