2012 Current and Preferred Practices in the Arbitral Process

The 2012 International Arbitration Survey 'Current and Preferred Practices in the Arbitral Process' is the fourth empirical survey conducted by the School of International Arbitration at Queen Mary University of London, and the second sponsored by White & Case LLP.

• View the 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process Survey Findings [PDF 2,759KB] on the White & Case website.

The survey forms part of a major investigation into arbitration practices and trends worldwide. The subjects of the previous international arbitration surveys were corporate attitudes towards arbitration, the enforcement of international awards, and corporate choices in international arbitration.

Unlike the previous surveys, views were sought not only from in-house counsel, but also from private practitioners and arbitrators. This provided a pool of respondents which was both highly knowledgeable of international arbitration and dramatically larger than earlier surveys.

The 2012 Survey explores current and preferred practices in the arbitral process and highlights the gaps between them. It further compares the results from different categories of respondents (i.e., by their legal background, role, geographic location and industry sector).

Survey findings

• Selection of arbitrators: A significant majority of respondents (76%) prefer selection of the two co-arbitrators in a three-member tribunal by each party unilaterally. This shows that the arbitration community generally disapproves of the recent proposal calling for an end to unilateral party appointments.
• Organising arbitral proceedings: The IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules") are used in 60% of arbitrations: in 53% as guidelines and in 7% as binding rules. Interviewees explained that they prefer adopting the IBA Rules as guidelines as it provides for more flexibility.
• Document production: Notwithstanding the differing traditional approaches to document production in civil and common law systems, the survey reveals that 70% of respondents believe that Article 3 of the IBA Rules (documents 'relevant to the case and material to its outcome') should be the applicable standard for document production in international arbitration.
• Fact and expert witnesses: While cross-examination is sometimes criticised as an ineffective common law procedure, the survey reveals that there is very strong support for the use of cross-examination in international arbitration to test witness evidence. The vast majority of respondents believe that cross-examination is either always or usually an effective form of testing fact witnesses (90%) and expert witnesses (86%).
• Pleadings and hearings: Substantive written submissions are generally exchanged by the parties either sequentially or simultaneously. The survey reveals not only that sequential exchange of substantive written submissions occurs much more regularly (82%) than simultaneous exchange (18%), but also that there is a strong preference for this type of exchange (79%).
• The arbitral award: How long should a tribunal take to render an award? For sole arbitrators, two-thirds of respondents believe that the award should be rendered within 3 months after the close of proceedings. For three-member tribunals, over three-quarters of respondents (78%) believe that the award should either be rendered within 3 months (37%) or in 3 to 6 months (41%).
• Costs: Tribunals allocate costs according to the result in 80% of arbitrations, and leave parties to bear their own costs and half the arbitration costs in 20% of arbitrations. However, only 5% prefer this latter approach, which shows a desire for tribunals to allocate costs according to the result even more frequently than they are currently doing. An overwhelming majority of respondents (96%) believe that improper conduct by a party or its counsel during the proceedings should be taken into account by the tribunal when allocating costs.

Contact

School of International Arbitration, Centre for Commercial Law Studies,
Queen Mary, University of London
67-69 Lincoln's Inn Fields London WC2A 3JB, UK