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Agreed Settlement v. Unfavourable Award in Investment Arbitration*

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Settlement of a dispute by an agreement is something that in many cases remains behind the curtain. It is axiomatic that if a party has weak chances to obtain a favourable award, it needs to think of a settlement. Settlement may occur at three major phases of dispute evolution as pre-arbitration, pre-award, and post-award settlement. About 30-40 per cent of the concluded ICSID cases have been discontinued by means of an agreed settlement. Only in rare cases the terms of such discontinuance become known to public. The advantages of settlement are: predictability of the outcome, confidentiality, non-admission of liability, saving costs, finality of settlement, possibility of continued cooperation of the parties. The major concerns about settlement are: amount of compensation, disclosure of confidential terms of a failed settlement, responsibility for payment of the settled amount without an award.

Affiliations: 1: Partner, Law and Patent firm Grischenko & Partners, Kiev, Ukraine, Candidate of Legal Science (Kiev University), PhD (EUI, Florence); counsel to Ukraine in six ICSID arbitrations and several non-ICSID investment arbitrations,


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