Partner, Global Co-Head International Arbitration Practice Group
The 2025 International Arbitration Survey, entitled “The path forward: Realities and opportunities in arbitration”, investigates current trends in user preferences and perceptions, and opportunities to shape the future innovation and development of the practise of international arbitration. It explores how users of international arbitration view pressing issues such as how to tackle inefficiencies, the competing interests of confidentiality and transparency in relation to disputes involving public interest issues, trends in enforcement of awards and the transformative potential of technology.
This edition saw the widest ever pool of participants (2,402 questionnaire responses received and 117 interviews conducted), almost double the number who participated in our previous survey. Views were sought from a diverse pool of participants, including in-house counsel from both public and private sectors, arbitrators, private practitioners, representatives of arbitral institutions and interest groups, academics, tribunal secretaries, experts and third-party funders. The survey provides a breakdown of some results by categories of respondents, such as by their primary role or the geographic regions in which they principally practise or operate, providing unique insight into the range of views expressed by different stakeholders across the international arbitration community.
White & Case is proud once again to have partnered with the School of International Arbitration at Queen Mary, University of London. The School has produced a study that provides valuable empirical insights into what users of international arbitration want and their expectations for the future. We are confident that this survey will be welcomed by the international arbitration community.
We thank Norah Gallagher, Dr. Maria Fanou and Dr. Thomas Lehmann (White & Case Postdoctoral Research Associate) for their outstanding work, and all those who generously contributed their time and knowledge to this study.
Norah Gallagher Director, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London
It is fascinating to see how quickly the international arbitration community moves on. It only seems like yesterday that we were conducting a survey in the middle of a global pandemic. COVID-19 did warp our perception of time yet the speed with which things have changed since is remarkable. International geopolitics has shifted significantly, resulting in an increased awareness of challenges when arbitrating a dispute when sanctions have been imposed on either party. The responses to these questions in the survey on public interest reflect the current geopolitical status. There has been a significant increased acceptance and reliance on Artificial Intelligence (“AI”). This is perhaps one of the most surprising elements of this survey. The international arbitration community expect AI use to grow rapidly in the coming years.
This is the 14th empirical survey conducted by the School of International Arbitration, Queen Mary University of London and the sixth in partnership with White & Case LLP. We are grateful for their continued support with this important empirical research. We rely entirely on the goodwill of the international arbitration community to complete the questionnaire. This is the only way we can ensure we get the most comprehensive data. This survey involved the largest number of respondents to date with over 2,400 globally. Dr. Thomas Lehmann, our White & Case Postdoctoral Research Associate at QMUL, also interviewed 117 respondents to add colour and context to the quantitative stage.
Highlights
The 2025 Survey explores a number of key international arbitration issues, including: how AI is changing the game in international arbitration, efficiency, the enforcement of arbitration awards and public interest issues (such as human rights and corporate social responsibility).
This edition saw a 97% increase in respondents from the previous survey, with 2402 questionnaire responses received and 117 interviews conducted.
87%of respondents prefer international arbitration for resolving cross-border disputes
London top choice
London is the top choice seat overall for respondents. London and Singapore both rank among the top five seats for each of the six regions in which respondents principally practise or operate.
The ICC Arbitration Rules top the ranking, with 39% of all respondents including them as one of their choices, closely followed by the HKIAC Rules and the SIAC Rules (each attracting votes from 25% of respondents).
Both counsel and arbitrators are responsible for behaviour that negatively impacts efficiency in arbitration. Respondents called for greater proactivity and courage from both counsel and arbitrators to address this. On enforcement of awards, the majority of respondents believe annulled awards should not be enforceable.
Respondents are conscious of the challenge of balancing confidentiality and transparency where public interest issues may arise in arbitrations. Confidentiality remains key, particularly in commercial arbitrations not involving State parties.
Public access to arbitration
90%of respondents do not favour making hearings public in commercial arbitration
59%of respondents support publishing redacted awards in ISDS case
AI as game changer
Use of AI is expected to grow significantly over the next five years, driven by the potential for efficiencies. Principal current uses of AI include factual and legal research, data analytics and document review. AI assistance in drafting and in evaluating legal arguments is also expected to increase, but there are concerns around accuracy, ethical issues, and AI's ability to handle complex legal reasoning.
AI in international arbitration
90% of respondents expect to use AI for research, data analytics and document review
54% say saving time is the biggest driver for use of AI
51% say the main obstacle is the risk of AI errors and bias
Chapters
Executive Summary
The 2025 International Arbitration Survey questionnaire was completed by 2,402 respondents, nearly doubling the response rate from the previous survey held in 2021. This is the largest and most representative pool of participants yet.
An overwhelming majority (87%) of respondents continue to choose international arbitration to resolve cross-border disputes, either as a standalone mechanism (39%) or with Alternative Dispute Resolution (ADR) (48%). There has been a slight decline in preference for arbitration combined with ADR compared to previous surveys.
The five most preferred seats for arbitration are London, Singapore, Hong Kong, Beijing and Paris. London and Singapore rank among the top five seats for each of the six regions in which respondents principally practise or operate.
The five most preferred sets of arbitral rules are the ICC Rules, HKIAC Rules, SIAC Rules, LCIA Rules and UNCITRAL Rules. The ICC Rules are in the top three choices for each of the six regions.
Geopolitical or economic sanctions impact arbitration proceedings in various ways: 30% of respondents chose a different arbitral seat; 27% faced administrative and payment challenges; 25% experienced difficulty finding counsel or arbitrators able to participate, raising concerns about access to justice.
Award debtors generally voluntarily comply with arbitral awards, particularly when they are private parties rather than States or state entities. Unsurprisingly, the highest level of voluntary compliance is seen with consent awards, with only 8% of respondents reporting they are ‘never’ or ‘rarely’ complied with.
The majority of respondents (61%) consider that awards annulled at the seat should not be enforceable in other jurisdictions. Still, many suggest it might be advisable to allow enforcement of an award that was annulled.
The behaviours that most negatively impact efficiency in arbitration include adversarial approaches by counsel (24%), lack of proactive case management by arbitrators (23%) and counsel over-lawyering (22%). Respondents called for greater proactivity and courage from both counsel and arbitrators to address inefficiencies.
The most effective mechanisms for enhancing efficiency were expedited arbitration procedures (50%) and early determination procedures for manifestly unmeritorious claims or defences (49%). While expedited procedures are particularly useful in less complex cases, their success depends on the tribunal’s readiness to make swift decisions.
Respondents enjoyed excellent experiences with mechanisms for expediting arbitrations, such as expedited arbitration procedures embedded in arbitral rules and paper-only arbitration. Most would be willing to use them again. They also acknowledged the need to balance efficiency with procedural fairness.
The decision to choose expedited procedural mechanisms is driven by pragmatic concerns, principally the desire to minimise costs (65%) and ensure rapid resolution (58%), particularly for disputes of lower value or complexity.
Only one third of any of our respondents have encountered the various categories of public interest issues in their arbitrations. There is, however, an expectation that environmental and human rights issues will increasingly become present in both purely commercial arbitrations and disputes involving States or state entities.
The primary advantages of international arbitration for resolving disputes involving public interest issues include the ability to select arbitrators with relevant experience or knowledge (47%) and to avoid specific legal systems or national courts (42%).
The most significant challenges in arbitrating disputes involving public interest issues include balancing confidentiality and transparency (47%) and the lack of arbitral tribunal power over third parties (46%).
Confidentiality of arbitration in this context can be viewed as both beneficial for delicate or reputation-sensitive disputes, and problematic for the potential to shield improper conduct of state entities from public scrutiny.
Respondents are divided on whether international arbitration proceedings should be ‘open’ to the public. The vast majority favour maintaining confidentiality, especially in commercial arbitration. There is, however, greater support for publication of redacted awards, especially for disputes involving States or state entities.
Use of AI is expected to grow significantly over the next five years, driven by the potential for efficiencies. Principal current uses of AI include factual and legal research, data analytics and document review. AI assistance in drafting and in evaluating legal arguments is also expected to increase, but significant concerns persist about accuracy, ethical issues and AI’s ability to handle complex legal reasoning.
The principal drivers for the increased use of AI in international arbitration are saving party and counsel time (54%), cost reduction (44%) and reduction of human error (39%).
The principal obstacles to the greater use of AI in international arbitration are concerns about errors and bias (51%), confidentiality risks (47%), lack of experience (44%) and regulatory gaps (38%).
Respondents largely approve of the use of AI by arbitrators to assist in administrative and procedural tasks. There is strong resistance, however, to its use for tasks requiring the exercise of discretion and judgment, which are fundamental aspects of the mandate given to arbitrators.
The general consensus is that, over the next five years, international arbitration and its users will adopt, and adapt to, AI. Respondents predict that arbitrators will increasingly rely on AI (52%) and that new roles to work with AI will emerge (40%). The enthusiasm for greater use is tempered, however, by the desire for transparency, clear guidelines and training on the use of AI.
The School of International Arbitration of Queen Mary, University of London would like to thank White & Case LLP for its financial and substantive support, in particular Mona Wright, Julie McCoy and Clare Connellan in London, who coordinated the project on behalf of White & Case and provided invaluable input. We are also grateful for the guidance of Birgit Kurtz in New York and the assistance of the White & Case Business Development, Marketing Communications and Creative Services teams.
We would further like to thank our External Focus Group for their feedback on earlier versions of the questionnaire and methodology, including (in alphabetical order): Mr. Juan Pablo Argentato (ICC), Ms. Nadya Berova (Barrick Gold Corporation), Mr. David Bigge (US Department of State), Ms. Alexandra Couvadelli (Gard), Ms. Olivia de Patoul (Le Bureau), Mr. Werner Eyskens (Crowell & Moring LLP), Ms. Caroline Falconer (SCC), Mr. Karl Hennessee (Airbus), Ms. Martina Polasek (ICSID), Dr. Veronika Korom (ESSEC Business School, Paragon) Ms. Joanne Lau (HKIAC), Mr. Luis M. Martinez (ICDR-AAA), Mr. Maxim Osadchiy (Osadchiy Dispute Resolution LLP; QMUL), Dr. Monique Sasson (Arbitra; DeliSasson), Dr. Laurence (Larry) Shore (Seladore Legal), and Ms. Yukiko Tomimatsu (Nishimura & Asahi).
We are also grateful for the assistance of several organisations and individuals who helped promote the survey, in particular: Africa Arbitration, Arbitral Women, Kluwer Arbitration, Transnational Dispute Management/OGEMID, Global Arbitration Review, Thomson Reuters, LexisNexis, Mr. Jonathan Brierley, Dr. Rémy Gerbay, Professor Emeritus (and Head of SIA) Julian Lew KC, Professor Loukas Mistelis and Professor Maxi Scherer.
Most importantly, we would like to thank all stakeholders (private practitioners, arbitrators, in-house counsel, academics, third-party funders, government officials and other respondents) who generously gave their time in completing the questionnaire and/ or being interviewed.
An overwhelming majority (87%) of respondents continue to choose international arbitration to resolve cross-border disputes, either as a standalone mechanism (39%) or with Alternative Dispute Resolution (ADR) (48%). There has been a slight decline in preference for arbitration combined with ADR compared to previous surveys.
The five most preferred seats for arbitration are London, Singapore, Hong Kong, Beijing and Paris. London and Singapore rank among the top five seats for each of the six regions in which respondents principally practise or operate.
The five most preferred sets of arbitral rules are the ICC Rules, HKIAC Rules, SIAC Rules, LCIA Rules and UNCITRAL Rules. The ICC Rules are in the top three choices for each of the six regions.
Geopolitical or economic sanctions impact arbitration proceedings in various ways: 30% of respondents chose a different arbitral seat; 27% faced administrative and payment challenges; 25% experienced difficulty finding counsel or arbitrators able to participate, raising concerns about access to justice.
Award debtors generally voluntarily comply with arbitral awards, particularly when they are private parties rather than States or state entities. Unsurprisingly, the highest level of voluntary compliance is seen with consent awards, with only 8% of respondents reporting they are 'never' or 'rarely' complied with.
The majority of respondents (61%) consider that awards annulled at the seat should not be enforceable in other jurisdictions. Still, many suggest it might be advisable to allow enforcement of an award that was annulled.
Arbitration reigns supreme, with or without ADR
We asked respondents for their preferred method of resolving international disputes out of five options: 'international arbitration together with ADR', 'cross-border litigation together with ADR', 'international arbitration' as a standalone option, 'ADR only', or 'cross-border litigation' as a standalone option.1
87%
of respondents prefer to resolve cross-border disputes through international arbitration
In past surveys conducted by Queen Mary University of London (QMUL), arbitration, as either a standalone option or in conjunction with ADR, was consistently selected as the preferred dispute resolution mechanism for cross-border disputes.2 In this latest survey, an overwhelming majority (87%) of respondents once again favour solving international disputes through international arbitration, either together with ADR (48%) or as a standalone mechanism (39%).
Interviewees confirmed that international arbitration remains the preferred mechanism for international disputes. They highlighted their appreciation of the flexibility, expertise, overall speed and efficiency of arbitration, and, most importantly, the enforceability of arbitral awards globally. This survey shows, however, a notable decline in preference for ADR. Previous surveys indicated a steady rise in support for international arbitration combined with ADR (with partiality for that option increasing from 34% in 2015 to 49% in 2018 and peaking at 59% in 2021). This year marks a reversal of that trend. International arbitration as a standalone mechanism was selected by 8% more of the total respondent pool than in our 2021 survey, while the preference for international arbitration with ADR declined by 11% compared to 2021.
Some interviewees expressed concerns that ADR mechanisms, such as expert determination or dispute boards, could be used in a way that challenges the strengths of the opposing party's case. Others considered ADR to be a "waste of time".3 Notwithstanding these concerns, most interviewees acknowledged that using ADR can help reduce costs, especially in the context of continuous contractual relationships and in industries such as shipping or construction, where mechanisms such as dispute adjudication boards are common and are generally considered to be cost-effective.
Preference for ADR may also, to some extent, be influenced by cultural factors. Respondents who principally practise or operate in Europe tend to favour standalone arbitration (51%) over arbitration combined with ADR (42%), whereas respondents from the Asia-Pacific region show a preference for a more collaborative approach to dispute resolution, opting for arbitration with ADR (50%) more than standalone arbitration (37%).4 This finding is echoed in the concern of Asia-Pacific respondents about the negative impact of counsel adopting adversarial rather than collaborative approaches.5
Some interviewees suggested that, where use of ADR has not yielded as positive an experience, this may be more due to concerns about the efficiency of specific ADR processes rather than calling into question the overall value of a more collaborative approach to resolving disputes. This may, in part, explain why the option of international arbitration together with ADR has slightly lost favour among respondents.
The arbitral seat can significantly impact the conduct of arbitration proceedings and the enforcement of arbitral awards. QMUL has explored seat preferences since the 2010 survey,6 offering valuable insights into where arbitration users prefer to arbitrate international disputes and the reasons for their choices.7 This year, we again aimed to explore the seats most preferred by respondents or their organisations, asking respondents to select up to five seats. Choices could be made from a drop-down list8 or by designating other seats in a free text box. Respondents cited no fewer than 117 diverse seats from across the world,9 including, for example, Astana, Dublin, Ho Chi Minh City, Kigali, Mumbai, Rio de Janeiro, Riyadh and Vancouver.
The factors influencing preference for seats, as confirmed by interviewees, were consistent with those singled out by respondents to our previous surveys. These include support for arbitration by local courts, neutrality and impartiality of the local legal system and national arbitration law and a strong enforcement track record.10
Analysing seat preferences by regional subgroups where respondents principally practise or operate reveals an interesting dual trend of some seats being selected by respondents across multiple regions, while other seats are particularly favoured by respondents in the regions where those seats are located.
London is ranked first in four out of the six regions and appears in the top four for each regional subgroup. Singapore is also ranked in the top four for each region. Paris is ranked in the top four of all regions except Asia-Pacific. This demonstrates the pan-global influence of each of these seats. Apart from these seats, we see stark differences across the regions.
Respondents in both Europe and Asia-Pacific show strong preferences for seats in their respective regions. In Europe, Geneva and Stockholm feature among the top five preferred seats; as in the 2021 survey, Singapore is the only non-European seat listed in the top five.11 In Asia-Pacific, London is the only non-Asian seat to make the top five, with Hong Kong, Singapore, Beijing and Shenzhen (which replaces Paris compared to the rankings in the 2021 survey12). This suggests that arbitration users in both regions prefer to arbitrate under the laws of jurisdictions closer to home.
A similar trend of preferring seats in respondents' own geographical regions may be observed among North American respondents, although it is less marked. New York now ranks first in the region, compared to third in the 2021 and 2018 surveys, while Washington D.C. appears in the top five for the first time.
In other regions, there is less marked preference for regional seats. Caribbean and Latin American respondents appreciate New York and Miami (which is seen as a "gateway seat" for Latin American disputes). Of seats located in Latin America, São Paulo has moved down from its fourth spot in the 2021 survey to ninth place, on par with Washington D.C.; Lima is the second most cited seat located in the region, and the 14th most popular seat overall of those chosen by Caribbean / Latin American respondents. For Middle East based respondents, Dubai ranks fourth among their top five seats, with interviewees asserting confidence in the jurisdiction, notwithstanding the impact of abolishing the DIFC-LCIA and consequent uncertainties for arbitration in the region. In Africa, Dubai again makes a strong entry as the fifth preferred seat, with Beijing, Shenzhen and Lagos also appearing in the top ten for Africa-based respondents.
Established hubs and new entrants
London remains the most preferred seat globally, chosen by 34% of all respondents. Interviewees praised its reliable track record in upholding arbitral awards, consistent pro-arbitration approach and the efficiency of the judiciary. Despite some concerns raised in the 2018 survey that Brexit might impact the preference of London as a seat,13 both our 2021 survey and our latest findings signal that confidence in London remains high among arbitration users globally.14
34%
London is the most preferred seat globally
London and Singapore are the only seats in the top five in all regions
Singapore's global appeal has been confirmed again, chosen in second place with 31% of the selections by respondents.15 Interviewees singled out the political endorsement of international arbitration in Singapore, with heavy investment in formal legal infrastructure,16 but also judicial support for awards, efficiency and smoothness of procedures "even in cases of complex enforcement proceedings". One interviewee enthused that they had "never found Singapore to be unpredictable".
Hong Kong once again features in the top three, with 31% of respondents including the seat in their answer.17 Interviewees praised the judicial support of the Hong Kong courts and the overall strength and depth of arbitration culture in Hong Kong. Interviewees also noted Hong Kong's privileged status as the "gateway to mainland China", appreciating the ability to enforce Hong Kong-issued awards in mainland China.
Paris ranks fifth. It continues to enjoy strong endorsement globally, although dropping one place from its fourth position in the 2021 survey. The majority of interviewees deemed Paris a "highly reputable", reliable and safe seat, noting the strong pro-arbitration history and approach of the jurisdiction. Some, however, highlighted challenges relating to upholding or enforcing arbitral awards, with a number mentioning recent "controversial annulment decisions" concerning awards made in disputes involving allegations of corruption.
The message from respondents is that consistency is key when assessing how attractive they find a seat. Users want to be sure that they will get what they expect when they choose where to arbitrate their disputes. While these four seats continue to enjoy global favour, however, the overall percentage of respondents that favour each of these seats dropped significantly as compared to our previous surveys. This is accompanied by a rise in popularity of certain other seats that make it to the top ten this year.
Considering the ever-growing practise of arbitration in Asia-Pacific, one interviewee suggested that “arbitration is moving east”
Beijing has now risen to fourth place, ahead of Paris, moving up from seventh place in our 2021 survey.18 Shenzhen, for the first time, has reached sixth place, and Shanghai is now eighth, joining Beijing in the top ten most preferred seats globally. These three seats, together with Hong Kong, were primarily endorsed by respondents practising in Asia-Pacific. Of Asian seats, Hong Kong and Singapore were both in the top ten preferred seats chosen by respondents whose principal regions of practise or operation were outside Asia-Pacific.19 Interviewees noted the increased pro-arbitration stance of the judiciary, the growing levels of experience in arbitration in these regional centres and the increased commercial power of parties from the region. In recognition of this, some Europe and North America-based interviewees indicated they are open to the possibility of considering seats in that region. Others remained more hesitant, noting concerns regarding enforcement in mainland China. Overall, though, considering the ever-growing practise of arbitration in Asia-Pacific, one interviewee suggested that “arbitration is moving east”.
The seats that complete the global top ten are New York, Geneva and Dubai. Other popularly chosen seats following the top ten include Guangzhou, Stockholm, Zurich, Washington D.C., The Hague, Miami, Vienna, Frankfurt, Madrid, Houston and New Delhi.22
Which arbitration rules are preferred?
66
different sets of arbitral rules were selected
We asked respondents to indicate their or their organisation's most preferred sets of arbitration rules from a drop-down list21 or in a free text form. They could specify up to five different sets of rules. Respondents cited 66 different sets of ad hoc, administered institutional and non-administered institutional rules, indicating the diversity of choice enjoyed by users of arbitration.22
The regional outlook
Breaking down the results by the regions in which respondents principally practise or operate leads to interesting discoveries. While some sets of rules appear in the top five for respondents in multiple regions, others are more endorsed by respondents in the regions where the providers of those rules are based.
The ICC Rules are the only ones represented in all regions, taking the top position in all apart from Asia-Pacific. The SIAC Rules rank in the top five for all regions apart from the Caribbean / Latin America. The UNCITRAL Rules and the LCIA Rules also enjoy global popularity, both appearing in the top five for all regions apart from Asia-Pacific. The ICSID Rules rank in the top five for Africa, Caribbean / Latin America and Europe-based respondents.
Asia-Pacific respondents offer a marked preference for rules of providers based in the region. The HKIAC Rules have gained in favour among Asia-Pacific respondents as compared to the institutional rules preferred by Asia-Pacific respondents in our 2021 Survey, where the HKIAC Rules ranked third, behind the SIAC and ICC Rules and on a par with the LCIA Rules.23 The CIETAC Rules and SCIA (Shenzhen) Rules are also particularly favoured by Asia-Pacific users.
Also notable is the prevalence of the AAA/ICDR Rules for both North American and Caribbean / Latin American respondents, while the DIAC Rules are in the top five choices for Middle East respondents.
Globally, the ICC Arbitration Rules top the ranking with 39% of all respondents including it as one of their choices, closely followed by the HKIAC Rules and SIAC Rules (each attracting votes from 25% of respondents). The LCIA Rules and the UNCITRAL Arbitration Rules close out the top five. As in our previous surveys, interviewees confirmed that reasons for preferring specific institutional rules were influenced by the general reputation of the institution and level of administration.23 Choices of sets of ad hoc rules were, again, inspired by their flexibility and the ability to customise options to user needs.25
The ICC Arbitration Rules are highly regarded, with many interviewees highlighting their established reputation and ease of use for arbitrators and counsel, as well as the support of the Secretariat. Some interviewees expressed reservations regarding the monetary limit for expedited arbitration and the advance on costs, suggesting that these could be based on overstated claim values.
The SIAC Rules were lauded for being innovative, responsive to user needs and, by some, for making arbitration confidential by default. The efficiency of the emergency arbitration process was also praised. Others, however, expressed concerns more generally about a degree of "formalisation" which had a negative impact on the speed of proceedings.
Interviewees commended the sense of innovation in the HKIAC Rules, as well as the "light touch" approach of the HKIAC Secretariat and its ability to perform its administrative functions, especially in relation to sanctions-related disputes.26 Some indicated that they did not perceive particular advantages in selecting the HKIAC Rules over others, unless they had a need to enforce awards or interim measures in mainland China.
The LCIA Rules come in fourth, with interviewees describing them as self-explanatory, "more literate and better written" and "straightforward". Some judged the institution positively for its hourly-rate basis for case administration and arbitrators' fees, although others found this system less favourable for complex disputes.
Other institutional rules were generally well received, with numerous interviewees indicating a degree of "parallelism" between these and the rules offered by more prominent and 'global' institutions, in that they did not perceive significant differences between them. A few interviewees, however, expressed regret for the resulting lack of diversity.
The UNCITRAL Rules finished fifth overall.27 Many respondents confirmed their flexibility, suitability for state-related disputes and the option to have disputes administered by institutions, including the PCA, which was praised for its expert handling of UNCITRAL proceedings.
Certain industries have long preferred ad hoc arbitration or specialised sets of arbitration rules tailored to the needs of industry participants. Some of those selected by respondents, and positively mentioned by interviewees, include the London Maritime Arbitrators Association Terms, the Society of Maritime Arbitrators New York Rules, the Singapore Chamber of Maritime Arbitration Rules, and other specialist rules such as the Grain and Feed Trade Association Rules, World Intellectual Property Organization Rules, and Nordic Offshore and Maritime Arbitration Association Rules.
Arbitration amid sanctions: Access denied?
We asked respondents whether geopolitical or economic sanctions imposed on a party or other participant have had an impact on their arbitration proceedings. Respondents were provided with a range of different types and degrees of impact and were asked to select as many as applied; there was also an 'other' option with a free text box. While many respondents had no experience of sanctions affecting their proceedings, or answered that there had been 'no significant impact' (28%),28 the responses from practitioners who did have such experiences provide intriguing insights.
Governments do not think of arbitration when drafting sanctions. We must comply with the rule of law even when it is a ‘necessary evil’
30%
of respondents chose a different seat due to sanctions
30% of respondents who answered the question said they chose a different seat to ensure that their dispute could be arbitrated. Many interviewees highlighted Dubai, Hong Kong and Singapore as increasingly preferred arbitral seats for disputes impacted by sanctions. Some also cited difficulties in arbitrating such disputes in popular European and US seats. Challenges identified related to banking restrictions, non-responsive respondents and the potential for anti-suit injunctions being acquired in sanctioned jurisdictions by adverse parties.
27% of respondents said they faced administrative challenges. A primary issue was the inability to participate in proceedings, particularly due to the difficulty in obtaining approval from banks to receive money from, or pay money to, a party subject to, or from a state under, sanction. Respondents highlighted that, even when a licence or exemption is obtained, the obstacles to arbitrating or participating in an arbitration with a sanctioned party can still be substantial. Arbitrators and counsel highlighted the challenges of taking on cases due to factors such as nationality, banking restrictions and especially the potential reputational risks.
Respondents encountered a range of obstacles when it came to satisfying awards or settling disputes: 18% noted the difficulty of obtaining interim relief as an effect of sanctions, while 16% experienced challenges in enforcement against award debtors. Interviewees were concerned about the potential risk that domestic courts may exercise discretion in enforcing awards that were issued in jurisdictions they consider 'unfriendly'. Even where parties were inclined to be cooperative, 14% of respondents found it was more difficult for award debtors to voluntarily satisfy awards, and 12% said it was more difficult to agree settlement terms.
Only 17% of respondents said they had chosen different arbitral rules, while 12% found the institution or appointing authority was unable to accept the mandate. It was noted, however, that some arbitral institutions had helpfully obtained licences or exemptions from authorities in the jurisdictions in which they are based (or, in some cases, from the EU) to handle disputes impacted by sanctions.
Perhaps one of the most far-reaching impacts was the difficulty experienced by 25% of respondents in finding counsel to represent a sanctioned party. Respondents who principally practise or operate in Europe (32%) encountered the most difficulty in this regard. Some interviewees expressed the view that arbitrations involving sanctioned parties should not take place at all and indicated that they would decline arbitrator appointments or advisory requests. Many others did, however, raise concerns about derogation from the principles of access to justice and equality of arms in situations where counsel declines to represent a party due to sanctions-related and reputational concerns. As one interviewee put it, "Governments do not think of arbitration when drafting sanctions. We must comply with the rule of law even when it is a 'necessary evil'".
Voluntary compliance with awards: Reality v. myth?
Enforceability of arbitral awards has long been considered one of the most valuable characteristics of international arbitration.29 While enforcement can be pursued using a variety of mechanisms, depending on factors such as where and under which regimes awards are issued and subsequently sought to be enforced, we aimed to explore respondents' experiences in practice with voluntary compliance by award debtors. We asked respondents to describe their experience of voluntary compliance in four different circumstances: in ICSID arbitrations when the award debtor is a State; in non-ICSID arbitrations when the award debtor is a State or state entity; in non-ICSID arbitrations when the award debtor is a private entity or individual; and when the award was a consent award.30 Respondents ranked their experiences of degree of voluntary compliance on a five-point scale from 'never' to 'almost always'.
92%
of respondents said consent awards are generally complied with
We distinguished between award debtors that are private parties and those that are States or state entities, due to enforcement hurdles against the latter, such as the availability of state immunity.
For ICSID arbitrations involving State award debtors, voluntary compliance was seen reasonably frequently: 11% of respondents said States 'almost always' comply and 23% found it happens 'often', although 40% put the occurrence of voluntary compliance no higher than 'sometimes'. The outlook was decidedly less rosy, however, for almost a quarter of respondents: 18% found States 'rarely' complied voluntarily and 8% answered that States 'never' comply, with some interviewees noting an increase in non-compliance in ICSID arbitrations.
The rates of voluntary compliance seen in non-ICSID arbitrations when the award debtor is a State or state entity are strikingly similar to the findings for ICSID arbitrations. This is despite the difference in enforcement mechanisms used when the award debtor chooses not to voluntarily satisfy the award.31
For non-ICSID cases when the award debtor is a private entity or individual, experience of voluntary compliance appears to be greater than where a State is the debtor. Only 12% found voluntary compliance happened 'rarely' and 4% 'never.' This suggests private entities are more inclined to voluntarily comply with awards. Interviewees noted that voluntary compliance often indicates a mutual interest in reaching an outcome quickly, with one stating, "If compliance is voluntary, it shows that both parties are interested in a quick resolution and sufficiently mature to do away with the delay." Another pointed out that it "all depends on how well versed the companies are in international arbitration" and "how expensive it is to fight the award".
The results suggest that voluntary compliance with arbitral awards is more common in cases where the award debtor is a private entity or individual. State entities, whether in ICSID or non-ICSID settings, tend to show slightly lower levels of voluntary compliance. An interviewee observed that, "Some government officials would rather go through resisting enforcement than simply comply with the award." A few pointed out the challenges of enforcing awards against state entities in their own domestic courts. Others suggested that States or state entities may be more open to negotiating the award amount than to negotiate a pre-award settlement.
In cases of consent awards, it is perhaps unsurprising that 43% of respondents reported that debtors 'almost always' comply and 28% said they 'often' comply. Even then, and despite this purported mutual consent, voluntary compliance is not always assured, with a few finding it 'rarely' (5%) or 'never' (3%) occurred.
The results should, to some extent, be read in the context of the fact that, although respondents were instructed to answer the question based on experience, some interviewees admitted that their answers were influenced by their perceptions rather than actual experience. Even single instances of non-compliance could significantly colour their overall assessments. The findings reflect, perhaps, the frustration felt by award creditors who are faced with additional hurdles to collect on awards. Consequently, the actual rate of voluntary compliance may be higher than respondents perceive it to be.
A majority believes that the seat rules the award
We asked whether awards set aside, annulled or suspended at the seat should be enforceable in other jurisdictions.
The price to be paid for having a functioning system is that you accept that a few accidents happen
70%
of counsel think annulled awards should not be enforceable
The outcome of the 'vote' is overwhelmingly against the proposal. The majority of counsel (70%), in-house counsel for governments (76%) and for private entities (65%) oppose the proposal. Arbitrators also oppose being able to enforce awards annulled at the seat (58%). Other subgroups across the respondent pool are equally torn between the two sides of the debate: academics and tribunal secretaries marginally support the proposition (51% and 53%, respectively) but only 49% of arbitral institution staff back it. Interestingly, 64% of respondents who operate mainly in Asia-Pacific were against the proposal, compared to 54–58% in other regions. The only region where there was marginally more support in favour of the proposal was Latin America (52%).
Respondents opposing enforceability of awards annulled at the seat present arguments in line with a territorial understanding of international arbitration, where the validity of an award is determined by the laws of the seat where it was rendered. They stress that parties are able to deliberately choose the seat, and it would be an integral part of their "risk analysis" to "put themselves at the mercy of potential setting aside actions". One interviewee regarded the non-enforceability of annulled decisions as the "greatest policy issue", cautioning that being able to challenge annulments in other jurisdictions would incur substantial costs and make cases extremely lengthy. While many interviewees acknowledged the risk of questionable annulment decisions, another stated that, “The price to be paid for having a functioning system is that you accept that a few accidents happen”.
Respondents favouring the ability to enforce awards notwithstanding their annulment at the seat highlight legal and practical considerations. Many interviewees argued that an award, once rendered, becomes a transnational instrument that is not 'tied' to the seat of the arbitration. Accordingly, annulment at the seat should not affect the parties' ability to enforce the award in other jurisdictions. Others emphasised pragmatic considerations, noting that users ultimately want their awards enforced. Some mentioned party autonomy, arguing that users have ousted the jurisdiction of domestic courts to the benefit of autonomous arbitration. Many believed that granting autonomy to an arbitral award is advantageous to international arbitration in the long run. Fascinatingly, respondents with more experience were somewhat more likely to support the enforceability of annulled awards although, overall, the greater number was still against the proposition.32
Remarkably, proponents on both sides of the debate cited the 1958 New York Convention in support of their view. Many interviewees also noted that, in some cases, it might be advisable to allow enforcement of an award that was annulled under questionable circumstances. The prevailing view of interviewees was that they would have preferred an "it depends" option, citing certain circumstances in which "fundamental fairness" may call for a different answer.
1 We defined ADR as including, for example, mediation, conciliation, adjudication and disputes boards, but excluding cross-border litigation or international arbitration. 2 2021 International Arbitration Survey, p.5: 90% of respondents showed a clear preference for arbitration as their preferred method of resolving cross-border disputes, either as a standalone method (31%) or in conjunction with ADR (59%). In the 2018 International Arbitration Survey (pp.5-6), 97% of respondents chose arbitration as their preferred method of resolving cross-border disputes, either as a stand-alone method (48%) or in conjunction with ADR (49%); see also 2015 International Arbitration, p.5. 3 See below pp. 17-18 and Chart 10; despite the apparent (although waning) popularity of international arbitration in combination with ADR, only 1% of respondents favoured multi-tiered dispute resolution processes with mandatory ADR as a means of efficiently resolving disputes. 4 Respondents were asked to identify the region(s) in which they principally practice or operate. They could specify multiple regions. Results cited for regional groups include the responses of all respondents who selected that region, some of whom may also have selected other regions. 5 See below p.16; 23% of Asia-Pacific respondents consider that the most negative behaviour impacting efficiency is counsel focusing on adversarial rather than collaborative approaches. 6 2010 International Arbitration Survey, p.19. 7 These findings reflect the views of respondents to the survey and do not purport to reflect the number of arbitrations held at any given seat. 8 Each seat included in the drop-down list was selected by at least 1% of respondents in the 2021 International Arbitration Survey (question 10). 9 An increase from the 2021 International Arbitration Survey, p.6; more than 90 seats were cited that year. 10 See 2021 International Arbitration Survey, p.8 (Chart 4); 2018 International Arbitration Survey, pp.10-11 (Chart 8); see also 2015 International Arbitration Survey, p.14 (Chart 10); 2010 International Arbitration Survey, p.18 (Chart 14). 11 2021 International Arbitration Survey, p.7 (Chart 3). 12 2021 International Arbitration Survey, p.7 (Chart 3). 13 2018 International Arbitration Survey, pp.11-12 (Chart: 9), a minority of 37% of respondents feared Brexit would have a negative impact on the use of London as a seat. 14 London received 54% of all selections in the 2021 survey, 64% in 2018 and 47% in 2015. See 2021 International Arbitration Survey, p.6 (Chart 2), 2018 International Arbitration Survey, p.9 (Chart 6), 2015 International Arbitration Survey, p.12 (Chart 8). 15 Singapore came on par with London in first place in 2021 (54% of respondents), third in 2018 (39% of respondents), and fourth in 2015 (19% of respondents). See 2021 International Arbitration Survey, p.6 (Chart 2), 2018 International Arbitration Survey, p.9 (Chart 6), 2015 International Arbitration Survey, p.12 (Chart 8). 16 Judicial and political ability to adapt to changing user needs was noted as a desirable trait for seats in our 2021 International Arbitration Survey, p.8. 17 Hong Kong was third in 2021 (50%), fourth in 2018 (28%), and third in 2015 (22%). See 2021 International Arbitration Survey, p.6 (Chart 2) 2018 International Arbitration Survey, p.10 (Chart 7); 2015 International Arbitration Survey, p.12 (Chart 8). 18 See 2021 International Arbitration Survey, p.6 (Chart 2). 19 See also pp.6-7 and Chart 2 above on seat preferences by regional subgroups, and p.38, Chart 26 below for percentages of respondents who selected each region as one in which they principally practise or operate. 20 The respective percentages are as follows: Guangzhou, China: 6%; Stockholm, Sweden: 6%; Zurich, Switzerland: 5%; Washington D.C., USA: 4%; The Hague, Netherlands: 4%; Miami, USA: 3%; Vienna, Austria: 3%; Frankfurt, Germany: 3%; Madrid, Spain: 2%; Houston, USA: 2%; New Delhi, India: 2%. 21 Each set of arbitration rules included in the drop-down list was selected by at least 1% of respondents in the 2021 International Arbitration Survey (questions 12 and 13). 22 These findings reflect the views of respondents to the survey and do not purport to reflect the number of arbitrations carried out under any given set of rules. 23 2021 International Arbitration Survey, p.11 (Chart 7). 24 2021 International Arbitration Survey, p.10; 2018 International Arbitration Survey, pp.13-14; 2015 International Arbitration Survey, p.18. 25 2021 International Arbitration Survey, p.9; 2018 International Arbitration Survey, p.15. 26 For instance, in taking advances on costs from parties, or paying out fees to arbitrators. See further p.11. 27 In our previous surveys, the UNCITRAL Rules consistently ranked first among ad hoc arbitration rules: 2021 International Arbitration Survey, p.9 (Chart 5); 2018 International Arbitration Survey, p.15 (Chart 14). 28 Some interviewees clarified that they had selected this answer option to indicate that their arbitrations did not involve any sanctions-related circumstances, as opposed to meaning that any sanctions-related circumstances that existed did not impact the conduct of the proceedings. 29 2018 International Arbitration Survey, p.7 (Chart 3); 2015 International Arbitration Survey, p.6 (Chart 2). 30 We distinguished between ICSID arbitrations and proceedings under other arbitral rules due to the specific enforcement mechanism for ICSID awards compared to other, general enforcement mechanisms (such as the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) which are not limited to, or associated with, specific sets of arbitral rules. 31 In ICSID arbitrations, 8% of respondents found States ‘almost always comply’, 25% chose ‘often’ and 43% said it happens ‘sometimes’. Again, almost a quarter of respondents found States ‘rarely’ (19%) or ‘never’ (6%) complied. 32 Only 35% of respondents who have limited recent experience of arbitration proceedings (0 to 10 arbitration proceedings in the past five years) were in favour of the proposal, compared to 45% of respondents with significant experience of arbitration proceedings (30 and more in the last five years).
White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.
This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
View full image: Regions in which respondents principally practice or operate (PDF)
View full image: Preferred seats by region (PDF)
View full image: Most preferred seats (PDF)
View full image: Preferred arbitral rules by region (PDF)
View full image: Most preferred arbitral rules (PDF)
View full image: Enforcement (PDF)
View full image: Efficiency (PDF)
View full image: Chart 1: What is your preferred method of resolving international disputes? (PDF)
View full image: Chart 2: Top five most preferred seats by region (PDF)
View full image: Chart 3: Most preferred seats globally (PDF)
View full image: Chart 4: Top five most preferred sets of arbitration rules by region (PDF)
View full image: Chart 5: Most preferred sets of arbitration rules globally (PDF)
View full image: Chart 6: How have sanctions imposed on a party or participant impacted the arbitration proceedings?
View full image: Chart 7: How often do award debtors voluntarily comply with arbitral awards? (PDF)
View full image: Chart 8: Should awards that are set aside, annulled or suspended at the seat be enforceable in other jurisdictions? (PDF)