THE EVOLUTION OF INTERNATIONAL ARBITRATION
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1 2018 International Arbitration Survey THE EVOLUTION OF INTERNATIONAL ARBITRATION In partnership with: Contact: Adrian Hodis (White & Case Research Fellow in International Arbitration)
2 Introduction This is the eighth major empirical International Arbitration Survey conducted by the School of International Arbitration, Queen Mary University of London (QMUL). We are pleased once again to welcome White & Case LLP as our project partner. The Survey considers the evolution of international arbitration as a system: its past, present and future. The Survey aims to research the sentiment of the international arbitration community as a whole, and not just the views of any particular group within it. All stakeholders therefore are invited to share their perspectives, regardless of whether their experience with international arbitration is based on activities as a private practitioner, in-house counsel, arbitrator, academic, or through work for an arbitral institution. We appreciate that not all questions are relevant to all respondents. Please answer as many questions as you can, and feel free to leave blank those you cannot. The questionnaire should take approximately 20 minutes to complete. In addition to the questionnaire phase of the Survey, we will seek to conduct individual interviews with a selection of willing respondents from October to December If you would prefer solely to provide an interview rather than complete the questionnaire first, please contact Adrian Hodis. Your participation in this questionnaire will be kept fully confidential. Your name and the name of your organisation will not appear on any materials connected with the Survey. The information gathered by the questionnaire will be stored securely by QMUL and used only for the purposes of the current Survey and any subsequent surveys. The closing date for responses is 8 December Results will be published in Spring The questionnaire can be completed online, or in PDF format and sent to Adrian Hodis. Links to both versions are available on the following website: We are grateful for your participation and look forward to the Survey s outcomes. Since the results will benefit from a wide pool of respondents, please feel free to forward this questionnaire to any other potentially interested respondents. Further information can be obtained from: Adrian Hodis White & Case Research Fellow in International Arbitration School of International Arbitration Centre for Commercial Law Studies Queen Mary, University of London Lincoln's Inn Fields, London WC2A 3JB, UK Tel: Fax: Website: a.hodis@qmul.ac.uk
3 Instructions Please answer as many questions as you can, leaving blank any that you are not able to answer. Answering the questions does not require any data collection or research. You should be able to answer all questions based on your knowledge only. Please note that if your company is a subsidiary or branch of a larger group, you should only answer for the subsidiary/branch over which you have responsibility, rather than for the whole group. All questions are concerned with international disputes only. For the purposes of the survey this means: disputes in which the parties, or their controlling shareholders, are from different jurisdictions, or disputes where the parties are from the same jurisdiction, but the dispute involves an international (i.e. not purely domestic) element. When a question states that it concerns a specific period of time (e.g. the past 5 years ), and you only have an answer for a shorter period, please give an answer for that shorter period. Part I: Information About You and Your Organisation Q1: Your name and title (e.g. Mr, Ms, Dr): Q2: address: Q3: Organisation name: Q4: Your primary role: Q5: In-house counsel Private practitioner Arbitrator Arbitrator and counsel (in approximately equal proportion) Other Please specify your position: 1
4 Q6: Q7: Q8: Q9: In which region(s) do you principally practice or operate? (Select all that apply) Africa Asia Central or Eastern Europe Latin America North America Middle East Oceania Western Europe Primary industry in which your organisation operates: Legal Banking/Financial Services Construction/Engineering/ Infrastructure Energy Hospitality Industrial/Manufacturing Insurance Media/Entertainment Mining Pharmaceuticals Real Estate Retail/Consumer Shipping/Maritime Telecommunications/IT Transportation Over the past 5 years, approximately how many international arbitrations have you personally been involved in? Over the past 5 years, approximately how many international arbitrations has your organisation been involved in?
5 Part II: Choices in International Arbitration General experience of arbitration Q10: Q11: Q12: What is your preferred method of resolving cross-border disputes? (For the purposes of this question, ADR would include, for example, mediation, conciliation, adjudication and dispute boards but NOT litigation or arbitration.) (Select one option) Cross-border litigation Cross-border litigation together with ADR International arbitration International arbitration together with ADR In your view, what are the three most valuable characteristics of international arbitration? (Select three options) Avoiding specific legal systems/national courts Confidentiality and privacy Cost Enforceability of awards Finality Flexibility Neutrality Ability of parties to select arbitrators Speed In your view, what are the three worst characteristics of international arbitration? (Select three options) Cost Lack of appeal mechanism on the merits Lack of effective sanctions during the arbitral process Lack of flexibility Lack of insight into arbitrators efficiency Lack of insight into institutions efficiency Lack of insight into how institutions select and appoint arbitrators Lack of speed Lack of power in relation to third parties National court intervention 3
6 Q13: Are you likely to choose or recommend international arbitration to resolve cross-border disputes in the future? Yes No Choice of arbitral seat Q14: Q15: What are your or your organisation s most preferred seats? (Please specify up to five seats, in no order of preference) Specify: Specify: Specify: Specify: Specify: Please indicate in the table below the four most important reasons for your preference for certain seats, ranking only those four selected reasons in order of importance (1 being the most important and 4 the least important): 1 Availability of specialist lawyers at the seat Availability of quality arbitrators who are familiar with the seat Cost Familiarity with local culture Efficiency of local court proceedings General reputation and recognition of the seat Language Location and quality of hearing facilities Location of people (e.g. your organisation or client s employees, legal and other advisors, experts, accountants, secretaries and hearing staff) Location of the arbitral institution chosen for the arbitration National arbitration law Neutrality and impartiality of the local legal system Track record in enforcing agreements to arbitrate and arbitral awards
7 Q16: What impact do you think Brexit will have on the use of London as a seat? (1 being the most negative impact, 3 being no impact at all, and 5 the most positive impact): Negative Q17: Q18: Positive What are the principal reasons for your answer? (Select up to three options) Other arbitral seats will appear more attractive by comparison. The legislative framework applicable to arbitration and the English courts will continue to be supportive of arbitration. London s reputation as a commercial centre will diminish. The UK will continue to be a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The English legal system will continue to be perceived as neutral and impartial. There are uncertainties over the impact of Brexit on English law and the English legal system. English substantive law will continue to be a popular choice for international contracts. London will be less attractive as a venue for hearings. Specialist lawyers and quality arbitrators will still be available in London. Arbitral awards made in London will become harder to enforce outside the jurisdiction. The impact of EU law and legal systems will be limited. There will be reduced availability of specialist lawyers and quality arbitrators in London. London will still be a leading commercial centre. If you think Brexit will have a negative impact on the use of London as a seat, which seat(s) do you think will benefit most from this? 5
8 Choice of arbitral institution and rules Q19: Q20: What are your or your organisation s most preferred institutions? (Please specify up to five institutions, in no order of preference) specify: specify: specify: specify: specify: Please indicate in the table below the four most important reasons for your preference for certain institutions, ranking only those four selected reasons in order of importance (1 being the most important and 4 the least important): 1 Access to wide pool of high quality arbitrators Early procedural management conference Expertise in certain types of case General reputation and recognition of the institution Free choice of arbitrators (i.e. no exclusive institutional list) Global presence/ability to administer arbitrations worldwide High level of administration (including efficiency, proactiveness, facilities, quality of staff) Method of remunerating arbitrators (ad valorem) Method of remunerating arbitrators (per hour) Neutrality/'internationalism' Overall cost of service Previous experience of the institution Regional presence/knowledge Scrutiny of award by institution Transparency of arbitrator challenge decisions
9 Q21: If you or your organisation have selected ad hoc arbitration over the past 5 years, which of the following procedural regimes have you used the most? (Select up to three options) UNCITRAL Arbitration Rules Non-Administered Arbitration Rules of the CPR London Maritime Arbitration Association Terms The Construction Industry Model Arbitration Rules Rules of other specialist industry bodies (specify): National arbitration laws Bespoke regimes agreed by the parties Arbitrators Q22: Who is best placed to ensure greater diversity across arbitral tribunals? Please rank the following options from 1 to 4 (1 being the option which can have the most impact and 4 the least impact): 1st 2nd 3rd 4th Arbitral institutions External counsel The parties (including their in-house counsel) Co-arbitrators (if asked to jointly select the presiding arbitrator) Q23: What effect do you think diversity across a panel of arbitrators has on the overall quality of the tribunal s decision-making? (Select one option) Significant improvement in quality Some improvement in quality No appreciable difference in quality Can reduce quality Depends on the particularities of the dispute in question Irrelevant, because diversity is inherently valuable 7
10 Q24: Do you agree with the statement that progress has been made in the following aspects of diversity on arbitral tribunals over the past five years? (Select one answer per row) Strongly disagree Disagree Neither agree nor disagree Agree Strongly agree Age diversity Cultural diversity Ethnic diversity Gender diversity Geographic diversity Q25: What more can be done to encourage diversity? Q26: Where do you find your information about arbitrators? (Select all that apply) Q27: From internal colleagues From external counsel Publicly available information (e.g. industry reviews, legal directories and other databases or review tools) Arbitral institutions Arbitrator s own online profile Word of mouth Other: Do you have access to enough information to make an informed choice about the appointment of arbitrators? (If you are in-house counsel, assume you do not have information provided to you by external counsel) Yes No 8
11 Q28: What information would you like to have about arbitrators that you currently do not have, or do not have enough of? Q29: Would you like to be able to provide an assessment of arbitrators at the end of a dispute? Q30: Yes No If yes, how? (Select all that apply) Report to arbitrators Report to arbitral institution (if any) Publicly available reviews Funding, Efficiency and Confidentiality Q31: Q32: How familiar are you with third party funding (non-recourse, i.e. linked to the outcome of the dispute) of parties in the context of international arbitration? (Select one option) Have used it in practice Have seen it used in practice Aware of it but have not seen it used in practice Not aware of it Please indicate your perception of such third party funding of claimants in international arbitration (1 being the least positive level of perception and 5 the most): Negative 4 5 Positive 9
12 Q33: Q34: How familiar are you with other types of external funding (e.g. liability insurance, before the event insurance, after the event insurance) of parties in the context of international arbitration? (Select one option) Have used it in practice Have seen it used in practice Aware of it but have not seen it used in practice Not aware of it Please indicate your perception of such types of external funding of claimants in international arbitration (1 being the least positive level of perception and 5 the most): Negative Q35: Q36: Q37: Positive If a successful party is in receipt of external funding from a non-party to the arbitration (e.g. non-recourse third party funding, insurance), should they be able to recover any contingency or success fees as part of a costs order in their favour? Yes No How familiar are you with the use of sealed offers in international arbitration? (Select one option) Have used them in practice Have seen them used in practice Aware of them but have not seen them used in practice Not aware of them How effective do you think the use of sealed offers is in encouraging settlements (1 being very effective and 5 being not effective at all)? Negative Q38: 4 5 Positive What one change would you recommend to make arbitral proceedings more efficient? 10
13 Q39: Q40: Q41: Q42: How important is confidentiality in international commercial arbitration? (Select one option) Very important Quite important Somewhat important Not very important Not important at all Depends on circumstances Should confidentiality be an opt-in or an opt-out feature? Opt-in Opt-out In your experience, have measures been put in place to protect the confidentiality and security of electronic or electronically submitted data where it is agreed that information technology will be used in an international arbitration? (Select one option) Sometimes Often Never Who is best placed to ensure the confidentiality and security of electronic or electronically submitted data in international arbitration? (Select one option) Parties and their counsel Tribunal Arbitral institution (if any) The Future Q43: In your view, how likely is it that the use of international arbitration for resolving crossborder disputes will increase in relation to the following industries and sectors? (Select one answer per row) Likely Banking and finance Construction/Infrastructure Energy (including Oil & Gas) Technology 11 Unlikely No view
14 Q44: Which of the following improvements and innovations would make international arbitration more suitable for resolving cross-border disputes in these industries and sectors? (Select all options that apply for each of the listed industries and sectors) Banking & finance Construction/ Infrastructure Energy (inc. Oil & Gas) Technology Expedited procedures for claims More industry/sector-specialised institutions arbitral More industry/sector-specialised arbitral rules Publicly available rosters of arbitrators with specialist industry/sector experience Summary determination procedures Wider and faster recourse to interim and conservatory measures Q45: Q46: In your view, will the use of international arbitration to resolve investor-state disputes increase in the future? Yes No How often have you used the following forms of information technology in an international arbitration? Never Rarely Sometimes Frequently Always Artificial intelligence (e.g. data analytics, technology assisted document review) Cloud-based storage (e.g. FTP sites, data rooms) Hearing room technologies multimedia presentations, real electronic transcripts) (e.g. time Videoconferencing Virtual hearing rooms Q47: Should the following forms of information technology be used more often in international arbitration? Yes Artificial intelligence (e.g. data analytics, technology assisted document review) Cloud-based storage (e.g. FTP sites, data rooms) Hearing room technologies (e.g. multimedia presentations, real time electronic transcripts) Videoconferencing Virtual hearing rooms 12 No
15 Q48: Q49: In general, how prescriptive are existing sets of arbitration rules (whether institutional or ad hoc) in terms of the guidance they offer on how to conduct proceedings? (Select one option) They are not prescriptive enough They are too prescriptive They contain about the right level of prescription Should arbitration rules (whether institutional or ad hoc) include provisions dealing with each of the following issues: Yes No Awarding of interest Conduct of parties and/or their counsel Consequences for delay by arbitrators Consequences for delay by the parties and/or their legal representatives Deadlines for issuing awards Document production procedures Format and procedure for submissions on costs Organisation and conduct of hearings Principles or guidance on the allocation of costs Privilege Sealed offers Security of electronic communications and information Standards of independence and impartiality for arbitrators Standards of independence and impartiality for expert witnesses Use of tribunal secretaries Q50: Which stakeholders are best placed to influence the future evolution of international arbitration? (Select three options) Arbitral institutions Arbitration interest groups/bodies (e.g. CIArb, ICCA, IBA Arbitration Committee) Arbitrators External counsel In-house counsel Parties (non-legal personnel) States (e.g. Ministries of Justice) 13
16 Q51: In your view, which of the following factors will have the most significant impact on the future evolution of international arbitration? (Select three options) Emphasis on collaborative rather than adversarial processes Greater certainty and enforceability of awards Greater harmonisation of standards and processes Increased diversity across both arbitrators and users of arbitration Increased efficiency, including through technology More transparency from arbitral institutions More publicly available information about arbitrators Protection of procedural flexibility and adaptability Personal Interview Q52: Q53: Would you be willing to participate in a short interview to discuss points arising from the questionnaire and your answers? Yes No Is there anything you would like to add to your answers in this survey (including any general comments you might have)? 14
17 Thank you for completing this questionnaire. Please contact Adrian Hodis if you have questions or if there is anything you would like to discuss. Please forward this questionnaire to any other potentially interested respondents.
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