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Two Motions, One Room: ASA below 40 Debates on Statutory Arbitration Clauses and Artificial Intelligence
Nhu-Hoang Tran Thang, Astute Dispute Resolution
On the morning of 25 September 2026, ASA below 40 convened for the Morning Seminar in advance of the ASA Fall Conference at the Bellevue Palace in Bern. The seminar proceeded by way of two structured debates, each examining a deliberately provocative proposition, both under the moderation of Yasmine Fulena (independent practitioner, Geneva).
In both debates, the speakers were assigned positions that did not necessarily reflect their personal views. The audience played an active role throughout. Participants voted on each proposition through QR-code polls before, during and after the exchanges, and put their own questions to the speakers from the floor.
Motion 1: All corporations in Switzerland should (with very few exceptions) put an arbitration clause in their articles of association
Since 1 January 2023, Art. 697n CO expressly allows Swiss companies to provide in their articles of association that corporate law disputes will be resolved by an arbitral tribunal seated in Switzerland. The Swiss Arbitration Centre complemented this framework with its Supplemental Rules for Corporate Law Disputes and a model statutory arbitration clause. Accordingly, the question of permissibility having been settled, the inquiry has shifted to whether the substantive merits of such clauses warrant their adoption as the prevailing standard for the resolution of Swiss corporate disputes.
Speaking in support of the motion, Florentin Weibel (Nater Dallafior) advanced the position that arbitration constitutes the forum most appropriately suited to address the interests of corporations, shareholders and directors, each of whom requires procedural efficiency and legal certainty. Corporate disputes — including, inter alia, claims for director liability and actions to set aside shareholder resolutions — are characteristically fact-intensive and of a commercially sensitive nature. Arbitration affords access to adjudicators with specialized expertise, expedited proceedings, and documentary disclosure mechanisms of particular utility to minority shareholders, while ensuring that parties and witnesses are afforded a meaningful opportunity to be heard. Furthermore, the adoption of statutory arbitration clauses would enable Switzerland to extend its established reputation as a jurisdiction favorable to arbitration into the domain of corporate disputes, thereby reinforcing confidence among foreign investors.
Speaking in opposition, Luca Castiglioni (Walder Wyss) acknowledged the significance of Art. 697n CO but submitted that it does not yet provide the degree of legal certainty required in practice. Adoption has remained modest, with approximately 640 companies having incorporated a statutory clause by June 2024 and approximately 1,744 as of the date of the seminar. No proceeding has yet been reported under the Supplemental Rules. Unresolved questions persist, including the precise scope of the concept of “corporate law dispute”, the treatment of post-bankruptcy liability claims brought by creditors who are arguably not bound by the clause, the risk of parallel proceedings before state courts and arbitral tribunals, and the carve-out of matters subject to summary proceedings (Art. 250 lit. c CPC) contained in the model clause. In response, Mr. Weibel contended that genuine areas of uncertainty are limited, as corporate disputes are properly understood as those arising from the relationship between the company, its shareholders and its directors, and that any residual questions will be clarified through practice over time.
The exchange then turned to Art. 697n al. 3 CO, which requires the articles to ensure that persons who may be directly affected by the award are notified of the commencement and termination of proceedings and are afforded the opportunity to participate in the constitution of the tribunal and to intervene. Mr. Castiglioni submitted that this provision imposes substantial operational burdens on companies with large or frequently changing shareholder bases, and observed that few existing clauses adequately address it. Mr. Weibel responded that only a limited category of proceedings is concerned, that the Supplemental Rules provide a pragmatic framework, and that the practical impact is likely to be modest, given that most shareholders of large companies do not attend general meetings.
The debaters further examined the traditional advantages of arbitration in this specific context, including neutrality, confidentiality, party autonomy in the selection of arbitrators, and enforceability abroad. Mr. Castiglioni concluded with a practical observation: a statutory clause should be adopted only after the company has been fully informed of its advantages and attendant risks, has tailored the clause to its shareholder structure, and has preferably based it on the model clause rather than an ad hoc formulation.
Questions from the floor addressed the compatibility of a mandatory arbitration clause with the right of access to a state court, and whether statutory clauses could afford Swiss listed companies protection against shareholder suits in foreign jurisdictions. The final poll was close, with fewer than 10 votes separating the two positions, but the room ultimately rejected the motion.
Motion 2: AI Will Not Fundamentally Change International Arbitration, neither in terms of costs nor in terms of the work that we do – Our Jobs Are Safe
The second debate turned to a question that no practitioner can disregard at present. The proposition was deliberately provocative: AI will not fundamentally change international arbitration, and our jobs are safe. Besnik Ibrahimi (Schellenberg Wittmer) defended it, advancing the position that AI constitutes a powerful instrument that leaves the essence of the practice unaltered. Juliette Asso (Asso Arbitration) opposed it, contending that AI will fundamentally transform both the economics of arbitration and the practice of its various actors. The debate was structured in two parts, first addressing the costs of arbitration and then the work of each category of actor. The initial poll revealed that a majority of the audience anticipated that AI would fundamentally change their professional roles.
On the question of counsel costs, Ms. Asso submitted that AI already performs a substantial portion of the billable work of counsel, including document review, citation verification, translation and initial drafting. In her submission, clients will increasingly decline to remunerate large teams and multiple tiers of review and push for fixed or alternative fee arrangements. Mr. Ibrahimi responded that counsel costs are principally driven by the exercise of human judgment rather than clerical tasks. Frictionless drafting further tends to produce lengthier submissions, and the verification of AI output is itself time-consuming.
The same question was then posed with respect to tribunals and institutions. Ms. Asso submitted that if AI enables arbitrators to summarize the parties’ positions and organize the evidentiary record in substantially less time, users will expect reduced fees, or at minimum the option of an AI-assisted tribunal at a lower cost. She referred to the AI arbitrator introduced by the AAA-ICDR in November 2025 for documents-only construction disputes. Mr. Ibrahimi responded that arbitrators are remunerated for their judgment, not for their speed. Moreover, under the ad valorem fee scales adopted by many institutions, fees are calculated by reference to the amount in dispute rather than time spent, such that expedited work will not result in reduced fees absent institutional reform of their fee structures. Institutional costs, for their part, represent only a minor proportion of the total.
The debate then proceeded to examine the impact on each category of actor. With respect to junior lawyers, Ms. Asso anticipated a shift from the production of documents to the validation of AI output, with smaller teams, and raised a fundamental question: who will train the next generation? Mr. Ibrahimi recalled that similar predictions accompanied the introduction of online databases and e-discovery, and that mastery of the record and verification of every citation remain the foundation of junior work. Concerning senior lawyers, Ms. Asso described a transition towards strategic advice, AI management and quality control. Mr. Ibrahimi countered that clients engage senior counsel for trust, judgment and advocacy, qualities that cannot be automated.
With respect to arbitrators, Ms. Asso submitted that AI redirects their time from identifying the issues to deliberating upon them, and summarized her practical approach as follows: “I would not delegate to an AI what I would not delegate to a tribunal secretary.” Mr. Ibrahimi responded that arbitrators are selected for their judgment, that one cannot properly deliberate upon a case without mastering the file, and that delegation raises legal risks, including under the EU AI Act and the New York Convention. Ms. Asso identified tribunal secretaries as the most exposed category. Mr. Ibrahimi described the secretary as a trusted confidant and cautioned that the loss of this apprenticeship could deprive the arbitration community of its future arbitrators.
The polls taken on each topic revealed a divided audience. Counsel work was identified as the category most likely to undergo transformation within ten years, and tribunal secretaries and junior lawyers as the most exposed roles. By the end of the debate, the audience had moved from its initial position towards a more nuanced view. During the Q&A, Ms. Asso addressed the disclosure of AI use by arbitrators, cautioning against opening a Pandora’s box at the first procedural conference. She further observed that AI-driven fast-track proceedings may be appropriate for smaller and repetitive disputes, while parties in complex matters will continue to expect to be fully heard.
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The ASA below 40 Morning Seminar was organized by Caroline Dos Santos (CMS), Nino Sievi (Nater Dallafior) and Duncan Gorst (Osborne Clarke), with the support of Manya Gopalakrishnan (ASA) and Nikolina Marusic (ASA). By combining substantive analysis with audience participation, the seminar once again provided young practitioners with a forum for the examination of ideas and engagement with the questions that will shape their professional practice.