2015 | Noviembre 12
The 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, is the fifth International arbitration survey conducted by the School of International Arbitration, Queen Mary, University of London (QMUL), a survey sponsored by White & Case.
An online questionnaire of 80 questions was completed by 763 respondents between 11 March 2015 and 1 June 2015. The survey sought the views of a wide variety of stakeholders in international arbitration. 70% of respondents (and 81% of the organizations they represent or with which they are connected) have been involved in more than five international arbitrations over the past five years. The respondent group consisted of academics (4%), arbitral institutions (staff) (2%), arbitrators (11%), “arbitrator and counsel in equal proportion” (12%), expert witnesses (2%), in-house counsel (8%) and private practitioners (49%). 12% were categorized as “other”.
Views on international arbitration
Ninety per cent of respondents indicate that international arbitration is their preferred dispute resolution mechanism, either as a stand-alone method (56%) or together with other forms of ADR (34%).
“Enforceability of awards” is seen as arbitration’s most valuable characteristic, followed by “avoiding specific legal systems,” “flexibility” and “selection of arbitrators”.
“Cost” is seen as arbitration’s worst feature, followed by “lack of effective sanctions during the arbitral process”, “lack of insight into arbitrators’ efficiency” and “lack of speed”.
The majority of respondents do not favor an appeal mechanism on the merits in either commercial or investment treaty arbitration.
A growing concern in international arbitration is a perceived reluctance by tribunals to act decisively in certain situations for fear of the award being challenged on the basis of a party not having had the chance to present its case fully (“due process paranoia”).
Preferred and improved seats
The five most preferred and widely used seats are London, Paris, Hong Kong, Singapore and Geneva.
The primary factor driving the selection of a seat is its reputation and recognition.
Respondents’ preferences for certain seats are predominantly based on their appraisal of the seat’s established formal legal infrastructure: the neutrality and impartiality of the legal system; the national arbitration law; and its track record for enforcing agreements to arbitrate and arbitral awards.
Respondents expressed the view that the most improved arbitral seat (taken over the past five years) is Singapore, followed by Hong Kong.
Preferred and improved institutions
The five most preferred arbitral institutions are the ICC, LCIA, HKIAC, SIAC and SCC.
Respondents’ preferences for certain institutions are predominantly based on an assessment of the quality of their administration and their level of ‘internationalism’. Institution-specific distinguishing features are considered to be less important.
An institution’s reputation and recognition is essential to its commercial appeal. Respondents will select an institution because of its reputation and their previous experiences of that institution.
Respondents expressed the view that the most improved arbitral institution (taken over the past five years) is the HKIAC, followed by the SIAC, ICC and LCIA.
Respondents feel that arbitral institutions could contribute to the improvement of international arbitration by publishing data not only on the average length of their cases, but also on the time taken by individual arbitrators to issue awards. Respondents also welcome increased transparency in institutional decision-making on the appointment of, and challenges to, arbitrators.
Reducing time and cost
The procedural innovation perceived as most effective at controlling time and cost in international arbitration is a requirement for tribunals to commit to a schedule for deliberations and delivery of final awards.
Ninety-two percent of respondents favor inclusion of simplified procedures in institutional rules for claims under a certain value: 33% would have this as a mandatory feature and 59% as an optional feature.
Few respondents have experience with emergency arbitrators and some expressed concerns about the enforceability of emergency arbitrator decisions. 46% of respondents would, at present, look to domestic courts for urgent relief before the constitution of the tribunal, versus 29% who would opt for an emergency arbitrator. Nonetheless, 93% favor the inclusion of emergency arbitrator provisions in institutional rules.
Respondents believe that arbitration counsel could be better at working together with opposing counsel to narrow issues and limit document production, encouraging settlement (including the use of mediation) during an arbitration, and not ‘overlawyering’.
When arbitration and mediation are used in conjunction, it appears that a minimal overlap between the two processes is preferred.
It is inconclusive what effect conventions on enforcement of mediation agreements and settlement agreements resulting from mediations might have in practice, particularly in terms of encouraging the use of mediation.
Soft law and guidelines
Respondents generally have a positive perception of guidelines and soft law instruments in international arbitration. These instruments are seen to supplement existing rules and laws, and to provide guidance where little or none exists.
Seventy percent of respondents are of the opinion that there is currently an adequate amount of regulation in international arbitration.
Of various specific instruments put to respondents, the IBA Rules on the Taking of Evidence and the IBA Guidelines on Conflicts of Interest were the most widely known, the most frequently used and the most highly rated.
Role and regulation of specific actors
A clear majority of respondents think that tribunal secretaries (68%) and third party funding (71%) are areas which require regulation.
A small majority of respondents (55%) think that the conduct of arbitrators requires more regulation.
Tribunal secretaries are widely used in international arbitration: 82% of respondents have either used their services or have seen them used. Most respondents (72%) believe that arbitral institutions should offer the services of tribunal secretaries. A vast majority do not consider it appropriate for tribunal secretaries to conduct substantive or merits-related tasks.
Respondents are generally of the opinion that it should be mandatory in international arbitration for claimants to disclose any use of third party funding and the identity of the funders involved, but not the full terms of any funding agreement.
Source: Queen Mary University of London; White & Case
José Antonio García Álvaro | ARyME
Encuestas | Arbitraje
REINO UNIDO | UNITED KINGDOM
2015 International Arbitration Survey: Improvements and Innovations in International Arbitration [Queen Mary University of London (QMUL) in partnership with White & Case]