Unlocking the power of sealed offers in international arbitration

For over two decades, the arbitration community has praised the inherent ben­efits of sealed offers in commercial disputes, encouraging their adoption from the common law tradition, especially England and Wales, into the international arbitration arena. Indeed, sealed offers promote early settlement of disputes and foster a highly efficient allocation of costs. Given the remarkable ability that international arbitration has demonstrated in integrating features from diverse legal backgrounds that coexist harmoniously in successful soft law instruments, it was reasonable to expect that sealed offers would soon become a common practice.

However, despite commendable efforts by practitioners and institutions like the ICC, sealed offers have not yet gained much traction in international arbitration. The reasons seem to be twofold. On the one hand, the awareness of this tool is not widespread. Many practitioners, especially from civil law traditions, but not only, have a limited understanding of this mechanism and have had no prior experience with it. As a result, they do not even contemplate it when advising their clients. On the other hand, the implementation of sealed offers in international arbitration lacks a clear and predictable procedure that would address the main concerns of the users. In consequence, parties are still reluctant to issue sealed offers.

See complete chapter at: 40 Under 40 International Arbitration (2024). González-Bueno, Carlos (Ed.). Dykinson, 2024.