QMUL 2012 international arbitration survey: current and preferred practices in the arbitral process | Practical Law

QMUL 2012 international arbitration survey: current and preferred practices in the arbitral process | Practical Law

The School of International Arbitration at Queen Mary, University of London has published its 2012 international arbitration survey on current and preferred practices in the arbitral process. The survey was sponsored by White & Case LLP.

QMUL 2012 international arbitration survey: current and preferred practices in the arbitral process

by PLC Arbitration
Published on 03 Oct 2012International
The School of International Arbitration at Queen Mary, University of London has published its 2012 international arbitration survey on current and preferred practices in the arbitral process. The survey was sponsored by White & Case LLP.
The School of International Arbitration, Queen Mary, University of London has published 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process, sponsored by White and Case LLP.
The 2012 survey, the fourth empirical survey conducted by the School of International Arbitration, canvasses the views of in-house counsel, arbitration practitioners and arbitrators on the current and preferred practices in the international arbitration process. (The first three surveys are accessible from our Institutional Statistics page.)
The aim of the survey was to ascertain whether truly harmonised practices were emerging in international arbitration, and if they were, whether they reflect the preferred practices of the international arbitration community. The results of the study are organised under seven headings. The findings include:
  • Selection of arbitrators: About three-quarters of respondents prefer selection of the two co‑arbitrators in a three-member tribunal by each party unilaterally, and believe that party-appointed arbitrators should be allowed to exchange views with their appointing party regarding the selection of the chair.
  • Organising arbitral proceedings: The IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules) are used in 60% of arbitrations and a significant majority of respondents (85%) confirm that they find them useful. Respondents identified the most effective means of expediting proceedings as early identification of the issues by the tribunal; appointment of a sole arbitrator; and limiting or excluding document production.
  • Interim measures and court assistance: Requests for interim measures to arbitral tribunals, and to courts in aid of arbitration, are relatively uncommon. Only 35% of all interim measures applications addressed to the arbitral tribunal are granted.
  • Document production: Requests for document production are common in international arbitration. The survey also confirms the widely held view that such requests are more frequent in the common law world. 70% of respondents consider that the applicable standard for document production should be documents that are "relevant to the case and material to its outcome", as provided by Article 3 of the IBA Rules.
  • Fact and expert witnesses: In a significant majority of arbitrations (87%), fact witness evidence is offered by exchange of witness statements, together with either direct examination at the hearing (48%) or limited or no direct examination at the hearing (39%). Cross-examination of fact witnesses is generally favoured as a method of testing evidence, and over half of respondents said that there had been mock cross-examination of witnesses in their arbitrations, prior to the witnesses' appearance at the hearing. Regarding expert witnesses, in the vast majority of arbitrations, expert witnesses are appointed by the parties rather than by the tribunal, although 31% of respondents said that they found tribunal-appointed experts more effective.
  • Pleadings and hearings: Sequential exchange of substantive written submissions occurs much more regularly than simultaneous exchange. The survey also reveals that only a small minority of merits hearings are held outside the seat of arbitration.
  • The arbitral award and costs: For sole arbitrators, two-thirds of respondents believe that an award should be rendered within three months after the close of proceedings. For three-member tribunals, 78% of respondents believe that the award should be rendered either within three months (37%) or in three to six months (41%). On costs, the survey shows that most respondents prefer tribunals to allocate costs according to the result of the arbitration. 96% of respondents were in favour of the tribunal penalising improper conduct when allocating costs.