A word of warning

Before delving into the numbers, it is important to set out that limited reliance should be placed on statistics. This is for a number of reasons:

• The manner in which statistics are gathered or portrayed can be misleading

• Even where fair and accurate, statistics often just tell one side of the story

• Arguably, the people who participate in studies may be of a certain subset and responses are not reflective of the wider community

• In arbitration specifically, many proceedings will be ad hoc, meaning that it is difficult to gather data

Whilst awareness of potential limitations is crucial, that is not to say they exist in each instance. Statistics can provide a helpful understanding of important elements of international arbitration, and most notably, how preferences have developed since previous studies and thus where we may expect to see them go in the future.

The statistics

One of the most well-known and widely-quoted arbitration surveys is the one by Queen Mary University of London, most recently in collaboration with White & Case (in 2021 and 2018) and previously with PwC. The 2021 version tells us the following:

• For a whopping 90% of respondents, international arbitration is the preferred method of resolving cross-border disputes.

Take your seat

• The five most preferred seats for arbitration are London, Singapore, Hong Kong, Paris, and Geneva.

  Respondents could select several seats as their preferred choice, and 54% included London, 54% included Singapore, 50% included Hong Kong, 35% included Paris, and 13% included Geneva. However, these answers very much differed based on where respondents were located, with Sao Paolo, New York, and Beijing being very popular in certain regions.

  Institutions and rules

  The five most preferred arbitral institutions are the ICC, SIAC, HKIAC, LCIA, and CIETAC.

  ICC was the preferred institution (57%), followed by SIAC (49%), HKIAC (44%), and the LCIA (39%). These top-four choices have been the market leaders for well over a decade.

  In 2021, CIETAC (17%) made it to the top-five most preferred choices for the first time.

  The UNCITRAL Arbitration Rules are the most popular regime for ad hoc arbitration. …

  76% of respondents most frequently used the UNCITRAL Arbitration Rules during ad hoc proceedings.

• When asked what adaptations would make other institutions or rules more attractive to users, responses were as follows:

  • 38% - Administrative/logistical support for virtual hearings

  • 32% - Commitment to a more diverse pool of arbitrators

  • 29% - Transparency of administrative processes and decisions, such as selection of and challenges to arbitrators

  • 25% - Provision of expedited procedures

  • 24% - More tailored procedures for complex and multi-party arbitrations

  • 23% - Provision for arbitrators to order both virtual and in-person hearings

  Diversity

  Are arbitrators still overwhelmingly “pale, male, and stale”?

  When asked what progress had been made in relation to the diversity of arbitrators, responses were as follows:

  • 61% thought gender diversity had improved

  • 38% thought geographic diversity had improved

  • 36% thought age diversity had improved

  • 31% thought ethnic diversity had improved

  It seems progress is being made in some areas and is still to follow in others.

• When asked about ways to bridge the gap, the top three choices were:

  • Appointing authorities and institutions adopting an express policy of suggesting and appointing diverse candidates as arbitrators

  • Commitment by counsel to suggesting diverse lists of arbitrators to clients

  • Education and promotion of arbitration in jurisdictions with less developed international arbitration networks

  Technology

  COVID has changed the way in which arbitrations take place - at least for now:

• 95% of respondents had used videoconferencing, with 63% of those doing so on a frequent or permanent basis.

• Accordingly, if a hearing could no longer be held in person:

  • 79% of respondents would proceed virtually to stick to the schedule

  • Only 16% would postpone the hearing until it could be held in person

  • 4% would do away with the hearing part and proceed on a documents-only basis

• Notably, among arbitrators, 87% would proceed with a virtual hearing if an in-person hearing wasn’t possible.

• However, when asked about substantive hearings post-COVID, only 8% of respondents felt that these should be held entirely virtually.

  Environmental sustainability

  There were three main areas where respondents felt improvements could be made:

• Adoption of soft law instruments and guidance, e.g., the Pledge for Greener Arbitrations

• Carbon offsetting of flights and printing

• Specific directions from arbitral tribunals in relation to reducing environmental impact