ENDURING POPULARITY, TECHNOLOGICAL ADAPTATION, AND DIVERSITY – THE NEW QMUL ARBITRATION SURVEY PROVIDES KEY INSIGHTS
Despite the immense challenges of the past year, international arbitration is adapting and thriving – that is the key message of the 2021 Queen Mary/White& Case International Arbitration Survey
Despite the immense challenges of the past year, international arbitration is adapting and thriving – that is the key message of the 2021 Queen Mary/White& Case International Arbitration Survey (http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2021-International-Arbitration-Survey-Adapting-arbitration-to-a-changing-world.pdf). The survey is a unique and invaluable resource for anyone in this field and sharing some main points of interest can help illustrate where the world of arbitration is heading.
Out of many interesting findings, based on the answers provided by over 1200 participants (the largest number ever)it is possible to discern three broad trends: 1) enduring popularity of arbitration and its global appeal; 2) rapid technological development and adaptation, partly in response to Covid-19; and 3) increasing demands for diversity of arbitrators on different grounds.
Arbitration remains the preferred method of dispute resolution for 90% of respondents – there is little doubt that its popularity persists; yet, what is interesting is that considerably more respondents (59%) prefer to have arbitration combined with some other form of alternative dispute resolution (such as mediation) than simply on its own (31%). This points to a broader trend that a ‘full’ dispute resolution service for a law firm also includes awareness and expertise in a number of ADR fields.
In terms of popular arbitral seats and institutions, not much is new – 3 out of 5 most popular seats are in Europe (London, Paris and Geneva) and 2 in Asia (Singapore and Hong Kong). A similar but reversed ratio is for arbitral institutions, with 3 most popular being Asian – SIAC in Singapore, HKIAC in Hong Kong and Chinese CIETAC and two European heavy-hitters of Paris-based ICC and London’s LCIA. Not much is surprising concerning most popular proposals for making arbitral seats more attractive – impartial court support for the arbitration process and for the enforcement of awards remain key concerns. In the same vein, parties are mostly willing to sacrifice unlimited submission length and oral hearing on procedural matters if it would help promote efficiency.
What is interesting is the speed by which technological issues, particularly those related to virtual hearings, have taken over as main concerns in light of the global pandemic. Survey shows widespread acceptance of virtual hearings through either videoconferencing or hearing room IT, as well as increasing level of comfort with the use of technology. If a physical hearing is not possible, 79% of respondents would proceed with a virtual one, as opposed to only 16% who would insist on waiting until in-person hearing was an option. The ‘administrative/logistical support for virtual hearings’ was the most popular answer for what would make arbitral rules or institutions more attractive.
Possibilities for greater efficiency, savings and availability of hearing dates were identified as key advantages of virtual hearings, and answers indicate that a mix of virtual and physical hearings will take place in the post-pandemic era as well. However, concerns about practical difficulties (time zones, fatigue, communication) with virtual hearings were also noted, and it seems most respondents would like to keep an option of in-person hearings for at least the main substantive ones.
Finally, the diversity of arbitrators has continued its ascent as one of the key points of importance. A ‘commitment to a more diverse pool of arbitrators’ is the second most popular answer when it comes to desirable features of arbitral institutions, and almost 60% of respondents feel that institutions should foster diversity in various ways. Importantly, not all aspects of diversity are seen in the same light – while about half of respondents feel that there has been progress when it comes to gender diversity of arbitral tribunals in the past three years, only about a third feels the same way concerning geographical, age, cultural, and ethnic diversity. There is clearly much more to be done, and popular suggestions among participants include educational, promotional and mentorship initiatives for practitioners with less experience or coming from jurisdictions with less developed practice of arbitration.
As in many other fields, the world of arbitration will not be the same after the pandemic – and the trends highlighted above are something to keep in mind when resolving cross-border disputes.