International arbitration has evolved greatly in the past few decades on a major scale and numerous ways.
In this article, we will be considering the results from a survey conducted to measure and ascertain the effects of this evolution thus far.
Let’s begin.
The Status Quo of International arbitration
Here, we will be looking at the practices and processes associated with international arbitration up to present times.
97% of the participants in the survey indicated that international arbitration was their preferred method of resolving disputes. 48% of them preferred it by itself, while 49% of them preferred it when it was used with other forms of dispute resolution methods.
The greatest attraction of international arbitration for many of the survey participants was its enforceability globally. Second to this was the avoidance of national courts, followed by flexibility and then, party autonomy (that is, the ability of the disputing parties to choose their arbitrators and the arbitration process they would follow.)
Many of the survey participants also highlighted cost as one of the prominent downsides of international arbitration, followed by a lack of clear rules to guide the arbitrary process and its lack of power with regards to third parties. Plus the unusually long time that some arbitration procedures can sometimes take.
Almost all the respondents to the survey recommended the use of arbitration in the resolving disputes about cross-border partnerships and collaboration.
The Evolution of Arbitration over Time
We will consider this under the various aspects of arbitration. These are:
Arbitral seats
A majority of the respondents preferred the London, Singapore, Hong Kong, Paris and Geneva arbitral seats. So, nothing much has changed in this context.
These preferences were made due to the historic dominance of these institutions, that is, these institutions both have a good reputation and are recognized globally.
Also, the respondents to this survey made these choices due to the institutions’ neutrality, their organized method of operations, the impartial nature of the legal system, the sovereign laws of respective countries with regards to arbitration and the institutions’ proven history in the enforcement of arbitral awards as well as in the facilitating of arbitration processes themselves.
Arbitral institutions
The ICC, HKIAC, LCIA, SCC and SIAC remain the most preferred arbitral institutions so far, as per feedback from respondents. These choices are still based on the global recognition and reputation of these institutions. Also, the institutions’ previous records in conducting arbitration tilted the scales in their direction.
The choice of arbitrators
Participants in the survey were not sure of the importance of diversity when it came to choosing arbitrators. They weren’t sure if it affected the decision making and the overall effectiveness of the arbitration process.
Almost half of the correspondents agreed that the arbitration community has come quite some ways in the area of gender diversity- with the appointment of more female arbitrators, especially in the last 4 years. Less than 35% of the respondents believed that indeed, progress has been made in such areas as age, ethnic diversity and geographical locations.
Arbitral institutions play a major role in the promotion of diversity, which can be affected by their choice of arbitrators. They are closely followed by the disputing parties who are encouraged to do the same when choosing their in-house counsel as well as for external counsel.
To further propel the movement of diversity in arbitration, stakeholders across all strata, who are involved in arbitration should broaden their knowledge in the field, engage in diversity when choosing arbitrators, and sensitize as well as provide education on the need for and the benefits of diversity in arbitration.
Also, there should be provisions for professional training and education in the less developed segments of arbitration to facilitate a more rich and diversified pool of arbitrators available.
Back to the survey, almost two-thirds of the participants said that they had access to adequate information enough to make an informed decision in the choice of an arbitrator. This information was either gotten from testimonials, public information or colleagues in the arbitral community.
To better decide to choose an arbitrator, the participants stated that a perusal of the choice arbitrator’s previous awards would come in handy. This, they said would enable them to know the arbitrator’s approach to the arbitral process as well as their engagement – whether they were available to take up a case.
Most respondents also said that they would like to give a review about the arbitral process, as well as the arbitrator(s) when the whole procedure was over and that they would prefer doing this through the arbitral institution to which they subscribed.
Third-party funding
Most (over 95%) of the respondents were aware of third party funding and had a positive view of it, especially those who had had an experience with it.
85% of the participants indicated an awareness of other sources of funding and from this percentage, a majority had a neutral or positive view of it, with regards to their experiences; with those who have experienced it being positive about it…
52% of the respondents were of a positive opinion that parties who are recipients of external funding should be able to recover some unexpected fees or success fees in their favor as part of their cost order. 48% held a contrary opinion to this.
Efficiency in arbitration
Following “due process” continues to be another of the down points for the arbitration process. This is because the process often tends to be slow-paced and vague in its coordination.
This is usually due to a lack of a solid set of rules to abide by, except deliberately agreed upon by the parties and their arbitrators (party autonomy). Also, the institutions tend to slow things down under the guise of following arbitrary procedures. This ought not to be. The arbitral process should be as fast and efficient as possible.
Respondents held a positive view that technology would tilt the scales in the advancement of international arbitration and consequently its proceedings.
Confidentiality in arbitration
87% of the survey participants held confidentiality in arbitration on a high pedestal, as compared with the practice in national courts, and they believe that this should be an integrated part of arbitration and should not an optional feature. This will serve to secure the interests of the parties involved.
The Future of Arbitration
The respondents of this survey had a positive view that international arbitration was set to increase in the energy sector, in banking and fin nave, in the technology sector as well as in the construction sector.
Two-thirds of them held the opinion that there would be a higher demand for the use of international arbitration in the resolution of investor-state disputes.
As regards technology, there is already an increased application of it in arbitration. Yet a vast majority of the survey participants would prefer an even increased usage in arbitration procedures, particularly in areas such as cloud storage, video conferencing, AI etc.
77% of the respondents expressed satisfaction with the existing arbitral rules, proclaiming it to be “just right” while a small percentage of them (5%), believed that the rules were too prescriptive.
Respondents also proposed that arbitral rules should make provisions for the conduct of arbitrators during the arbitrary process, in terms of efficiency, impartiality and independence.
Respondents – a majority of them – believe that arbitrary institutions are in the best place to effect changes concerning international arbitration and its evolution.
More than half of the respondents conferred that an increase in efficiency, as well as the right application of technology, were the factors that will spur international arbitration on to greater evolution in the years to come.
Conclusion
From the above study, we can see the evolution of the arbitration process thus far, how it has progressed a bit from the status quo, as well as the possibilities that loom on the horizon.
At Rattsakuten, we stay current on the proceedings in the world of arbitration and are ever on a continuous quest to discover better ways to serve our clients. We do this to ensure that they have a smooth and effective arbitration process.
Want seasoned and experienced professionals as your arbitrators? Or do you need expert legal counsel concerning dispute resolution and arbitration? Do not hesitate to contact us now.
About Rattsakuten
Rattsakuten is a leading law firm focused on Commercial Arbitration and Dispute Resolution. Based in Sweden, Rattsakuten handles dispute resolution and Arbitration matters before the SCC (Swedish Chamber of Commerce), ICC, HKIAC and several other Arbitration tribunals.