Evolution Or Revolution? Are We Up For It?

In 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