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QMUL publishes results of 2015 international arbitration survey
Practical Law UK Legal Update 5-619-2905 (Approx. 5 pages)
QMUL publishes results of 2015 international arbitration survey
| Published on 07 Oct 2015 • International |
The School of International Arbitration at Queen Mary, University of London (QMUL), has published the results of the 2015 international arbitration survey on improvements and innovations in international arbitration.
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The School of International Arbitration at Queen Mary, University of London (QMUL) has published the results of its 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, sponsored by White & Case LLP. The survey sought to ascertain the views of the arbitration community as a whole on improvements and innovations in the arbitral process.
The survey results indicate that arbitration (whether alone or with other forms of ADR) is the preferred dispute resolution method for 90% of respondents. The key findings of the survey identify respondents' views on international arbitration, their preferred and most improved seats and institutions, mechanisms for reducing time and costs, and views on the role of regulation and guidelines in international arbitration.
Professor Loukas Mistelis, Director of the School of International Arbitration (SIA) at QMUL, and member of the Practical Law Arbitration consultation board, commented:
"The School of International Arbitration at Queen Mary University of London celebrates its 30th anniversary this year. It was the first place in the world to teach arbitration at graduate level and also the first main research centre. The 2015 survey is the sixth international arbitration survey of the School and the third sponsored by White and Case. It is also the largest, with 763 respondents and 105 interviews. We survey a very large sample and our questionnaires have become more nuanced over the years. The data collected is quite substantial and no doubt it will take some time to fully analyse it. What we have published is the executive summary and an executive report.
Arbitration, despite increased criticisms is well established and the survey shows that arbitration users, in-house lawyers, counsel and arbitrators, as well as the arbitration institutions have become very sophisticated. It is also clear that Asia is gaining very much in popularity. Regulation becomes also more refined and respondents seems to agree that macro-regulation is now sufficient while some micro-regulation will be needed.”
The School of International Arbitration at Queen Mary, University of London (QMUL) has published the results of its 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, sponsored by White & Case LLP. The aim of this survey was to ascertain the views of the arbitration community as a whole on improvements and innovations in the arbitral process. The survey received a remarkable 763 responses, while 105 interviews were conducted, providing a valuable glimpse in to the arbitration community's desired future developments in arbitration.
While international arbitration is constantly evolving, it is reassuring that it remains the preferred dispute resolution mechanism for cross-border disputes. 90% of respondents to the survey indicated that they preferred arbitration, either as a stand-alone method (56%) or together with other forms of ADR (34%). Key findings of the survey include:
- Best and worst features of arbitration. Enforceability of awards, avoidance of specific legal systems and national courts, flexibility and arbitrator selection are seen as arbitration's most valuable characteristics. The worst features are costs, lack of effective sanctions during the arbitral process, lack of insight into arbitrators' efficiency, and lack of speed are viewed as the worst features.
- The seat. The five most preferred and widely used seats are London, Paris, Hong Kong, Singapore and Geneva, with "reputation and recognition of the seat" being quoted as the reason. Singapore, followed by Hong Kong, were found to be the most improved seats over the last five years. Top of the list of reasons for preferring one seat over another was the neutrality and impartiality of the local legal system.
- The institutions. The five most preferred arbitral institutions are the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Hong Kong International Arbitration Centre (HKIAC), the Singapore International Arbitration Centre (SIAC) and the Stockholm Chamber of Commerce (SCC). The HKIAC was found to be the most improved institution over the last five years. In terms of institutions' role in improving international arbitration, the two most popular positive developments identified were more public information regarding the average length of an institution's arbitrations and greater transparency of institutional decision-making in the sphere of arbitrator appointments and challenges.
- Reducing time and cost. A requirement for tribunals to commit to and notify parties of a timetable for deliberations and delivery of the final award was perceived as the most effective procedural innovation for reducing time and cost. Other effective innovations included stronger pre-appointment scrutiny of arbitrators' availability and the requirement for an early procedural conference
- Simplified procedure for smaller claims. 92% of respondents would favour the inclusion in institutional rules of simplified procedures for claims under a certain value; 33% as a mandatory feature and 59% as an optional feature.
- Third party funding. A large majority of the respondents believe that third party funding (71%) is an area that requires regulation, although that figure reduced to 49% of those with experience of third party funding in practice. 58% of respondents considered that the most effective way to regulate would be through guidelines such as the IBA Guidelines. There is also a general consensus that it should be mandatory for claimants to disclose the use of third party funding and the identity of the funders.
- Emergency arbitrators. 93% of respondents favour the inclusion of emergency arbitrator provisions in institution rules, although 46% of respondents said that they would rather seek urgent relief from the courts before the constitution of the tribunal. Most respondents reported that they had no experience of using an emergency arbitrator and some expressed concern about enforceability of their decisions.
- Appeal mechanism. Most respondents do not favour an appeal mechanism in international arbitration (77% for commercial arbitration and 61% in investment treaty arbitration). This is particularly topical in light of the EU's recent proposals for investor-state dispute settlement (ISDS) provisions in trade agreements being negotiated with the US and others, which include the establishment of an Investment Court System that would include a permanent appeal tribunal (see Legal update, European Commission proposes Investment Court System for EU trade agreements).
Also of interest is the observation over a growing concern that tribunals are reluctant to act decisively for fear of the award being challenged on the ground that a party has not had an opportunity to present its case (quoted as "due process paranoia").
Professor Loukas Mistelis, Director of the School of International Arbitration (SIA) at QMUL, and member of the Practical Law Arbitration consultation board, commented:
"The School of International Arbitration at Queen Mary University of London celebrates its 30th anniversary this year. It was the first place in the world to teach arbitration at graduate level and also the first main research centre. The 2015 survey is the sixth international arbitration survey of the School and the third sponsored by White and Case. It is also the largest, with 763 respondents and 105 interviews. We survey a very large sample and our questionnaires have become more nuanced over the years. The data collected is quite substantial and no doubt it will take some time to fully analyse it. What we have published is the executive summary and an executive report.
Arbitration, despite increased criticisms is well established and the survey shows that arbitration users, in-house lawyers, counsel and arbitrators, as well as the arbitration institutions have become very sophisticated. It is also clear that Asia is gaining very much in popularity. Regulation becomes also more refined and respondents seems to agree that macro-regulation is now sufficient, while some micro-regulation will be needed.”