2018 International Arbitration Survey

THE EVOLUTION OF INTERNATIONAL ARBITRATION

In partnership with:

Contact:

Adrian Hodis (White & Case Research Fellow in International Arbitration)

a.hodis@qmul.ac.uk

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 2017. 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 2017. Results will be published in Spring 2018. 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:

http://www.arbitration.qmul.ac.uk/research/2018/index.html

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

67-69 Lincoln's Inn Fields, London WC2A 3JB, UK

Tel: +44 20 7882 8211

Fax: +44 20 7882 8101

Email: a.hodis@qmul.ac.uk

Website: http://www.arbitration.qmul.ac.uk/

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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: Email address:

Q3: Organisation name:

Q4: Your primary role:

In-house counsel

Private practitioner

Arbitrator

Arbitrator and counsel (in approximately equal proportion)

Other

Q5: Please specify your position:

2

Q6: 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

Q7: 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 Other (specify):

Q8: Over the past 5 years, approximately how many international arbitrations have you personally been involved in?

0-5

6-10

11-20

21-30

31-50

50+

Q9: Over the past 5 years, approximately how many international arbitrations has your organisation been involved in?

0-5

6-10

11-20

21-30

31-50

50+

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Part II: Choices in International Arbitration

General experience of arbitration

Q10: 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

Q11: 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

Other (specify):

Q12: 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

Other (specify):

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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: 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:

Q15: 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 2 3 4

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

Other (specify):

5

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):

1 2 3 4 5

Negative Positive

Q17: 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.

Other (specify):

Q18: 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?

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Choice of arbitral institution and rules

Q19: 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:

Q20: 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 2 3 4

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, pro-activeness, 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

Other (specify):

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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

Other (specify):

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

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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)

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:

Q27: 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

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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?

Yes

No

Q30: If yes, how? (Select all that apply)

Report to arbitrators

Report to arbitral institution (if any)

Publicly available reviews

Other (specify):

Funding, Efficiency and Confidentiality

Q31: 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

Q32: 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):

1 2 3 4 5

Negative Positive

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Q33: 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

Q34: 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):

1 2 3 4 5

Negative Positive

Q35: 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

Q36: 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

Q37: 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)?

1 2 3 4 5

Negative Positive

Q38: What one change would you recommend to make arbitral proceedings more efficient?

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Q39: 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

Q40: Should confidentiality be an opt-in or an opt-out feature?

Opt-in

Opt-out

Q41: 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

Q42: 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)

Other (specify):

The Future

Q43: In your view, how likely is it that the use of international arbitration for resolving cross-border disputes will increase in relation to the following industries and sectors? (Select one answer per row)

Likely Unlikely No view

Banking and finance

Construction/Infrastructure

Energy (including Oil & Gas)

Technology

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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 arbitral institutions

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: In your view, will the use of international arbitration to resolve investor-state disputes increase in the future?

Yes

No

Q46: 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 (e.g. multimedia presentations, real time electronic transcripts)

Videoconferencing

Virtual hearing rooms

Q47: Should the following forms of information technology be used more often in international arbitration?

Yes No 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

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Q48: 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

Q49: 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)

Other (specify):

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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

Other (specify):

Personal Interview

Q52: Would you be willing to participate in a short interview to discuss points arising from the questionnaire and your answers?

Yes

No

Q53: Is there anything you would like to add to your answers in this survey (including any general comments you might have)?

Thank you for completing this questionnaire.

Please contact Adrian Hodis (a.hodis@qmul.ac.uk) if you have questions or if there is anything you would like to discuss.

Please forward this questionnaire to any other potentially interested respondents.