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An analysis of arbitration caseload statistics for 2017 gives pause for thought, says James Clanchy of the Lexis PSL Arbitration team. Assumptions about the continuing growth of arbitration and about the ascendancy of institutions may be in need of correction.
Institutions and other arbitral bodies publish their annual caseload statistics in the first few months of the following year. May 2018 also saw the publication of the latest Queen Mary University of London (QMUL) and White & Case LLP international
arbitration opinion survey report 2018 (the QMUL Survey). This analysis looks behind some of the headlines. It finds indications that both arbitrations and appointments declined overall in 2017 and it considers the implications for arbitrators and
Caseload statistsics have to be put in the wider economic contexts which give rise to commercial disputes. The global financial crisis ten years ago spawned large numbers of new arbitrations. Arbitral institutions expanded in its wake and
new ones were established.
Different external factors will explain the slight decline in caseload numbers between 2016 and 2017 reported here. Nevertheless, institutions will be looking at their own performance and reviewing their rules, practices and charges. They
know that parties have choices. Apart from other institutions, ad hoc arbitration has always been an option and it still predominates in London, which is the world’s favourite seat according to the QMUL Survey.
It is obvious that declining casleoads have implications for institutions, users and arbitrators. Even expanding caseloads don’t necessarily lead to higher numbers of appointments in the current climate, as SIAC’s statistics confirm.
If a downward trend continues, there would be several potential implications. Less work for arbitrators means less work for secretariats and it could impact on the revenue of both.
Arbitrators could face pushback on their fees. At the same time, they should be more readily available for hearing dates and generally more responsive. New arbitrators would find it more difficult to enter the market and, if times are tight
but arbitrators have more capacity, the appointment of administrative secretaries may be seen as a luxury.
The 2017 statistics analysed here suggest that something of a reality check is needed. It is often assumed by some practitioners, and by sections of the media, that international arbitration is continuing to grow. Jurisdictions such as Singapore
are praised for their rapid expansions as seats. However, these statistics suggest that growth is not a given and that opportunities for arbitrators, even in Singapore, may be reducing.
Of course, these particular statistics may not be representative of arbitration worldwide and they may be only a blip. Whether a medium- term or long-term pattern will emerge is yet to be seen. We look forward to examining the information
made available next year.
It is impossible to collate statistics for all international commercial arbitrations worldwide. Institutions vary in their approaches to compiling and publishing statistics. The numbers analysed here are extracted from the institutions’
annual reports and from other information provided by them. However, the institutions do not all publish the same sets of data. For example, they do not all publish the numbers of tribunals constituted in arbitrations under their institutional
rules. It may be appropriate for institutions to consider taking a uniform approach on caseload statistics, to allow ‘like for like’ comparisons, just as the LCIA has called for a level playing field in relation to costs and duration data.
My blog post ‘Arbitration statistics and alternative facts’ drew attention to the misleading picture if ad hoc arbitration
is ignored. However, by its nature, ad hoc arbitration cannot generally be quantified. The London Maritime Arbitrators Association (LMAA) is an exception: it asks its Full Members to let it know how many appointments they received in the
previous year. The statistics the association produces are inevitably incomplete, though, because arbitrators, who are not Full Members, are also appointed in LMAA arbitrations.
For the purpose of this analysis, the statistics of five institutions have been collated. These are the top five institutions, according to respondents’ organisations’ preferences, as found by the QMUL Survey:
To these has been added one ad hoc arbitrators’ association, the LMAA, for purposes of comparision and also because it was ranked as an institution by respondents to the QMUL Survey in the increasingly important regions of the Middle East and Asia-Pacific
(in error by those respondents but as a convenience by the compilers of the report).
This analysis is restricted to commercial arbitrations and does not consider investor-state arbitration (which is witnessing a similar decline, according to UNCTAD’s latest statistics).
A direct comparison of numbers of arbitrations commenced in 2017, as reported by the six organisations, shows an overall decline of 7% from 2016.
The ICC saw a drop of 16% and the LMAA 13%. In contrast, SIAC saw a 32% increase. However, this is mitigated by a decline in SIAC’s number of arbitrators appointed (263) (see below) which is significantly lower than the number of new
arbitrations (452). HKIAC saw a more modest 13% increase in its caseload.
These are figures for all arbitrations handled by the organisations, as reported by them and whether under their own rules or ad hoc arbitrations in which they were providing various services. For example, of the LCIA’s 285 new cases in 2017,
52 were ad hoc. Adding the LMAA’s estimated figure for new references (1,496) to ad hoc case numbers from the five institutions, the total for 2017 is 1764. This is close to the total of new arbitrations under the institutions’own
rules in 2017, 1776. Bearing in mind that most ad hoc arbitrations take place outside the institutions and without any recourse to them, the continuing importance of ad hoc arbitration cannot be in doubt.
There were 446 fewer appointments of arbitrators across the six organisations in 2017 than in 2016, a decline of 8%.
The LMAA saw a decline of 14% in its number of appointments between 2016 and 2017. SIAC’s decline was sharper at 23% and more remarkable coming, as it did, in a year in which its caseload actually increased by 32%. There are various
explanations, eg higher proportion of sole arbitrators, settlements intervening between filing and appointment, and pre-appointment consolidation of cases. Nevertheless, costs and other factors might also play a part in driving parties away
from institutions after filing.
Breaking these numbers down further, it can be seen that the newer arbitral institutions in the Asia Pacific region, SIAC and HKIAC, still have a long way to go before they rival the older institutions in terms of active arbitrations under their own rules,
arbitrations which are actually put on foot and have tribunals constituted for them. SIAC may have seen more requests for arbitration filed with it in 2017 than the LCIA but it saw 170 fewer arbitrators appointed in cases under its institutional
rules. In arbitrations of this kind, 50% of the appointments were of arbitrators in LMAA arbitrations; SIAC had 4.7%.
The newer institutions may yet catch up but, in the meantime, the statistics suggest that all institutions have work to do to retain and attract users.
They also indicate that ad hoc arbitration is not ready to give way and that some practitioners in London are right to be puzzled by the QMUL Survey’s finding that 80% of respondents believed that institutions were best placed to make an impact
on the future evolution of international arbitration.
To follow developments in caseloads, see our Practice Note ‘Arbitration statistics and surveys’,
which is updated regularly.
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James is an arbitration specialist. He has more than 25 years’ experience of ad hoc, trade association, institutional and investment arbitrations as a solicitor in London and Paris, as a former Registrar of the London Court of International Arbitration (LCIA), and as a case assessor for legal costs insurers and third party funders. His background as a lawyer is in international trade, commodities, shipping and insurance.
He trained at Withers in London and then spent four years in the firm’s Paris office. He was admitted as an avocat at the Paris bar (1994 – 2008). Returning to London, he spent more than 13 years at Holman Fenwick Willan in its Trade & Energy group. As Registrar and Deputy Director General of the LCIA in 2008 – 2012, he oversaw the administration of more than a thousand commercial arbitrations and assisted with a review of its Arbitration Rules. He subsequently spent two years at Thomas Miller Legal, assessing and managing a wide range of commercial and investment claims on behalf of insurers and funders. Returning to private practice in 2015, he spent a year in Stephenson Harwood’s International Arbitration group where he assisted on ICC and LCIA arbitrations, principally oil and gas disputes.
James is a Fellow of the Chartered Institute of Arbitrators. At LexisNexis, James works on the Lexis®PSL Arbitration module.
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