Legal counsel and arbitrators must show “greater proactivity and courage” to address behaviours that negatively impact arbitral efficiency, according to White & Case and the School of International Arbitration of Queen Mary University of London’s (QMUL) latest International Arbitration Survey.
The final findings of the survey – which published initial data on leading seats and AI earlier in the year – was launched at an event to coincide with London International Disputes Week and International Arbitration Day.
Survey respondents frowned equally upon overly adversarial approaches by lawyers (24%), lack of proactive case management by arbitrators (23%) and over-lawyering (22%) as their three highest concerns.
By contrast, resolving disputes faster was seen as an effective way to enhance efficiency, whether by expedited procedures (50%) or early determination for manifestly unmeritorious claims or defences (49%). However, their use was most marked in simpler cases and depended on a tribunal’s readiness to make swift decisions.
Respondents praised using arbitral rules that placed expedited procedures and paper-only arbitration, while balancing efficiency with procedural fairness. Choosing speedier options was driven by pragmatism – a desire to minimise costs (65%) and ensure rapid resolution (58%) – particularly for disputes of lower value or complexity.
Writing in the foreword to the report, Abby Cohen Smutny, co-chair of White & Case’s international arbitration practice, said the report “explores how users of international arbitration view pressing issues such as how to tackle inefficiencies, the competing interests of confidentiality and transparency to disputes involving public interest issues, and the transformative potential of technology”, among other findings covered previously.
While confidentiality remains a cornerstone for most commercial arbitrations, the survey found growing support for increased openness, especially in government or state enterprise disputes.
Most respondents (59%) supported publishing redacted awards in investor-state disputes, but nearly 90% opposed public access to commercial hearings due to concerns over commercial information and reputational risk.
Those same concerns were evident in cases involving public interest issues, particularly between purely business parties that have no public sector party interest.
Only one-third of respondents had come across public interest issues in arbitrations. However, there was a clear expectation that environmental and human rights issues would increasingly become present.
Respondents reiterated that the ability to select arbitrators with relevant experience (47%) and to avoid specific legal systems or national courts (42%) were factors in choosing to resolve disputes in this manner. Still, in doing so, concerns included balancing confidentiality and transparency (47%) and the lack of arbitral tribunal power over third parties (46%).
The survey gathered insights from more than 2,400 arbitral respondents globally, reflecting a 97% increase in responses from previous years, with 117 in-depth interviews conducted.
The Global Legal Post is a media partner of London International Disputes Week. For more coverage, click here.
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