Abstract

Modern arbitration has evolved beyond a purely adjudicative process into a sophisticated dispute management mechanism in which consensual settlement plays a central role. Contemporary arbitral frameworks increasingly recognise that tribunals may, consistent with party autonomy and due process, facilitate settlement without compromising neutrality. This article examines the evolving role of the arbitral tribunal in encouraging settlement, situates that role within international practice, and analyses the distinctive framework created by the Accra Arbitration Rules, particularly through their provisions on mediation, suspension of proceedings, and consent awards.

1. Arbitration and the Normative Legitimacy of Settlement Facilitation

Historically, arbitral orthodoxy conceived the tribunal as a passive adjudicator. Contemporary theory, however, increasingly recognises arbitration as a process of dispute resolution rather than dispute determination alone. Leading commentators such as Gary Born, Julian Lew, and Emmanuel Gaillard have argued that a well-managed arbitral process should promote efficiency, proportionality, and commercial reasonableness — all of which are advanced by early consensual resolution.

Institutional rules now commonly embed settlement facilitation within their architecture:

ICC Rules (Art. 30 and Appendix IV) encourage case management techniques conducive to settlement.

LCIA Rules (Art. 14.5) empower tribunals to adopt procedures conducive to efficiency.

SIAC Rules expressly provide for Arb-Med-Arb protocols.

ICSID tribunals increasingly issue procedural guidance encouraging amicable resolution, particularly in investment disputes.

The modern consensus is therefore clear: a tribunal may properly facilitate settlement, provided it does not coerce, pre-judge, or compromise procedural fairness.

2. The Legal Boundary: Facilitation vs. Improper Pressure

The legitimacy of tribunal-assisted settlement depends on three core constraints recognised internationally:

1. Preservation of Impartiality – The tribunal must not express views that prejudge the merits.
2. Voluntariness – Settlement must remain fully consensual.
3. Transparency of Process – Any facilitative steps should be procedurally structured and recorded.

This balance is reflected in the IBA Guidelines on Conflicts of Interest, which caution that evaluative mediation by arbitrators may give rise to justifiable doubts as to impartiality unless clearly consented to by parties.

3. The Accra Arbitration Rules: A Deliberately Integrated Settlement Architecture

The Accra Arbitration Rules go beyond passive encouragement and institutionalise settlement pathways within the procedural structure of arbitration.

(a) Express Recognition of Settlement and Consent Awards

The Rules explicitly recognise the power of the tribunal to transform settlement into a binding arbitral award:

> “In the event of a settlement of the parties’ dispute, the Arbitral Tribunal may render a consent award recording the settlement, if the parties request in writing.”

The doctrinal significance of this provision is substantial. A consent award benefits from:

Finality

Enforceability under the New York Convention

Immunity from merits review

Res judicata effect

This aligns the Accra Rules with international best practice, including:

ICC Rules Art. 33(1)

UNCITRAL Arbitration Rules Art. 34(1)

ICSID Arbitration Rule 43(2)