Updated: Aug 26, 2021
The structure of the arbitration proceedings, which is based on the party autonomy, is considered as the feature that adds flexibility and dynamism to the proceedings. This feature is important in adapting the arbitration process to sudden changes and meeting the needs of the participants.
The research conducted by QMUL between October 2020 - March 2021 focuses on the development of arbitration proceedings during the adaptation era with the effect of the epi-demic. Research participants consist of in-House Counsels from public and private sector, arbi-trators, practitioners and arbitration institutions’ staff operating in the field of international ar-bitration. The results obtained from the prominent headlines of the research show the effects of current and changing practices that has been acquired in the judicial processes.
2. Current Choices and Future Adaptations
During the Covid 19 pandemic period, 59% of the participants preferred international Arbitration with ADR mechanisms as a solution method for international disputes, while 31% preferred only arbitration without ADR option for the resolution of disputes. During this period, the five most preferred countries for arbitration in arbitration proceedings are stated as Lon-don, Singapore, Hong Kong, Paris and Geneva.
“Greater support for arbitration by local courts and judiciary”, “increased neutrality and impartiality of the local legal system” and “better track record in enforcing agreements to arbi-trate and arbitral awards” are considered as the key adaptations that would make other arbitral seats more attractive.
The most preferred regime in ad hoc proceedings among the participants was stated as UNCITRAL Arbitration Rules and the most preferred arbitration institutions were ICC, SIAC, HKIAC, LCIA and CIETAC.
“Administrative/logistical support for virtual hearings” and “unlimited length of written submissions” are at the forefront of the transformations that the participants expect to be adopted.
3. Use of Technology in Arbitral Proceedings
Technology continues to be widely used in international arbitration, particularly ‘vide-oconferencing’ and ‘hearing room technologies’ followed by “cloud based storage” and “virtual hearing rooms”. The adoption of AI still lags behind other forms of IT.
If a hearing could no longer be held in person, 79% of respondents would choose to ‘proceed at the scheduled time as a virtual hearing’. Only 16% would ‘postpone the hearing until it could be held in person’, while 4% would proceed with a documents-only award.
The 'potential for greater availability of dates for hearings' is seen as the greatest benefit of virtual hearings, followed closely by 'greater efficiency through use of technology' and 'greater procedural and logistical flexibility'. The points where technology adaptation was lacking were evaluated as the time differences between the locations of the participants and the doubts about the credibility of the witnesses.
4. Sustainability and Information Security
Respondents show a willingness to adopt paperless practices, such as production of doc-uments in electronic rather than hard- copy form; providing submissions, evidence and corre-spondence in electronic format; and the use of electronic hearing bundles. Many respondents would also welcome more ‘green’ guidance, both from tribunals and in the form of soft law.
Although this is not the primary motivation behind the decision as to whether interac-tions should be remote or in-person, environmental benefits of remote participation rather than in-person participation are recognized.
Only around a quarter of respondents said they have ‘frequently’ or ‘always’ seen cyber-security measures being put in place in their international arbitrations. The majority (57%) en-countered such measures in less than half of their cases. In the upcoming years, concerns re-garding cybersecurity and data protection are expected to raised.
5. Diversity On Arbitral Tribunals
Participants consider that most of the progress on diversity on arbitral tribunals has been achieved regarding “gender diversity”. More than half of respondents agree that progress has been made in terms of gender diversity on arbitral tribunals over the past three years. Re-spondents rely on international arbitration institutions to promote and provide diversity on arbitral tribunals. % 59 of respondents continue to emphasize the role of appointing authorities and arbitral institutions in promoting diversity.
Participants are divided as to whether there is any connection between diversity on a tribunal and their perception of the arbitrators’ independence and impartiality. Just over half of the respondents (56%) stated that diversity across an arbitral tribunal has a positive effect on their perception of the arbitrators’ independence and impartiality, but more than one third (37%) took a neutral view.
General consensus indicates that Covid 19 adaptations on arbitration proceedings may have a positive impact on promotion of diversity objectives. Virtual events, meetings and hear-ings may facilitate participation by more diverse contributors, but this may be hindered by une-qual access to technology and the challenges of building relationships remotely.
2021 QMUL International Arbitration Survey: Adapting Arbitration to a Changing World, May 2021.
Av. Ferhan YILDIZLI
Stj. Av. Esra AYDEMİR