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The ICC Court of Arbitration has seen an impressive 20,000 cases since its inception in 1923. Despite its reputation as a leading arbitral institution, the ICC continues to strive for a foothold in a competitive, global environment. The recent statistics provide an opportunity to assess how the Court fared in 2013.
Strengthening the Court’s international presence is a key priority for the ICC, as indicated in its Programme for Action 2014. In this regard, the ICC has produced an encouraging set of figures.
A breakdown of the statistics indicates that an extension to the ICC’s frontiers. Of the nationalities represented in ICC arbitrations, US parties continued to dominate. In an unprecedented development, China ranked fifth. There was also a marked increase in arbitrations from Sub-Saharan Africa, whose parties represented over 29 nationalities (up from 23 in 2012).
The international caseload manifests the general increase in global transactional disputes, but it is also a product of the ICC’s internal reforms and outreach activities.
Firstly, the ICC Rules 2012 did much for the Court’s appeal. The revisions sought to increase the efficiency of the arbitral process, improving the handling of complex disputes. Furthermore, codifying ICC practice (and indeed the drafting process itself) enhanced transparency. The latter is particularly attractive to Sub-Saharan Africa- investors are encouraged by resolution of disputes in a neutral, transparent forum.
Secondly, the ICC actively cultivated external relationships during 2012-13. Opening its New York office in 2013 reaffirmed commitment to North America and made access to the Secretariat more convenient. Consequently, we can expect a continued stream of US cases in 2014-15. In addition, the ICC / CCOIC Memorandum of Understanding, as well as initiatives such as the Silk Road Project, put the ICC on the radar in China. Forging such connections raised the Court’s profile amongst those considering jurisdictional clauses.
The ICC Rules 2012 made the arbitral process more amenable to State involvement. We can see the outcome in the figures- a significant increase on 2012.
As disputes involving State entities are politically sensitive, the chosen forum should have a strong reputation for neutrality. The ICC Rules enhanced this perception. For example, Art.13(4) enables the Court to appoint a suitable arbitrator where State parties are involved; as such, the ICC may have become preferable to National Courts, whose National Committees could be more susceptible to bias.
2014-15 could see a steeper upward trend if the ICC acts upon proposals to amend the standard arbitration clause in States’ contracts (Arbitration Commission Report). Including time-limits and confidentiality provisions might further allow ICC arbitrations to accommodate States.
The ICC incorporated emergency relief in Article 29 and Appendix V of its 2012 Rules. It was hoped that provisions for emergency relief would reduce the need for parties to resort to national courts in the first instance; however, this is not borne out in the statistics.
Although there has been a slight increase on 2012, the figures are low. George Spalton of 4 New Square suggests that ‘it may take a few years for the relatively new rules on Emergency Measures to have a significant impact.’ We may need to reserve judgment until the Court builds a body of cases. In any event, national courts remain the preferred fora for parties seeking urgentinterim relief at the outset of proceedings.
Yet, lack of interest in emergency measures is not unique to the ICC. Even the SCC - the first, prominent international arbitration institution to formally adopt emergency measures - has received only 9 applications since incorporating the procedure in 2010. The dearth may be down to inherent limitations in emergency measures ('Emergency Arbitration- what's it all about?' ). In particular:
In principle, there is a market for emergency measures, hence why the leading arbitral institutions have adopted the procedure (including the LCIA, whose new rules come into force on 1 October). Incorporating the procedure enabled the ICC to keep pace with competitors; beyond this, there has been little practical impact.
The statistics bolster the ICC’s self-proclaimed status as a global institution. Revisions to the Rules broadened the Court’s appeal at an opportune time, when international arbitration is on the rise; moreover, savvy promotional strategies crystallised the ICC’s international presence. However, emergency relief has had poor take-up; it is unlikely that the number of applications will rise dramatically - the figures are symptomatic of broader concerns with emergency measures.
Overall, a heartening set of figures upon which the ICC can build. The ICC is committed to self-improvement, conscious as it is of competition; it remains to be seen what the ICC can learn from the LCIA when their rules come into force. For that, we will hold our breath for the 2015 Statistics.
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