Evolution Or Revolution? Are We Up For It?

justin-lawrence-154064In a wave of efforts by arbitral institutions to share more and more information with the arbitral community, we are in a better position than ever before to observe and compare what arbitral institutions are doing in response to users’ wishes. White & Case’s recent research shows that arbitral institutions are becoming increasingly flexible and responsive to what users are asking for. Flexibility was in fact identified as one of the most valuable characteristics of arbitration in the 2015 International Arbitration Survey conducted by White & Case and Queen Mary, University of London.

White & Case examined the most recent statistics and other information publicly available from ten major arbitral institutions to see if there were any overarching trends or themes that stood out. A very positive factor in itself was the data gathering process in that it revealed a growing willingness by the institutions to publish and share data.

Demand for data

Statistics regarding female arbitrator appointments, for instance, were only made available by some institutions from 2014. Given the increased drive by institutions to please their users, as well as the heightened competition amongst them all, it will be a safe bet to say that many more institutions will be publishing data on female appointments and other issues in the coming years.

The key results of the research were that (a) more parties are wishing to use expedited proceedings, a tool that is becoming more widely on offer by the institutions; (b) there is an increase in, even preference for in some cases, single member tribunals over three member tribunals, and (c) more female arbitrators are being appointed, at least by the institutions themselves.

That the institutions are taking heed of what users really want and are reacting accordingly will no doubt have a positive impact on the arbitration process. This cannot however be considered in a vacuum. Indeed, to gain the optimal benefit from this welcome move, the other players must co-operate and play their part as well.

Users must not blindly opt for new procedures or measures without carefully analysing the specific circumstances of their case. In the same vein, users should equally ensure they do in fact seriously take into account the new tools and methods made available to them. It is all very well making a song and dance about having new options and procedures introduced and then not actually using them in practice.

Looking ahead

It is interesting to look at female arbitrator appointments. The institutions themselves are making impressive efforts to appoint females, but female appointments by parties and co-arbitrators are lagging behind considerably. There is room for much improvement here. It is noteworthy that the Equal Representation in Arbitration Pledge has been signed by about 2,000 users, including individuals, lawyers, law firms, corporates and arbitral institutions, but parties and co-arbitrators are not yet appointing nearly as many female arbitrators as the institutions.

Why is this so? Perhaps it is partly due to a mindset that “while it makes sense for more females to act as arbitrators, in my particular case with my money and reputation at stake, I prefer to go with the known figures.” What’s the solution? A start could be law firms providing more opportunities to women internally which could have a snowball effect with good female counsel being appointed as arbitrators. There may be room for counsel to educate clients as to the benefits of appointing female arbitrators. Perhaps a conscious change of mentality is required amongst co-arbitrators as well.

The rise in the use of sole member tribunals is also welcome news in light of the benefits of speed and cost. It is pleasing to learn that more parties are exercising this option, no doubt with concerns of time and cost at the forefront of their minds. This though cannot be looked at in isolation of the circumstances of each case. This is where counsel and parties must carefully analyse the possible risk of losing out on quality, especially in a particularly complex and large case, when a sole member tribunal is appointed.

Similar concerns apply to expedited proceedings. It is applaudable that parties are optimising an ever increasing array of tools on offer by institutions to allow for expedited proceedings but again, this will not be appropriate in all circumstances. There is an argument that something is inevitably lost in the name of efficiency. To illustrate that expedited proceedings are not necessarily appropriate for all cases lies in the fact that the institutions will not necessarily accept all applications.  Nonetheless, the parties now have the choice and after careful consideration with counsel, can opt for this procedure.

Time and cost

Finally, it would be amiss not to make mention of time and cost. The results of the research indicate that there is room for improvement by the institutions. To stop there though would be to ignore the fundamental role of parties, counsel and arbitrators. Much is also in their hands to maximise efficiency and minimise cost such as avoiding unnecessary delay tactics by parties and counsel and stronger case management by arbitrators.

We are witnessing a clear evolution, maybe a quiet revolution, in the attitudes and actions of arbitral institutions. This will no doubt continue if they wish to stay in the game, especially where there is sharper competition and greater expectations by users. What cannot be ignored though is that users in return must be mature about the new choices available to them. Are they up for it? If there is careful consideration and co-operation by parties, counsel and arbitrators alike, the answer should be a definite yes.

Written by Fiona Candy and Andrew McDougall.

This post largely draws upon an article on the Kluwer arbitration blog dated 20 April 2017 by the same authors.

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Fiona
Candy is a professional support lawyer in White & Case’s Paris office providing additional support for the Arbitration practice. Prior to joining White & Case, Fiona worked at a Magic Circle firm as Knowledge Management Lawyer for their Arbitration group after having worked there as a lawyer for several years in international arbitration.

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Andrew de Lotbinière McDougall
is a Partner in the international arbitration practice of White & Case LLP and serves as chair of the firm’s EMEA Operations Council and head of the firm’s EMEA disputes section for international arbitration and construction. A leading international arbitration lawyer, Andrew offers clients the benefit of his substantial oral advocacy, case strategy and team management experience in large-scale, cross-border disputes around the world.



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