2021 International Arbitration Survey: Adapting arbitration to a changing world - School of International ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
2021 International
Arbitration Survey:
Adapting arbitration
to a changing world
Title intial caps only goes here I
Contents Executive summary Page 2 International arbitration: Current choices and future adaptations Page 5 Diversity on arbitral tribunals: What’s the prognosis? Page 15 Use of technology: The virtual reality Page 20 Sustainability and information security: Opportunities and challenges Page 28 Appendices Methodology Page 34 School of International Arbitration, Queen Mary University of London Page 37 White & Case International Arbitration Practice Page 38 Truly global Page 39 Acknowledgements Page 40
2021 International Arbitration
Survey: Adapting arbitration
to a changing world
T
he field of international arbitration is dynamic by nature. Its hallmarks of flexibility and
party autonomy allow it to develop and adapt in response to the needs of its users.
Recent times have seen an increased focus on drivers of change such as diversity,
technology, environmental considerations and information security. The COVID-19 pandemic has
also presented challenges to the way in which the international arbitration community interacts.
The 2021 International Arbitration Survey, titled ‘Adapting arbitration to a changing world,’ explores
how international arbitration has adapted to these changing demands and circumstances. The survey
investigates trends in user preferences and perceptions, and identifies opportunities for international
Abby Cohen Smutny
arbitration to adapt more and better. This edition saw the widest-ever pool of respondents, with 1218
Global Head of International
questionnaire responses received and 198 interviews conducted. Views were sought from a diverse
Arbitration Practice Group,
pool of participants in the international arbitration sphere, including in-house counsel from both public
White & Case LLP
and private sectors, arbitrators, private practitioners, representatives of arbitral institutions and trade
associations, academics, experts and third-party funders.
White & Case is proud once again to have partnered with the School of International Arbitration.
The School has produced a study which provides valuable insights into how international arbitration
has adapted, and what more needs to be done by and for its diverse stakeholders. I am confident
that this survey will be welcomed by the international arbitration community.
We thank Norah Gallagher and Dr Maria Fanou (White & Case Postdoctoral Research Fellow in
International Arbitration) for their exceptional work, and all those who generously contributed their
time and knowledge to this study.
I
t is with a sense of relief that I present the 2021 International Arbitration Survey on
‘Adapting arbitration to a changing world’. In fact, that is exactly what happened just after we
started work on the draft questionnaire in early 2020—the world changed due to COVID-19.
We could not have known at that time quite how big an impact the pandemic would have globally.
In such uncertain times, we had to postpone the launch of the survey for several months. We had
no way to assess how long we should wait to start and how it might impact on the survey results.
The strength of the survey is entirely based on the level of participation by the arbitration
community. It was an anxious time to see whether COVID-19 would adversely impact the numbers.
Norah Gallagher
I was truly grateful for the support of the international arbitration community as the largest number
Deputy Director, School of
of people ever completed the survey—more than 1,200. Dr Fanou also interviewed almost 200
International Arbitration
candidates from 29 countries to provide nuance and context for some of the findings. We thank all
Centre for Commercial
of the respondents for making this survey so comprehensive—a true success despite the pandemic.
Law Studies, Queen Mary
This is the 12th empirical survey conducted by the School of International Arbitration at
University of London
Queen Mary University of London and the fifth in partnership with White & Case LLP. The results reflect
an interesting snapshot of change in arbitral practice during a time of global upheaval. The arbitration
community had to adapt quickly, and some of these changes will remain after the pandemic recedes.
Virtual hearings and increased reliance on technology are clear examples of changes that will persist.
It has been a challenging yet rewarding process, but we are pleased with the interesting results. This
survey may also prompt further discussion on future changes to arbitral practice and procedural rules.
Attorney Advertising
Executive summary
International Arbitration: Diversity on arbitral
Current choices and tribunals: What’s
future adaptations the prognosis?
International arbitration is the preferred More than half of respondents agree Many respondents feel that opportunities
method of resolving cross-border disputes that progress has been made in terms to increase the visibility of diverse
for 90% of respondents, either on a of gender diversity on arbitral tribunals candidates should be encouraged
stand-alone basis (31%) or in conjunction over the past three years. However, through initiatives such as ‘education and
with ADR (59%). less than a third of respondents believe promotion of arbitration in jurisdictions
there has been progress in respect of with less developed international
The five most preferred seats for
geographic, age, cultural and, particularly, arbitration networks’ (38%), ‘more
arbitration are London, Singapore,
ethnic diversity. mentorship programmes for less
Hong Kong, Paris and Geneva.
experienced arbitration practitioners’
Respondents are divided as to
‘Greater support for arbitration by (36%) and ‘speaking opportunities at
whether there is any connection
local courts and judiciary’, ‘increased conferences for less experienced and
between diversity on a tribunal and
neutrality and impartiality of the local more diverse members of the arbitration
their perception of the arbitrators’
legal system’, and ‘better track record in community’ (25%). Building visibility
independence and impartiality. Just over
enforcing agreements to arbitrate and is particularly important in light of the
half of the respondents (56%) stated
arbitral awards’ are the key adaptations general perception that users prefer
that diversity across an arbitral tribunal
that would make other arbitral seats arbitrator candidates about whom they
has a positive effect on their perception
more attractive. have some knowledge or with whom
of the arbitrators’ independence and
they have previous experience.
The UNCITRAL Arbitration Rules impartiality, but more than one-third
are the most popular regime for (37%) took a neutral view. Others
The general consensus amongst
ad hoc arbitration. consider the enquiry redundant, on the
respondents is that caution should be
basis that the call for more diversity does
The five most preferred arbitral exercised when exploring whether
not require further justification.
institutions are the ICC, SIAC, HKIAC, adaptations in arbitral practice
LCIA and CIETAC. 59% of respondents emphasise the experienced during the COVID-19
role of appointing authorities and arbitral pandemic may have an impact on
Respondents chose ‘administrative/ institutions in promoting diversity, promotion of diversity objectives, as it can
logistical support for virtual hearings’ as including through the adoption of express go both ways. Virtual events, meetings
their top choice adaptation that would policies of suggesting and appointing and hearings may facilitate participation
make other sets of arbitration rules diverse candidates as arbitrators. by more diverse contributors, but this
or arbitral institutions more attractive, However, the significance of the role of may be hindered by unequal access to
followed by ‘commitment to a more counsel is highlighted by about half of technology and the challenges of building
diverse pool of arbitrators’. respondents, who included ‘commitment relationships remotely.
Arbitration users would be most willing by counsel to suggesting diverse lists
to do without ‘unlimited length of written of arbitrators to clients’ amongst their
submissions’, ‘oral hearings on procedural answers. In-house counsel also bear the
issues’ and ‘document production’ if this onus of encouraging diversity through
would make their arbitrations cheaper their choice of arbitrators.
or faster.
2 White & Case
Use of technology: Sustainability and
The virtual reality information security:
Opportunities
Technology continues to be widely used and challenges Only around a quarter of respondents
in international arbitration, particularly said they have ‘frequently’ or ‘always’
Respondents show a willingness
‘videoconferencing’ and ‘hearing room seen cybersecurity measures being put
to adopt paperless practices, such
technologies’, but the adoption of AI in place in their international arbitrations.
as production of documents in
still lags behind other forms of IT. The majority (57%) encountered such
electronic rather than hard-copy form;
measures in less than half of their cases.
The increase in the use of virtual hearing providing submissions, evidence and
rooms appears to be the result of how correspondence in electronic format; The IT security measures and tools most
the practice of arbitration has adapted and the use of electronic hearing used or recommended by respondents
in response to the COVID-19 pandemic, bundles. Many respondents would also include ‘cloud-based platforms for
as users have been forced to explore welcome more ‘green’ guidance, both sharing electronic or electronically
alternatives to in-person hearings. from tribunals and in the form of soft law. submitted data’; ‘limiting access to
prescribed individuals’; ‘data encryption’;
If a hearing could no longer be held in While the environmental benefits of
and ‘access controls, e.g., multi-factor
person, 79% of respondents would choose remote participation rather than in-person
authentication’. Almost half of the
to ‘proceed at the scheduled time as a participation are recognised, this this
respondents recommended the use of
virtual hearing’. Only 16% would ‘postpone is not the primary motivation behind
‘secure/professional email addresses for
the hearing until it could be held in person’, the decision as to whether interactions
arbitrators rather than web-based email
while 4% would proceed with a documents- should be remote or in-person.
providers (i.e., no Gmail, Yahoo, Hotmail,
only award.
There appears to be increasing etc.)’.
Recent (and, in many cases, new) awareness of the need to embrace
Respondents appreciate being able
experience of virtual hearings has offered ‘greener’ practices. However, the overall
to rely on specialist IT support and
an opportunity to gauge users’ perception message from respondents is that the
systems to ensure robust cybersecurity
of this procedural adaptation. The ‘potential reduction of environmental impact is
protections are in place.
for greater availability of dates for hearings’ a welcome side-effect of their choices
is seen as the greatest benefit of virtual throughout the arbitral process, rather Although there are encouraging signs
hearings, followed closely by ‘greater than a priority in and of itself. that users are mindful of cybersecurity
efficiency through use of technology’ and issues and the need to address them,
Even though users generally acknowledge
‘greater procedural and logistical flexibility’. there is nonetheless ample scope for
data protection issues and regulations
Aspects that gave respondents most more engagement on this front.
may have an impact on the conduct
cause for concern included the ‘difficulty of
of arbitrations, the extent and full
accommodating multiple or disparate time
implications of that impact are not
zones’, the impression that it is ‘harder for
understood by all. 34% of respondents
counsel teams and clients to confer during
predicted that data protection issues
hearing sessions’ and concerns that it
and regulations have ‘limited impact at
might be ‘more difficult to control witnesses
present but [this is] likely to increase’.
and assess their credibility’. The fallibility of
technology and the phenomenon of ‘screen
fatigue’ were also cited.
Going forward, respondents would prefer
a ‘mix of in-person and virtual’ formats for
almost all types of interactions, including
meetings and conferences. Wholly
virtual formats are narrowly preferred for
procedural hearings, but respondents would
keep the option of in-person hearings open
for substantive hearings, rather than purely
remote participation.
2021 International Arbitration Survey 3International arbitration:
Current choices and
future adaptations
International arbitration together method of resolving cross-border
with ADR: The winning formula disputes, either as a standalone
We asked respondents what their method (31%) or in conjunction with Summary
preferred method of resolving ADR (59%). Only an aggregate of
cross-border disputes would be 4% is equally split between ‘ADR International arbitration is the preferred
post COVID-19. Respondents were only’ and ‘cross-border litigation’ method of resolving cross-border disputes
asked to choose one of five options: as standalone options, while 6% for 90% of respondents, either on a stand-
‘international arbitration together with indicated a preference for ‘cross- alone basis (31%) or in conjunction with
ADR’, ‘cross-border litigation together border litigation together with ADR’. ADR (59%).
with ADR’, ‘international arbitration’ as This year’s findings once again
a standalone option, ‘ADR only’, and reveal a noticeable increase over The five most preferred seats for arbitration
‘cross-border litigation’ as a standalone recent years in the overall popularity are London, Singapore, Hong Kong, Paris
option. We clarified that ADR would of arbitration used in conjunction and Geneva.
include, for example, adjudication, with ADR: 59% of respondents
dispute boards, expert determination, expressed their preference for this ‘Greater support for arbitration by local
mediation and negotiation, but exclude combination, as opposed to 49% in courts and judiciary’, ‘increased neutrality
litigation and arbitration. 2018 and only 34% in 2015.2 and impartiality of the local legal system’ and
In previous surveys by Queen These results reflect an ongoing ‘better track record in enforcing agreements
Mary University of London, trend, as confirmed in interviews. to arbitrate and arbitral awards’ are the key
arbitration, as either a standalone Although the question expressly adaptations that would make other arbitral
option or in conjunction with ADR, referred to the post-COVID-19 seats more attractive.
was consistently selected as landscape, interviewees explained
the preferred dispute resolution that their answers were not The UNCITRAL Arbitration Rules are the
mechanism for cross-border influenced by the pandemic. The most popular regime for ad hoc arbitration.
disputes.1 This preference was factors that influenced their choices
confirmed again in this survey. remained largely the same. This is The five most preferred arbitral institutions
In particular, an overwhelming why they expected to continue to are the ICC, SIAC, HKIAC, LCIA and CIETAC.
majority of the respondent group use the same dispute resolution
(90%) showed a clear preference options as they were using Respondents chose ‘administrative/logistical
for arbitration as their preferred pre-pandemic. As an immediate support for virtual hearings’ as their top
choice adaptation that would make other
sets of arbitration rules or arbitral institutions
more attractive, followed by ‘commitment to
a more diverse pool of arbitrators’.
Chart 1: Post-COVID-19, what would be your preferred
method of resolving cross-border disputes? Arbitration users would be most willing
to do without ‘unlimited length of written
6% submissions’, ‘oral hearings on procedural
2%
2% International arbitration issues’ and ‘document production’, if this
together with ADR would make their arbitrations cheaper
International arbitration or faster.
ADR only
31%
Cross-border litigation
Cross-border litigation
59% together with ADR
2021 International Arbitration Survey 5Chart 2: What are your or your organisation’s most preferred seats?
54% 54%
50%
35%
13% 12% 12%
8%
6% 5%
London Singapore Hong Kong Paris Geneva New York Beijing Shanghai Stockholm Dubai
Percentage of respondents who included the seat in their answer
consequence of the pandemic, boards to be a good, efficient and respondents. The rise in popularity of
respondents referred to an initial often cheaper dispute resolution key Asian arbitral hubs demonstrated
feeling of being ‘numb’—effectively, option that helped their clients by Singapore’s success is mirrored by
a ‘procedural paralysis’. Only a few
private practitioners observed that 54% avoid lengthy and time-consuming
arbitrations. Standing dispute
Hong Kong, which takes third place
(50%). Paris comes in fourth (chosen
their clients were now exploring boards were also reported to be a by 35% of respondents) followed
settlements more willingly than useful means of dispute prevention. by Geneva in fifth place (13%
previously. London and, for However, the main concern noted of respondents).4
Generally, interviewees noted the first time, was that the decisions of dispute Reviewing the findings of our
that recourse to ADR was in the Singapore, boards are not generally enforceable. 2015, 2018 and current surveys,
were the most
hope that a swifter and more cost- preferred seats This means that if a decision is it seems that these cities have
efficient resolution could be found with scores not mutually accepted, the parties cemented a dominant position as
of 54%
before resorting to arbitration. In ‘will be back to square one’, facing seats of choice. This is perhaps to
many cases, there is a contractual potentially duplicative and costly be expected given that each of them
mandate to use ADR, typically arbitration proceedings for the has a longstanding and recognised
through multi-tiered escalation same dispute. reputation as a ‘safe seat’ for
clauses. Even when there is no international arbitration.5 Indeed,
contractual requirement to do so, Which seats are most preferred? based on the previous surveys,
interviewees confirmed a willingness Choice of arbitral seat is a key issue it was expected that they would
to explore suitable alternatives to for users of international arbitration. continue to be popular. This has been
resolve disputes. This explains opting We sought to identify the seats that borne out in these latest findings.
for ‘arbitration together with ADR’ are most preferred by respondents London’s continued presence at
for the purposes of this question as or their organisations, allowing the top of the table suggests that,
opposed to arbitration as a stand- them to list up to five seats in free- as was predicted by the majority
alone option. text boxes. Reflecting the global of the respondents in our 2018
In addition, in certain types of nature of international arbitration, survey,6 its popularity as a seat has
disputes, there are established respondents cited more than 90 not been significantly impacted (at
practices of recourse to other means different seats from a range of least so far) by the UK’s withdrawal
of dispute resolution; for instance, jurisdictions around the world. from the European Union. London
interviewees with experience in Notwithstanding the number of retains its reputation amongst users
disputes in the construction industry choices available to international as a reliable seat of choice.
reported positively on the use of arbitration users, the top-five What is more striking, however,
disputes boards in that sector. They preferred seats should not come is the significant percentage gains
explained that dispute adjudication as a surprise when looking at the made by Singapore (54%) and
and dispute review boards are results from our previous surveys.3 Hong Kong (50%), as compared to
commonly used in construction There has, however, been interesting our previous surveys. Singapore
projects. In some cases, the contract movement within the top-five was the third most frequently
provides for dispute boards in the rankings. While London once again chosen seat in 2018, selected
form of standing bodies assigned stands at the top of the charts, for by 39% of respondents, and it
to monitor the projects. Several the first time it shares this position came in fourth in 2015, chosen by
interviewees noted that, in many with Singapore—each was included 19% of respondents. Hong Kong
instances, they have found dispute in the top-five picks of 54% of the took fourth place in 2018, chosen
6 White & Caseby 28% of respondents, and it percentage of respondents who
was third in 2015, as a seat of included it in their answers—from
choice for 22% of respondents. 26% in 2018 to 13% now.
Interviewees confirmed that these Similarly, while the other seats
seats are considered safe, obvious rounding out the top seven in both
choices of established quality.
Interestingly, some interviewees
2015 and 2018 continue to be seen
as safe choices by respondents—
While the ‘global powerhouse’
mentioned the presence of well- namely, New York and Stockholm seats continue to be popular,
—seats in other regions have
established arbitration institutions,
such as SIAC in Singapore, as an gained in popularity. Beijing joins
there are many regional seats
additional factor they consider New York as joint sixth most popular which are growing in reputation
when choosing the seat.7 The seat, with each chosen by 12%
growth in popularity of seats in this of respondents. Shanghai comes and popularity
region year-on-year8 may reflect an in eighth (8%), with Stockholm
increasing willingness by parties dropping from the seventh place
with commercial interests linked to it held in previous surveys to ninth Hong Kong, Paris and Singapore
that locale to also resolve disputes place (6%). The top ten is rounded were all ranked in the top-five most
‘locally’. It will be interesting to see out by Dubai, chosen by 5% preferred seats in all regions.
whether large-scale commercial of respondents. A number of other popular seats
projects, such as the Belt and Road Other cities that were each reached the top five in several
Initiative, will continue to impact listed by 4% to 2% of respondents regional subgroups; for example,
this in the future. included: Zurich; Vienna; Geneva was the fourth most
The increases enjoyed by Washington, DC; Miami; Shenzhen; Hong Kong, Paris preferred seat in Europe, Africa and
these seats may also correlate São Paolo; Frankfurt; and The Hague. and Singapore the Middle East, and fifth in the
with a relative reduction in the were amongst Caribbean/Latin America.
the top-five
percentage of respondents who The regional picture preferred seats Several seats outside the global
included traditionally dominant We analysed the results for in all regions top ten did make it to the top ten
European seats, such as London, respondents practising or operating in the regions in which they are
Paris and Geneva, in their answers. in various regions,9 which revealed located. In Africa, this was the case
London was selected by 64% of a number of fluctuations. London, with Cairo (12%) and Nairobi (6%);
respondents in 2018, making it for example, topped the charts in Asia-Pacific, Shenzhen (4%);
the most selected that year, but it for all regions in our 2018 survey; in the Caribbean/Latin America,
dropped to 54% in this edition of although it continues to enjoy first São Paolo (21%), Miami (15%)
the survey. Paris fell even further, place for most regions this time, and Lima (6%). Madrid (5%) also
from its second place showing in it was not selected as the most made the top ten for the Caribbean/
2018, with 53% of respondents preferred seat for respondents in Latin America. Although it seems
including it in their selections, to Asia-Pacific and did not feature that the ‘global powerhouse’
fourth place this year, as a seat of at all in the top picks for the seats will continue to be popular,
choice for 35% of respondents. Caribbean/Latin America. In there are many regional seats
Geneva also retained its position in Asia-Pacific, both Singapore and which are growing in reputation
previous surveys as the fifth most Hong Kong surpassed London by a and popularity.
popular seat, but with a dip in the significant margin (more than 20%).
Chart 3: Top-five most preferred seats by region
76% 78%
74%
69% 67% 71%
64% 67% 66%
63%
54% 55%
50% 48%
46% 46%
37% 38%
32% 30% 29% 27%
25%
19% 19% 21% 19% 26%
18%
15%
Africa Asia-Pacific Caribbean/ Europe Middle East North America
Latin America
Beijing Geneva Hong Kong London New York Paris São Paulo Singapore
Percentage of respondents who included the seat in their answer
2021 International Arbitration Survey 7Chart 4: What adaptations would make other seats more attractive to users?
Greater support for arbitration by local courts and judiciary 56%
Increased neutrality and impartiality of the local legal system 54%
Better track record in enforcing agreements to arbitrate 47%
and arbitral awards
Ability to enforce decisions of emergency arbitrators or interim
39%
measures ordered by arbitral tribunals
Ability for local courts to deal remotely with 28%
arbitration-related matters
Political stability of the jurisdiction 25%
Allowing awards to be signed electronically 14%
Third-party funding (non-recourse) permissible in the jurisdiction 8%
Other 3%
Respondents were able to select up to three options
What adaptations would make closely followed by ‘increased to users.10 This follows a well-
other seats more attractive? neutrality and impartiality of the trodden path of reasons identified
More than 90 different seats local legal system’ (54%) and by the respondents in our 2018
were mentioned in response to ‘better track record in enforcing survey as the most important when
the previous question on seat agreements to arbitrate and arbitral choosing arbitral seats.11 These
preference. This shows that awards’ (47%). The other choices criteria are seen as long-term
although the most popular seats ranked as follows: ‘ability to enforce markers of quality that determine
enjoyed the lion’s share of the
votes, there is still significant
decisions of emergency arbitrators
or interim measures ordered by 90+ user preference. They include
unhindered access to arbitration
scope for seats outside the top arbitral tribunals’ (39%), ‘ability for More than 90 promoted by local courts, neutrality
ranks to attract users. We asked local courts to deal remotely with different seats and impartiality of the local
respondents to indicate what arbitration-related matters’ (28%), were mentioned judiciary, and an enforcement
in response to
adaptations would make seats more ‘allowing awards to be signed the question on track record.
attractive other than those they say electronically’ (14%), ‘political seat preference
they preferred. Respondents could stability of the jurisdiction’ (9%) and Once those features are identified
choose up to three options from a ‘third-party funding (non-recourse) in given seats, there may be other
list of suggestions, with a free-text permissible in the jurisdiction’ (8%). factors taken into account by
‘other’ option. These adaptations reflect what respondents which influence their
‘Greater support for arbitration by were already identified as the choice of one seat over another.
local courts and judiciary’ was the systemic legal traits of a seat In particular, there seems to be
most selected adaptation (56%), considered to be most important a growing wish for seats to also
have the judicial and/or political
facility to adapt quickly to changing
user needs, such as the ability to
implement technological advances
to maintain procedural efficiency
and effectiveness (for example,
local courts being able to deal
remotely with arbitration-related
There is a growing wish for seats to also have the matters). The latter, coupled
judicial and/or political facility to adapt quickly to with the possibility of awards
being signed electronically, are
changing user needs, such as the ability to implement issues that were given relatively
technological advances to maintain procedural little attention pre-pandemic.
Presumably, in light of recent
efficiency and effectiveness experience, users are placing more
importance on them now.
8 White & CaseWhich ad hoc procedural rules
are most used?
We asked respondents which ad
hoc procedural regimes they had
used most frequently in the past
five years. We included a list of
choices and a free-text box choice Interviewees valued the procedural flexibility offered
(‘other’), allowing respondents to
select up to three options. Pre-set
by ad hoc arbitration, which they felt enhanced party
choices included: ‘bespoke regimes autonomy compared to institutional arbitration
agreed by the parties’, ‘CPR Non-
Administered Arbitration Rules’,
‘Grain and Feed Trade Association
Arbitration Rules’,12 ‘London
Maritime Arbitrators’ Association in both commercial and investment Which arbitral institutions are
(LMAA) Terms’, ‘national arbitration treaty arbitration. most preferred?
laws’, ‘The Construction Industry Interviewees valued the We asked respondents to indicate
Model Arbitration Rules’, and
‘UNCITRAL Arbitration Rules’. 32% procedural flexibility offered by
ad hoc arbitration, which they
their preferred arbitral institutions,
allowing them to specify a maximum
The UNCITRAL Arbitration Rules, felt enhanced party autonomy of five different entries (in free-text
chosen by three-quarters (76%) of compared to institutional arbitration. form). This generated a list of more
respondents, were a clear winner.
They were followed by ‘national
76% This emphasis on party autonomy
throughout the arbitral process was
than 50 institutions across the
globe—a strong indication that while
arbitration laws’ (28%), ‘bespoke The UNCITRAL a recurring theme in interviews. certain institutions are chosen time
regimes agreed by the parties’ Arbitration Rules A number of interviewees also and again, users also appreciate a
were amongst the
(26%) and the LMAA Terms (13%). most frequently highlighted the popularity of ad hoc wide degree of choice.
Several interviewees credited used ad hoc arbitration for resolving disputes Of all the nominations, the ICC
regimes by 76%
the success of the UNCITRAL of respondents in sectors such as the maritime stands out as the most preferred
Arbitration Rules to these rules industry and commodity markets. institution (57%), followed by SIAC
being carefully designed and As one interviewee specialising (49%), HKIAC (44%) and the LCIA
widely tested. Others remarked in maritime disputes explained, (39%). These top-four choices have
on their prevalence and level of parties want ‘a dispute resolution been the market leaders for well
global recognition. This may be mechanism that was developed by over a decade.13 This year, CIETAC
because the UNCITRAL Arbitration their sector, for their sector, and (17%) also made it to the top-five
Rules are used across all sectors conducted by practitioners from most preferred choices for the first
their sector’. time. The other institutions in the
Chart 5: If you or your organisation have selected ad hoc arbitration over the past five years,
which of the following procedural regimes were used the most?
26%
28%
76%
13%
8%
5%
4%
4%
UNCITRAL Arbitration Rules Other
National arbitration laws The Construction Industry Model Arbitration Rules
Bespoke regimes agreed by the parties CPR Non-Administered Arbitration Rules
London Maritime Arbitrators Association Terms Grain and Feed Trade Association Arbitration Rules
Respondents were able to select up to three options
2021 International Arbitration Survey 9Chart 6: What are your or your organisation’s most preferred arbitral institutions?
57%
49%
44%
39%
17%
11%
7% 6% 5% 5%
ICC SIAC HKIAC LCIA CIETAC ICSID SCC ICDR PCA LMAA
Percentage of respondents who included the institution in their answer
global top ten were: ICSID (11%), discussed further at pp.11 – 12 which in its turn is also ranked
SCC (7%), ICDR (6%), PCA (5%) and below. Some interviewees also among the first-five choices in all
LMAA14 (5%). mentioned that their perception regions. The LCIA ranks second in
Our 2015 and 2018 surveys
highlighted a noticeable growth
32% of the quality and consistency of
institutional staff and counsel teams
all regions except for Asia-Pacific.
More regionally based variations
in the percentage of respondents can influence their opinion when can be noticed outside the top-five
selecting SIAC.15 This trend was considering institutions. While none ranks. ICSID and the PCA both
clearly confirmed in this survey, with
SIAC taking second place overall.
50+ of these considerations in and of
themselves displace the general
enjoyed a consistent showing,
appearing in the top-ten rankings
There was also a significant increase More than factors of reputation and recognition of all subgroups. Several other
50 arbitral
in the percentage of respondents institutions
of an institution, they suggest that institutions made it to the top ten
selecting HKIAC, which took across the globe there are multiple distinguishing either in all subgroups (e.g., the
third place.16 were mentioned features which influence the choice SCC) or in almost all subgroups
by respondents
The increases enjoyed by SIAC of one institution over another. (e.g., the LMAA18). There were also
and HKIAC may correlate with a a number of institutions that did
relative reduction in the percentages The regional response not make the top-ten list globally,
of the LCIA and the ICC. The LCIA, An analysis of the subgroups but that were ranked amongst the
although it remains amongst the based on the regions where top-ten most preferred institutions
most popular institutions, dropped respondents principally practise or in the regions in which they
to fourth place from second place in operate revealed that the top-three were based. These include, for
2018. The ICC’s overall percentage preferred institutions globally also example, VIAC and DIS in Europe,
dropped considerably from 77% in rank highly across most of these JAMS and the AAA/ICDR in North
2018 to 57% today. regions. The ICC ranks first in all America, DIAC in the Middle East
Interviews confirmed the principal regions except for Asia-Pacific, and the Lagos Court of Arbitration
drivers behind choice of institution where it is outranked by the SIAC, in Africa.19
include the general reputation of
the institution and the respondent’s
previous experience of that
institution.17 However, interviewees
revealed that in particular
circumstances they would widen
the list of institutions they might
consider. For example, depending
on the potential value of a given
The general reputation of the institution and the
dispute, practitioners reported that respondent’s previous experience of that institution are
they would be willing to consider
less well-known institutions offering
the principal drivers behind choice of arbitral institution
competitive fees. The depth and
breadth of the pool of arbitrators
that might be recommended by
an institution was also a factor
highlighted by interviewees, as
10 White & CaseThis macro-perspective reflects
the main factors that respondents
to our 2018 survey identified as
the ones that most determine
their preference for one institution
over another, namely the ‘general
Administrative/logistical support for virtual hearings reputation and recognition’ of
the institution, its ‘high level of
is the most important adaptation that would make other administration’ and users’ ‘previous
arbitral institutions more attractive experience of the institution’.20
These factors were more important
to users than specific aspects of
either the administration of cases by
the institutions or their respective
rules. The first choice for our current
What adaptations would make pool of arbitrators’ (32%) and survey (‘administrative/logistical
other institutions or arbitral rules ‘transparency of administrative support for virtual hearings’) is
more attractive to users? processes and decisions, such clearly an indication of an emerging
We asked respondents to indicate as selection of and challenges need of users due to the pandemic.
what adaptations would make to arbitrators’ (29%). Other The need for adaptation in response
other arbitral institutions or sets of options chosen by 25% to 20% of to changing circumstances is further
arbitration rules more attractive. A respondents included: ‘provision underlined by the fact that there
list of indicative choices was offered,
together with a free-text ‘other’
of expedited procedures’, ‘more
tailored procedures for complex and
38% was also a demand for rules to
include a ‘provision for arbitrators
option, from which respondents multi-party arbitrations’, ‘provision for of in-house to order both virtual and in-person
counsel would like
could choose up to three options. arbitrators to order both virtual and administrative/ hearings’ (23%).21
Some of the suggested adaptations in-person hearings’, ‘cost sanctions logistical support ‘Commitment to a more
for virtual
related to provisions in arbitral rules for delay by arbitrators’, ‘rules giving hearings
diverse pool of arbitrators’ (32%)
(whether used in administered extensive case management powers ranked second across the whole
or non-administered arbitrations). to arbitrators including robust respondent pool, but was the
Other suggested adaptations sanctions in relation to the behaviour joint highest ranked choice of
concerned the service offered by of parties and counsel’, and the in-house counsel subgroup.
arbitral institutions and appointing or ‘provision of secure electronic filing This shows the importance of
administering authorities. and document-sharing platforms’. institutions or appointing authorities
Noticeably, but perhaps In our 2018 survey, when we in providing a more diverse pool of
unsurprisingly given the pandemic, asked respondents to indicate the proficient arbitrators.22
the top-ranked choice (38%) was four most important reasons why Interestingly, several
‘administrative/logistical support they prefer given institutions, the interviewees highlighted that,
for virtual hearings’. It was followed results showcased a tendency for depending on the nature and the
by ‘commitment to a more diverse users to adopt a ‘macro-perspective’. value of the dispute, they might be
Chart 7: Top-five most preferred arbitral institutions by region
87%
79% 79% 81%
70%
64% 65% 63%
57% 58%
51%
46% 47%
39% 40%
37%
30% 30% 31%
25% 27% 27% 27%
21% 23% 23%
17% 15% 14%
14%
Africa Asia-Pacific Caribbean/ Europe Middle East North America
Latin America
ICC LCIA SIAC ICSID HKIAC CIETAC ICDR
Percentage of respondents who included the institution in their answer
2021 International Arbitration Survey 11Chart 8: What adaptations would make other institutions or rules more attractive to users?
Administrative/Logistical support for virtual hearings 38%
Commitment to a more diverse pool of arbitrators 32%
Transparency of administrative processes and decisions, 29%
such as selection of and challenges to arbitrators
Provision of expedited procedures 25%
More tailored procedures for complex and multi-party arbitrations 24%
Provision for arbitrators to order both virtual and in-person hearings 23%
Cost sanctions for delay by arbitrators 21%
Rules giving extensive case management powers to arbitrators including robust
21%
sanctions in relation to the behaviour of parties and counsel
Provision of secure electronic filing and document-sharing platforms 20%
Provision for summary determination/dismissal of unmeritorious claims 18%
Provision of emergency arbitrator facility 13%
Other 6%
Respondents were able to select up to three options
willing to use less widely known referred to instances of arbitrators
institutions (such as institutions failing to adequately address
based in jurisdictions that are ‘guerrilla tactics’ by opposing
emerging as arbitration hubs) or
even new entrants to the market.
32% counsel and parties. It appears from
this that the real concern is not so
They explained that trusting in such much a lack of powers provided
institutions can be an effective for in arbitral rules, but a perceived The use of less
means of encouraging greater
diversity, particularly when those
32% reluctance by arbitrators to exercise
those powers.24 On a related note,
widely known
institutions may be in a position of in-house
counsel want
one interviewee emphasised the institutions or even
to suggest a different pool of
arbitrators. This could include
commitment
by institutions
role that institutions can play in
improving the quality of arbitrator
new entrants to
arbitrators who may not as yet enjoy to a more
diverse pool of
performance, especially in terms the market can be
high visibility globally, but who have
particular experience of a region,
arbitrators of procedural delay. This can be
achieved, the respondent opined, by
an effective means
applicable law or industry relevant more transparency as to arbitrators’ of encouraging
for a given dispute.
‘Cost sanctions for delay by
availability and making available data
such as the average time taken to
greater diversity,
arbitrators’ and ‘rules giving render awards. particularly when
extensive case management
powers to arbitrators including
Other interesting questions
concerned the nature and extent
those institutions can
robust sanctions in relation to of the services that respondents suggest a different
the behaviour of parties and would like administering entities
counsel’ were each selected by and institutions to offer. On one
pool of arbitrators
21% of respondents and reflect, hand, respondents have called
as expanded on in interviews, for more active support in the
the desire for faster arbitration practical conduct of arbitrations, institutions have become ‘too
proceedings and more flexibility. In such as ‘administrative/logistical prescriptive’. Interviewees cited
relation to the ability of arbitrators to support for virtual hearings’ and by way of example instances
sanction parties and their counsel, ‘provision of secure electronic where they considered arbitral
several respondents felt that filing and document sharing institutions to have adopted
arbitrators are still overly cautious platforms’. On the other hand, strong views on matters that are
when it comes to ‘due process several interviewees, many not clearly regulated under their
paranoia’.23 As one interviewee of whom practise as full-time rules, an approach which these
stressed, this ‘timid’ approach arbitrators, expressed their respondents considered to be
leaves clients with a negative dissatisfaction with the way in counterproductive to the flexibility
perception of arbitration. Others which, in their view, some arbitral of the arbitral proceedings.
12 White & CaseChart 9: If you were a party or counsel, which of the following procedural options would you be willing to
do without if this would make your arbitration cheaper or faster?
Unlimited length of written submissions 61%
Oral hearings on procedural issues 38%
Document production 27%
In-person hearings 25%
More than one round of written submissions 24%
Bifurcation 22%
Post-hearing briefs 21%
Early case management conferences 16%
Cross-examination 15%
Party-appointed experts 13%
Other 2%
Respondents were able to select up to three options
Making arbitrations cheaper and limits should also be set for arbitral ‘Oral hearings on procedural
faster: Which procedural options awards, particularly in the context of issues’ (38%) was the second
are we really ready to forgo? investor-state disputes. most popular option that
Time and cost are perennially
acknowledged as the biggest
In a related vein, 21% of the
respondents would be willing to
32% respondents would be willing to
forgo. Respondents pointed out
concerns for arbitration users.25 do without ‘post-hearing briefs’. that, as procedural issues can
60%
We asked respondents to assume Interviewees revealed a more arise frequently throughout an
the role of a party or counsel and nuanced view of post-hearing arbitration, parties and tribunals
consider, in that context, which of briefs: some explained that they of arbitrators should prudently seek to avoid
a list of different procedural options do find post-hearing briefs useful, and the additional expense and time
they would be willing to forgo if this
would make their arbitration cheaper
especially when an oral closing has
not taken place during a hearing,
51% commitment that oral hearings on
procedural issues entail. Fewer
or faster. Respondents could select but that they work best where the of in-house respondents would be willing to
up to three options from the list, in tribunal provides some guidance counsel favour forgo ‘early case management
limiting the
no order of preference. as to content and imposes page length of written conferences’ (16%). Interviewees
With a clear margin of more limits. Indeed, imposing page submissions explained that, in many instances,
than 20% over other options, the limits on post-hearing briefs was early case management conferences
first choice was ‘unlimited length almost unanimously deemed are useful for resolving procedural
of written submissions’ (61%). by interviewees as a means to issues early on.
Interviewees agreed that this was save time and costs. As several ‘Document production’ (27%) was
the option that they would feel respondents noted, counsel should also a popular option to sacrifice.
most comfortable foregoing, as they resist the temptation to restate Many interviewees emphasised that
saw it as a ‘safe’ choice regardless their entire case again when document production can be a very
of the type or profile of the dispute preparing their post-hearing briefs. costly and time-consuming process.
at stake. Interviewees further It was suggested that post-hearing The time and cost involved is often
explained that, in their experience, briefs should not simply function disproportionate to the benefits that
it has become common practice
for parties to submit unnecessarily
as an executive summary of the
party’s previous submissions, but 32% a party might hope to derive from
the exercise. Others pointed out
long briefs. Imposition of page should instead contain reflections that although document production
limits was thought most appropriate on what has come out of a hearing makes sense in some cases, in
for certain types of submissions,
predominantly post-hearing briefs
and offer a roadmap to the tribunal
for writing the award. On a similar 31% others, it can be tactically misused.
Several interviewees also underlined
(as discussed further below). theme of streamlining written of in-house the different expectations that
Interestingly, some interviewees arguments, respondents also counsel are parties from different legal traditions
willing to exclude
felt it is not only the parties who indicated a willingness to relinquish document have when it comes to document
should curb their tendencies in ‘more than one round of written production production. While it might be
this regard, suggesting that page submissions’ (24%). expected that counsel from civil law
2021 International Arbitration Survey 13Respondents stressed the importance of flexibility as a means
to aid efficiency and reduce costs
traditions would be more inclined to ‘Party-appointed experts’ was
do without document production, it also chosen by a small percentage
is interesting that many interviewees (13%). There was a split amongst
from common law backgrounds
also expressed a willingness to limit
32% interviewees performing different
roles. Some arbitrators took the
document production. view that party-appointed experts
40%
A quarter of respondents (25%) are sometimes used as ‘hired guns’
included ‘in-person hearings’ as by parties, which is undesirable.
a feature they would be prepared On the other hand, several counsel
to forgo. This seems to reflect, to of arbitrators mentioned the also undesirable
would forgo oral
some extent, the increased level hearings on risk of a tribunal-appointed expert
of comfort users have acquired procedural issues becoming a de facto fourth arbitrator.
with remote hearings in recent A recurring theme in interviews
times, and particularly as a result was the sense that arbitration
of logistical difficulties for in-person is becoming increasingly over-
hearings resulting from the COVID-19 formalistic, at the expense of
pandemic.26 However, interviews efficiency. Interestingly, this view was
revealed that respondents were more articulated by arbitrators themselves;
likely to elect this option for hearings as one arbitrator put it, they have
on procedural issues, rather than seen the development over the years
substantive hearings.27 of what they referred to as ‘a kind
A slightly less frequently chosen of arbitration-formality’ which, taken
option was ‘bifurcation’, which too far, can amount to ‘depriving
less than a quarter of respondents the parties of the efficiencies they
(22%) would elect to eliminate. hoped for when they signed the
Interviewees felt that whether arbitration clause’. One example of
bifurcation is a means to enhance this ‘arbitration-formality’ that several
efficiency or, conversely, whether respondents warned against is an
it leads to more costs and delays excessive tendency to ‘mimic court
depends significantly on the specific processes’. Respondents stressed
circumstances of the case. As such, the importance of flexibility as a
they were less inclined to agree to means to aid efficiency and reduce
exclude the possibility of bifurcation costs by tailoring procedures to the
from the outset. needs of the dispute in question,
Only a relatively small percentage rather than adopting rigid or
of respondents (15%) indicated excessively formalistic procedures.
that they would be willing to do As one respondent pithily noted,
without ‘cross-examination’. In arbitration should stop ‘taking itself
interviews, respondents expressed so seriously’! Closer monitoring
a preference for a more nuanced of costs may also encourage
approach to this—for example, they greater efficiency—one respondent
would be more amenable to forgo suggested that institutions should
cross-examination in cases with less introduce costs budgeting rules
complex factual backgrounds and to help parties and their funders
in relation to ‘non-key’ witnesses. monitor and plan for their potential
Some respondents thought that a costs exposure.
user’s legal culture may influence
their view, suggesting that civil
lawyers might be more willing
to forgo cross-examination in
certain circumstances.
14 White & CaseDiversity on arbitral tribunals:
What’s the prognosis?
The many faces of diversity: How
much progress has been made?
Few, if any, would disagree Summary
that promoting diversity at all
levels, including in the practice 34% More than half of respondents agree that progress has been
of international arbitration, is a made in terms of gender diversity on arbitral tribunals over the
positive thing. Calls for greater past three years. However, less than a third of respondents
diversity, especially in relation to of respondents believe there has been progress in respect of geographic, age,
the appointment of arbitrators, disagree that cultural and, particularly, ethnic diversity.
have been prevalent for some progress has been
made in recent
time in the international arbitration years in relation to Respondents are divided as to whether there is any connection
community. The extent of progress ethnic diversity between diversity on a tribunal and their perception of the
towards this goal is a matter of arbitrators’ independence and impartiality. Just over half of
debate. Respondents were therefore the respondents (56%) stated that diversity across an arbitral
asked whether, and to what extent, tribunal has a positive effect on their perception of the arbitrators’
they agreed or disagreed with independence and impartiality, but more than one third (37%)
the proposition that progress has took a neutral view. Others consider the enquiry redundant,
been made in the past five years on the basis that the call for more diversity does not require
with regard to various aspects of further justification.
diversity (i.e., gender, geography,
age, culture and ethnicity) in terms 59% of respondents continue to emphasise the role of appointing
of arbitral appointments. authorities and arbitral institutions in promoting diversity,
Very few respondents expressed including through the adoption of express policies of suggesting
either strong agreement or and appointing diverse candidates as arbitrators. However,
disagreement with the central the significance of the role of counsel is highlighted by about
proposition in relation to any of half of respondents, who included ‘commitment by counsel to
the five listed aspects of diversity. suggesting diverse lists of arbitrators to clients’ amongst their
While it is encouraging that the answers. In-house counsel also bear the onus of encouraging
majority of respondents (61%) diversity through their choice of arbitrators.
agreed that some progress has
been made in relation to gender Many respondents feel that opportunities to increase the visibility
diversity, this contrasts sharply of diverse candidates should be encouraged through initiatives
with the position for the other such as ‘education and promotion of arbitration in jurisdictions
featured aspects of diversity. with less developed international arbitration networks’ (38%),
In relation to geographic, age, ‘more mentorship programmes for less experienced arbitration
cultural and ethnic diversity, practitioners’ (36%) and ‘speaking opportunities at conferences
less than a third of respondents for less experienced and more diverse members of the arbitration
positively agreed in each case that community’ (25%). Building visibility is particularly important
progress has been made in recent in light of the perception that users prefer arbitrator candidates
years. Finally, for all aspects of about whom they have some knowledge or with whom they have
diversity, a significant percentage previous experience.
of respondents (ranging from 21%
to 35%) took a neutral stance, i.e., The general consensus amongst respondents is that caution should
they neither agreed nor disagreed be exercised when exploring whether adaptations in arbitral practice
that progress has or has not experienced during the COVID-19 pandemic may have an impact
been made. on promotion of diversity objectives, as it can go both ways. Virtual
Perhaps most revealing of all, events, meetings and hearings may facilitate participation by more
these findings almost mirror the diverse contributors, but this may be hindered by unequal access to
results for the same question technology and the challenges of building relationships remotely.
posed in our 2018 survey.28 Despite
the increased amount of focus
2021 International Arbitration Survey 15You can also read
