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1、ITitle intial caps only goes here2021 International Arbitration Survey:Adapting arbitration to a changing worldContentsExecutive summaryPage 2International arbitration:Current choices and future adaptationsPage 5Diversity on arbitral tribunals:Whats the prognosis?Page 15Use of technology:The virtual
2、 realityPage 20Sustainability and information security:Opportunities and challengesPage 28AppendicesMethodologyPage 34School of International Arbitration,Queen Mary University of LondonPage 37White&Case International ArbitrationPracticePage 38Truly globalPage 39AcknowledgementsPage 40Attorney Advert
3、isingThe field of international arbitration is dynamic by nature.Its hallmarks of flexibility and partyautonomy allow it to develop and adapt in response to the needs of its users.Recenttimes have seen an increased focus on drivers of change such as diversity,technology,environmental considerations
4、and information security.The COVID-19 pandemic has also presented challenges to the way in which the international arbitration community interacts.The 2021 International Arbitration Survey,titled Adapting arbitration to a changing world,explores how international arbitration has adapted to these cha
5、nging demands and circumstances.The survey investigates trends in user preferences and perceptions,and identifies opportunities for international arbitration to adapt more and better.This edition saw the widest-ever pool of respondents,with 1218 questionnaire responses received and 198 interviews co
6、nducted.Views were sought from a diverse pool of participants in the international arbitration sphere,including in-house counsel from both public and private sectors,arbitrators,private practitioners,representatives of arbitral institutions and trade associations,academics,experts and third-party fu
7、nders.White&Case is proud once again to have partnered with the School of International Arbitration.TheSchool has produced a study which provides valuable insights into how international arbitration has adapted,and what more needs to be done by and for its diverse stakeholders.I am confident thatthi
8、s survey will be welcomed by the international arbitration community.We thank Norah Gallagher and Dr Maria Fanou(White&Case Postdoctoral Research Fellow in International Arbitration)for their exceptional work,and all those who generously contributed their time and knowledge to this study.It is with
9、a sense of relief that I present the 2021 International Arbitration Survey on Adaptingarbitration to a changing world.In fact,that is exactly what happened just after we started work on the draft questionnaire in early 2020the world changed due to COVID-19.Wecould not have known at that time quite h
10、ow big an impact the pandemic would have globally.In such uncertain times,we had to postpone the launch of the survey for several months.We had no way toassess how long we should wait to start and how it might impact on the survey results.The strength of the survey is entirely based on the level of
11、participation by the arbitration community.It was an anxious time to see whether COVID-19 would adversely impact the numbers.I was truly grateful for the support of the international arbitration community as the largest number of people ever completed the surveymore than 1,200.Dr Fanou also intervie
12、wed almost 200 candidates from 29 countries to provide nuance and context for some of the findings.We thank all ofthe respondents for making this survey so comprehensivea true success despite the pandemic.This is the 12th empirical survey conducted by the School of International Arbitration at Queen
13、MaryUniversity of London and the fifth in partnership with White&Case LLP.The results reflect an interesting snapshot of change in arbitral practice during a time of global upheaval.The arbitration community had to adapt quickly,and some of these changes will remain after thepandemic recedes.Virtual
14、 hearings and increased reliance on technology are clear examples of changes that will persist.It has been a challenging yet rewarding process,but we are pleased with the interesting results.This survey may also prompt further discussion on future changes to arbitral practice and procedural rules.20
15、21 International Arbitration Survey:Adapting arbitration toa changing worldAbby Cohen SmutnyGlobal Head of International Arbitration Practice Group,White&Case LLPNorah GallagherDeputy Director,School of International ArbitrationCentre for Commercial Law Studies,Queen Mary University of London2White&
16、CaseInternational Arbitration:Current choices and futureadaptations International arbitration is the preferred method of resolving cross-border disputes for 90%of respondents,either on a stand-alone basis(31%)or in conjunction with ADR(59%).The five most preferred seats for arbitration are London,Si
17、ngapore,HongKong,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 arbitrate and arbitral awards are the key adaptations that would make other arbitral seat
18、s moreattractive.The UNCITRAL Arbitration Rules are the most popular regime for adhocarbitration.The five most preferred arbitral institutions are the ICC,SIAC,HKIAC,LCIA and CIETAC.Respondents chose administrative/logistical support for virtual hearings as their top choice adaptation that would mak
19、e other sets of arbitration rules or arbitral institutions more attractive,followed by commitment to a more diverse pool of arbitrators.Arbitration users would be most willing to do without unlimited length of written submissions,oral hearings on procedural issues and document production if this wou
20、ld make their arbitrations cheaper orfaster.Diversity on arbitral tribunals:Whats theprognosis?More than half of respondents agree that progress has been made in terms of gender diversity on arbitral tribunals over the past three years.However,less than a third of respondents believe there has been
21、progress in respect of geographic,age,cultural and,particularly,ethnicdiversity.Respondents 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 divers
22、ity 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.Others consider the enquiry redundant,on the basis that the call for more diversity does not require further justification.59%of
23、respondents emphasise the role of appointing authorities and arbitral institutions in promoting diversity,including through the adoption of express policies of suggesting and appointing diverse candidates as arbitrators.However,the significance of the role of counsel is highlighted by about half of
24、respondents,who included commitment by counsel to suggesting diverse lists of arbitrators to clients amongst their answers.In-house counsel also bear the onus of encouraging diversity through their choice of arbitrators.Many respondents feel that opportunities to increase the visibility of diverse c
25、andidates should be encouraged through initiatives such as education and promotion of arbitration in jurisdictions with less developed international arbitration networks(38%),more mentorship programmes for less experienced arbitration practitioners(36%)and speaking opportunities at conferences for l
26、ess experienced and more diverse members of the arbitration community(25%).Buildingvisibility is particularly important in light of the general perception that users prefer arbitrator candidates about whom they have some knowledge or with whom theyhave previous experience.The general consensus among
27、st respondents is that caution should be exercised when exploring whether adaptations in arbitral practice experienced during the COVID-19 pandemic may have an impact on promotion of diversity objectives,as it can go both ways.Virtual events,meetings and hearings may facilitate participation by more
28、 diverse contributors,but this may be hindered by unequal access to technology and the challenges of building relationships remotely.Executive summary32021 International Arbitration SurveyUse of technology:Thevirtual reality Technology continues to be widely used in international arbitration,particu
29、larly videoconferencing and hearing room technologies,but the adoption of AI stilllagsbehind other forms of IT.The increase in the use of virtual hearing rooms appears to be the result of how the practice of arbitration has adapted in response to the COVID-19 pandemic,as users have been forced to ex
30、plore alternatives to in-person hearings.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.Recent(an
31、d,in many cases,new)experience of virtual hearings has offered an opportunity to gauge users perception of this procedural adaptation.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
32、 technology and greater procedural and logistical flexibility.Aspects that gave respondents most cause for concern included the difficulty of accommodating multiple or disparate time zones,the impression that it is harder for counsel teams and clients to confer during hearing sessions and concerns t
33、hat it mightbe more difficult to control witnesses and assess their credibility.The fallibility of technology and the phenomenon of screen fatigue were also cited.Going forward,respondents would prefer a mix of in-person and virtual formats for almost all types of interactions,including meetings and
34、 conferences.Wholly virtual formats are narrowly preferred for procedural hearings,but respondents would keep the option of in-person hearings open for substantive hearings,rather than purely remote participation.Sustainability and information security:Opportunities andchallenges Respondents show a
35、willingness to adopt paperless practices,such as production of documents in electronic rather than hard-copy form;providing submissions,evidence and correspondence in electronic format;andthe use of electronic hearing bundles.Many respondents would also welcome more green guidance,both from tribunal
36、s and in the form of soft law.While the environmental benefits of remote participation rather than in-person participation are recognised,this this is not the primary motivation behind the decision as to whether interactions should be remote or in-person.There appears to be increasing awareness of t
37、he need to embrace greener practices.However,the overall message from respondents is that the reduction of environmental impact is a welcome side-effect of their choices throughout the arbitral process,rather than a priority in and of itself.Even though users generally acknowledge data protection is
38、sues and regulations may have an impact on the conduct of arbitrations,the extent and full implications of that impact are not understood by all.34%of respondents predicted that data protection issues and regulations have limited impact at present but this is likely to increase.Only around a quarter
39、 of respondents said they have frequently or always seen cybersecurity measures being put in place in their international arbitrations.The majority(57%)encountered such measures in less than half of theircases.The IT security measures and tools most used or recommended by respondents include cloud-b
40、ased platforms for sharing electronic or electronically submitted data;limiting access to prescribed individuals;data encryption;and access controls,e.g.,multi-factor authentication.Almost half of the respondents recommended the use of secure/professional email addresses for arbitrators rather than
41、web-based email providers(i.e.,no Gmail,Yahoo,Hotmail,etc.).Respondents appreciate being able to rely on specialist IT support and systems to ensure robust cybersecurity protections are in place.Although there are encouraging signs that users are mindful of cybersecurity issues and the need to addre
42、ss them,there is nonetheless ample scope for more engagement on this front.52021 International Arbitration SurveyInternational arbitration together with ADR:The winning formulaWe asked respondents what their preferred method of resolving cross-border disputes would be post COVID-19.Respondents were
43、asked to choose one of five options:international arbitration together with ADR,cross-border litigation together with ADR,international arbitration as a standalone option,ADR only,and cross-border litigation as a standalone option.We clarified that ADR would include,for example,adjudication,dispute
44、boards,expert determination,mediation and negotiation,but exclude litigation andarbitration.In previous surveys by Queen Mary University of London,arbitration,as either a standalone option or in conjunction with ADR,was consistently selected as the preferred dispute resolution mechanism for cross-bo
45、rder disputes.1 This preference was confirmed again in this survey.In particular,an overwhelming majority of the respondent group(90%)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
46、%).Only an aggregate of 4%is equally split between ADR only and cross-border litigation as standalone options,while 6%indicated a preference for cross-border litigation together with ADR.This years findings once again reveal a noticeable increase over recent years in the overall popularity of arbitr
47、ation used in conjunction with ADR:59%of respondents expressed their preference for this combination,as opposed to 49%in 2018 and only 34%in 2015.2These results reflect an ongoing trend,as confirmed in interviews.Although the question expressly referred to the post-COVID-19 landscape,interviewees ex
48、plained that their answers were not influenced by the pandemic.The factors that influenced their choices remained largely the same.This is why they expected to continue to use the same dispute resolution options as they were using pre-pandemic.As an immediate International arbitration:Current choice
49、s and futureadaptationsSummary International arbitration is the preferred method of resolving cross-border disputes for 90%of respondents,either on a stand-alone basis(31%)or in conjunction with ADR(59%).The five most preferred seats for arbitration are London,Singapore,Hong Kong,Paris and Geneva.Gr
50、eater 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 arbitrate and arbitral awards are the key adaptations that would make other arbitral seats more attractive.The UNCITRAL Arbit
51、ration Rules are the most popular regime for ad hoc arbitration.The five most preferred arbitral institutions are the ICC,SIAC,HKIAC,LCIA and CIETAC.Respondents chose administrative/logistical support for virtual hearings as their top choice adaptation that would make other sets of arbitration rules
52、 or arbitral institutions more attractive,followed by commitment to a more diverse pool ofarbitrators.Arbitration users would be most willing to do without unlimited length of written submissions,oral hearings on procedural issues and document production,if this would make their arbitrations cheaper
53、 orfaster.59%2%31%2%6%Chart 1:Post-COVID-19,what would be your preferred method of resolving cross-border disputes?International arbitration together with ADR International arbitrationADR onlyCross-border litigationCross-border litigation together with ADR6White&Caseconsequence of the pandemic,respo
54、ndents referred to an initial feeling of being numbeffectively,a procedural paralysis.Only a few private practitioners observed that their clients were now exploring settlements more willingly than previously.Generally,interviewees noted that recourse to ADR was in the hope that a swifter and more c
55、ost-efficient resolution could be found before resorting to arbitration.In many cases,there is a contractual mandate to use ADR,typically through multi-tiered escalation clauses.Even when there is no contractual requirement to do so,interviewees confirmed a willingness to explore suitable alternativ
56、es to resolve disputes.This explains opting for arbitration together with ADR for the purposes of this question as opposed to arbitration as a stand-alone option.In addition,in certain types of disputes,there are established practices of recourse to other means of dispute resolution;for instance,int
57、erviewees with experience in disputes in the construction industry reported positively on the use of disputes boards in that sector.They explained that dispute adjudication and dispute review boards are commonly used in construction projects.In some cases,the contract provides for dispute boards in
58、the form of standing bodies assigned to monitor the projects.Several interviewees noted that,in many instances,they have found dispute boards to be a good,efficient and often cheaper dispute resolution option that helped their clients avoid lengthy and time-consuming arbitrations.Standing dispute bo
59、ards were also reported to be a useful means of dispute prevention.However,the main concern noted was that the decisions of dispute boards are not generally enforceable.This means that if a decision is not mutually accepted,the parties will be back to square one,facing potentially duplicative and co
60、stly arbitration proceedings for the samedispute.Which seats are most preferred?Choice of arbitral seat is a key issue for users of international arbitration.We sought to identify the seats that are most preferred by respondents or their organisations,allowing them to list up to five seats in free-t
61、ext boxes.Reflecting the global nature of international arbitration,respondents cited more than 90 different seats from a range of jurisdictions around the world.Notwithstanding the number of choices available to international arbitration users,the top-five preferred seats should not come as a surpr
62、ise when looking at the results from our previous surveys.3 There has,however,been interesting movement within the top-five rankings.While London once again stands at the top of the charts,for the first time it shares this position with Singaporeeach was included in the top-five picks of 54%of the r
63、espondents.The rise in popularity of key Asian arbitral hubs demonstrated by Singapores success is mirrored by Hong Kong,which takes third place(50%).Paris comes in fourth(chosen by 35%of respondents)followed by Geneva in fifth place(13%ofrespondents).4 Reviewing the findings of our 2015,2018 and cu
64、rrent surveys,it seems that these cities have cemented a dominant position as seats of choice.This is perhaps to be expected given that each of them has a longstanding and recognised reputation as a safe seat for international arbitration.5 Indeed,based on the previous surveys,it was expected that t
65、hey would continue to be popular.This has been borne out in these latest findings.Londons continued presence at the top of the table suggests that,as was predicted by the majority of the respondents in our 2018 survey,6 its popularity as a seat has not been significantly impacted(at least so far)by
66、the UKs withdrawal from the European Union.London retains its reputation amongst users as a reliable seat of choice.What is more striking,however,is the significant percentage gains made by Singapore(54%)and Hong Kong(50%),as compared to our previous surveys.Singapore was the third most frequently c
67、hosen seat in 2018,selected by 39%of respondents,and it came in fourth in 2015,chosen by 19%of respondents.Hong Kong took fourth place in 2018,chosen Chart 2:What are your or your organisations most preferred seats?Percentage of respondents who included the seat in their answerParisSingaporeHong Kon
68、gGenevaNew YorkStockholmDubaiBeijingShanghaiLondon54%54%50%35%13%8%6%5%12%12%54%London and,for the first time,Singapore,were the most preferred seats with scores of54%72021 International Arbitration Surveyby 28%of respondents,and it was third in 2015,as a seat of choice for 22%of respondents.Intervi
69、ewees confirmed that these seats are considered safe,obvious choices of established quality.Interestingly,some interviewees mentioned the presence of well-established arbitration institutions,such as SIAC in Singapore,as an additional factor they consider when choosing the seat.7 The growth in popul
70、arity of seats in this region year-on-year8 may reflect an increasing willingness by parties with commercial interests linked to that locale to also resolve disputes locally.It will be interesting to see whether large-scale commercial projects,such as the Belt and Road Initiative,will continue to im
71、pact this in the future.The increases enjoyed by these seats may also correlate with a relative reduction in the percentage of respondents who included traditionally dominant European seats,such as London,Paris and Geneva,in their answers.London was selected by 64%of respondents in 2018,making it th
72、e most selected that year,but it dropped to 54%in this edition of the survey.Paris fell even further,from its second place showing in 2018,with 53%of respondents including it in their selections,to fourth place this year,as a seat of choice for 35%of respondents.Geneva also retained its position in
73、previous surveys as the fifth most popular seat,but with a dip in the percentage of respondents who included it in their answersfrom 26%in 2018 to 13%now.Similarly,while the other seats rounding out the top seven in both 2015 and 2018 continue to be seen as safe choices by respondents namely,New Yor
74、k and Stockholm seats in other regions have gained in popularity.Beijing joins New York as joint sixth most popular seat,with each chosen by 12%of respondents.Shanghai comes in eighth(8%),with Stockholm dropping from the seventh place it held in previous surveys to ninth place(6%).The top ten is rou
75、nded out by Dubai,chosen by 5%ofrespondents.Other cities that were each listed by 4%to 2%of respondents included:Zurich;Vienna;Washington,DC;Miami;Shenzhen;So Paolo;Frankfurt;and The Hague.The regional pictureWe analysed the results for respondents practising or operating in various regions,9 which
76、revealed a number of fluctuations.London,for example,topped the charts for all regions in our 2018 survey;although it continues to enjoy first place for most regions this time,it was not selected as the most preferred seat for respondents in Asia-Pacific and did not feature at all in the top picks f
77、or the Caribbean/Latin America.In Asia-Pacific,both Singapore and HongKong surpassed London by a significant margin(more than 20%).Chart 3:Top-five most preferred seats by regionPercentage of respondents who included the seat in their answerLondonParisGenevaSingaporeHong KongNew YorkSo PauloBeijingE
78、uropeAsia-PacificCaribbean/Latin AmericaNorth AmericaAfricaMiddle East76%67%37%30%26%66%55%46%38%25%78%63%48%29%27%64%54%21%19%19%74%71%50%19%15%69%67%46%18%32%Hong Kong,Paris and Singapore were all ranked in the top-five most preferred seats in allregions.A number of other popular seats reached the
79、 top five in several regional subgroups;for example,Geneva was the fourth most preferred seat in Europe,Africa and the Middle East,and fifth in the Caribbean/Latin America.Several seats outside the global top ten did make it to the top ten in the regions in which they are located.In Africa,this was
80、the case with Cairo(12%)and Nairobi(6%);in Asia-Pacific,Shenzhen(4%);in the Caribbean/Latin America,So Paolo(21%),Miami(15%)and Lima(6%).Madrid(5%)also made the top ten for the Caribbean/Latin America.Although it seems that the global powerhouse seats will continue to be popular,there are many regio
81、nal seats which are growing in reputation andpopularity.Hong Kong,Paris and Singapore were amongst the top-five preferred seats inallregions While the global powerhouse seats continue to be popular,there are many regional seats which are growing in reputation and popularity8White&CaseWhat adaptation
82、s would make other seats more attractive?More than 90 different seats were mentioned in response to the previous question on seat preference.This shows that although the most popular seats enjoyed the lions share of the votes,there is still significant scope for seats outside the top ranks to attrac
83、t users.We asked respondents to indicate what adaptations would make seats more attractive other than those they say they preferred.Respondents could choose up to three options from a list of suggestions,with a free-text otheroption.Greater support for arbitration by local courts and judiciary was t
84、he most selected adaptation(56%),Chart 4:What adaptations would make other seats more attractive to users?Greater support for arbitration by local courts and judiciaryIncreased neutrality and impartiality of the local legal systemBetter track record in enforcing agreements to arbitrateand arbitral a
85、wardsAbility to enforce decisions of emergency arbitrators or interim measures ordered by arbitral tribunalsAbility for local courts to deal remotely witharbitration-related mattersPolitical stability of the jurisdictionAllowing awards to be signed electronicallyThird-party funding(non-recourse)perm
86、issible in the jurisdictionOther56%54%47%39%28%25%14%8%3%Respondents were able to select up to three optionsclosely followed by increased neutrality and impartiality of the local legal system(54%)and better track record in enforcing agreements to arbitrate and arbitral awards(47%).The other choices
87、ranked as follows:ability to enforce decisions of emergency arbitrators or interim measures ordered by arbitral tribunals(39%),ability for local courts to deal remotely with arbitration-related matters(28%),allowing awards to be signed electronically(14%),political stability of the jurisdiction(9%)a
88、nd third-party funding(non-recourse)permissible in the jurisdiction(8%).These adaptations reflect what were already identified as the systemic legal traits of a seat considered to be most important to users.10 This follows a well-trodden path of reasons identified by the respondents in our 2018 surv
89、ey as the most important when choosing arbitral seats.11 These criteria are seen as long-term markers of quality that determine user preference.They include unhindered access to arbitration promoted by local courts,neutrality and impartiality of the local judiciary,and an enforcement trackrecord.Onc
90、e those features are identified in given seats,there may be other factors taken into account by respondents which influence their choice of one seat over another.In particular,there seems to be a growing wish for seats to also have the judicial and/or political facility to adapt quickly to changing
91、user needs,such as the ability to implement technological advances to maintain procedural efficiency and effectiveness(for example,local courts being able to deal remotely with arbitration-related matters).The latter,coupled with the possibility of awards being signed electronically,are issues that
92、were given relatively little attention pre-pandemic.Presumably,in light of recent experience,users are placing more importance on them now.There is a growing wish for seats to also have the judicial and/or political facility to adapt quickly to changing userneeds,such as the ability to implement tec
93、hnologicaladvances to maintain procedural efficiencyand effectiveness 90+More than 90 different seats were mentioned in response to thequestion on seat preference92021 International Arbitration SurveyWhich ad hoc procedural rules are most used?We asked respondents which ad hoc procedural regimes the
94、y had used most frequently in the past five years.We included a list of choices and a free-text box choice(other),allowing respondents to select up to three options.Pre-set choices included:bespoke regimes agreed by the parties,CPR Non-Administered Arbitration Rules,Grain and Feed Trade Association
95、Arbitration Rules,12 London Maritime Arbitrators Association(LMAA)Terms,national arbitration laws,The Construction Industry Model Arbitration Rules,and UNCITRAL Arbitration Rules.The UNCITRAL Arbitration Rules,chosen by three-quarters(76%)of respondents,were a clear winner.They were followed by nati
96、onal arbitration laws(28%),bespoke regimes agreed by the parties(26%)and the LMAA Terms(13%).Several interviewees credited the success of the UNCITRAL Arbitration Rules to these rules being carefully designed and widely tested.Others remarked on their prevalence and level of global recognition.This
97、may be because the UNCITRAL Arbitration Rules are used across all sectors in both commercial and investment treatyarbitration.Interviewees valued the procedural flexibility offered by ad hoc arbitration,which they felt enhanced party autonomy compared to institutional arbitration.This emphasis on pa
98、rty autonomy throughout the arbitral process was a recurring theme in interviews.A number of interviewees also highlighted the popularity of ad hoc arbitration for resolving disputes in sectors such as the maritime industry and commodity markets.As one interviewee specialising in maritime disputes e
99、xplained,parties want a dispute resolution mechanism that was developed by their sector,for their sector,and conducted by practitioners from their sector.Which arbitral institutions are most preferred?We asked respondents to indicate their preferred arbitral institutions,allowing them to specify a m
100、aximum of five different entries(in free-text form).This generated a list of more than 50 institutions across the globea strong indication that while certain institutions are chosen time and again,users also appreciate a wide degree of choice.Of all the nominations,the ICC stands out as the most pre
101、ferred institution(57%),followed by SIAC(49%),HKIAC(44%)and the LCIA(39%).These top-four choices have been the market leaders for well over a decade.13 This year,CIETAC(17%)also made it to the top-five most preferred choices for the first time.The other institutions in the Chart 5:If you or your org
102、anisation have selected ad hoc arbitration over the past five years,which of the following procedural regimes were used the most?Respondents were able to select up to three options4%4%5%8%13%26%28%76%UNCITRAL Arbitration RulesNational arbitration lawsBespoke regimes agreed by the partiesLondon Marit
103、ime Arbitrators Association TermsOtherThe Construction Industry Model Arbitration RulesCPR Non-Administered Arbitration RulesGrain and Feed Trade Association Arbitration RulesInterviewees valued the procedural flexibility offered by ad hoc arbitration,which they felt enhanced party autonomy compared
104、 to institutional arbitration 76%The UNCITRAL Arbitration Rules were amongst the most frequently used ad hoc regimes by 76%of respondents32%10White&Caseglobal top ten were:ICSID(11%),SCC(7%),ICDR(6%),PCA(5%)and LMAA14(5%).Our 2015 and 2018 surveys highlighted a noticeable growth in the percentage of
105、 respondents selecting SIAC.15 This trend was clearly confirmed in this survey,with SIAC taking second place overall.There was also a significant increase in the percentage of respondents selecting HKIAC,which took thirdplace.16 The increases enjoyed by SIAC and HKIAC may correlate with a relative r
106、eduction in the percentages of the LCIA and the ICC.The LCIA,although it remains amongst the most popular institutions,dropped to fourth place from second place in 2018.The ICCs overall percentage dropped considerably from 77%in 2018 to 57%today.Interviews confirmed the principal drivers behind choi
107、ce of institution include the general reputation of the institution and the respondents previous experience of that institution.17 However,interviewees revealed that in particular circumstances they would widen the list of institutions they might consider.For example,depending on the potential value
108、 of a given dispute,practitioners reported that they would be willing to consider less well-known institutions offering competitive fees.The depth and breadth of the pool of arbitrators that might be recommended by an institution was also a factor highlighted by interviewees,as discussed further at
109、pp.11 12 below.Some interviewees also mentioned that their perception of the quality and consistency of institutional staff and counsel teams can influence their opinion when considering institutions.While none of these considerations in and of themselves displace the general factors of reputation a
110、nd recognition of an institution,they suggest that there are multiple distinguishing features which influence the choice of one institution over another.The regional responseAn analysis of the subgroups based on the regions where respondents principally practise or operate revealed that the top-thre
111、e preferred institutions globally also rank highly across most of these regions.The ICC ranks first in all regions except for Asia-Pacific,where it is outranked by the SIAC,which in its turn is also ranked among the first-five choices in all regions.The LCIA ranks second in all regions except for As
112、ia-Pacific.More regionally based variations can be noticed outside the top-five ranks.ICSID and the PCA both enjoyed a consistent showing,appearing in the top-ten rankings of all subgroups.Several other institutions made it to the top ten either in all subgroups(e.g.,the SCC)or in almost all subgrou
113、ps(e.g.,the LMAA18).There were also a number of institutions that did not make the top-ten list globally,but that were ranked amongst the top-ten most preferred institutions in the regions in which they were based.These include,for example,VIAC and DIS in Europe,JAMS and the AAA/ICDR in North Americ
114、a,DIAC in the Middle East and the Lagos Court of Arbitration inAfrica.19Percentage of respondents who included the institution in their answerChart 6:What are your or your organisations most preferred arbitral institutions?LCIASIACHKIACCIETACICSIDPCALMAASCCICDRICC49%44%17%11%39%7%6%5%5%57%The genera
115、l reputation of the institution and the respondents previous experience of that institution are the principal drivers behind choice of arbitral institution 50+More than 50 arbitral institutions across the globe were mentioned by respondents32%112021 International Arbitration SurveyWhat adaptations w
116、ould make other institutions or arbitral rules more attractive to users?We asked respondents to indicate what adaptations would make other arbitral institutions or sets of arbitration rules more attractive.A list of indicative choices was offered,together with a free-text other option,from which res
117、pondents could choose up to three options.Some of the suggested adaptations related to provisions in arbitral rules(whether used in administered or non-administered arbitrations).Other suggested adaptations concerned the service offered by arbitral institutions and appointing or administering author
118、ities.Noticeably,but perhaps unsurprisingly given the pandemic,the top-ranked choice(38%)was administrative/logistical support for virtual hearings.It was followed by commitment to a more diverse pool of arbitrators(32%)and transparency of administrative processes and decisions,such as selection of
119、and challenges to arbitrators(29%).Other options chosen by 25%to 20%of respondents included:provision of expedited procedures,more tailored procedures for complex and multi-party arbitrations,provision for arbitrators to order both virtual and in-person hearings,cost sanctions for delay by arbitrato
120、rs,rules giving extensive case management powers to arbitrators including robust sanctions in relation to the behaviour of parties and counsel,and provision of secure electronic filing and document-sharing platforms.In our 2018 survey,when we asked respondents to indicate the four most important rea
121、sons why they prefer given institutions,the results showcased a tendency for users to adopt a macro-perspective.This macro-perspective reflects the main factors that respondents to our 2018 survey identified as the ones that most determine their preference for one institution over another,namely the
122、 general reputation and recognition of the institution,its high level of administration and users previous experience of the institution.20 These factors were more important to users than specific aspects of either the administration of cases by the institutions or their respective rules.The first c
123、hoice for our current survey(administrative/logistical support for virtual hearings)is clearly an indication of an emerging need of users due to the pandemic.The need for adaptation in response to changing circumstances is further underlined by the fact that there wasalso a demand for rules to inclu
124、de a provision for arbitrators to order both virtual and in-person hearings(23%).21 Commitment to a more diverse pool of arbitrators(32%)ranked second across the whole respondent pool,but was the joint highest ranked choice of the in-house counsel subgroup.This shows the importance of institutions o
125、r appointing authorities in providing a more diverse pool of proficientarbitrators.22Interestingly,several interviewees highlighted that,depending on the nature and the value of the dispute,they might be Chart 7:Top-five most preferred arbitral institutions by regionICCLCIASIACICSIDHKIACCIETACICDR79
126、%57%39%21%14%64%46%30%30%25%87%51%31%27%27%79%65%37%23%17%81%63%47%15%14%70%58%40%27%23%AfricaAsia-PacificEuropeNorth AmericaMiddle EastCaribbean/Latin AmericaPercentage of respondents who included the institution in their answerAdministrative/logistical support for virtual hearings isthe most impor
127、tant adaptation that would make other arbitral institutions more attractive32%of in-house counsel would like administrative/logistical support for virtual hearings12White&Casewilling to use less widelyknown institutions(such as institutions based in jurisdictions that are emerging as arbitration hub
128、s)or even new entrants to the market.They explained that trusting in such institutions can be an effective means of encouraging greater diversity,particularly when those institutions may be in a position to suggest a different pool of arbitrators.This could include arbitrators who may not as yet enj
129、oy high visibility globally,but who have particular experience of a region,applicable law or industry relevant for a givendispute.Cost sanctions for delay by arbitrators and rules giving extensive case management powers to arbitrators including robust sanctions in relation to the behaviour of partie
130、s and counsel were each selected by 21%of respondents and reflect,as expanded on in interviews,the desire for faster arbitration proceedings and more flexibility.In relation to the ability of arbitrators to sanction parties and their counsel,several respondents felt that arbitrators are still overly
131、 cautious when it comes to due process paranoia.23 As one interviewee stressed,this timid approach leaves clients with a negative perception of arbitration.Others referred to instances of arbitrators failing to adequately address guerrilla tactics by opposing counsel and parties.It appears from this
132、 that the real concern is not so much a lack of powers provided for in arbitral rules,but a perceived reluctance by arbitrators to exercise those powers.24 On a related note,one interviewee emphasised the role that institutions can play in improving the quality of arbitrator performance,especially i
133、n terms of procedural delay.This can be achieved,the respondent opined,by more transparency as to arbitrators availability and making available data such as the average time taken to render awards.Other interesting questions concerned the nature and extent of the services that respondents would like
134、 administering entities and institutions to offer.On one hand,respondents have called for more active support in the practical conduct of arbitrations,such as administrative/logistical support for virtual hearings and provision of secure electronic filing and document sharing platforms.On the other
135、hand,several interviewees,many of whom practise as full-time arbitrators,expressed their dissatisfaction with the way in which,in their view,some arbitral institutions have become too prescriptive.Interviewees cited by way of example instances where they considered arbitral institutions to have adop
136、ted strong views on matters that are not clearly regulated under their rules,an approach which these respondents considered to be counterproductive to the flexibility of the arbitralproceedings.Chart 8:What adaptations would make other institutions or rules more attractive to users?Administrative/Lo
137、gistical support for virtual hearingsCommitment to a more diverse pool of arbitratorsTransparency of administrative processes and decisions,such as selection of and challenges to arbitratorsProvision of expedited proceduresMore tailored procedures for complex and multi-party arbitrationsProvision fo
138、r arbitrators to order both virtual and in-person hearingsCost sanctions for delay by arbitratorsRules giving extensive case management powers to arbitrators including robust sanctions in relation to the behaviour of parties and counselProvision of secure electronic filing and document-sharing platf
139、ormsProvision for summary determination/dismissal of unmeritorious claimsProvision of emergency arbitrator facilityOther38%32%29%25%24%23%21%21%20%18%13%6%Respondents were able to select up to three optionsThe use of less widelyknown institutions or even new entrants to the market can be an effectiv
140、e means of encouraging greater diversity,particularly when those institutions can suggest a different pool of arbitrators 32%of in-house counsel want commitment by institutions to a more diverse pool of arbitrators32%132021 International Arbitration SurveyMaking arbitrations cheaper and faster:Which
141、 procedural options are we really ready to forgo?Time and cost are perennially acknowledged as the biggest concerns for arbitration users.25 We asked respondents to assume the role of a party or counsel and consider,in that context,which of a list of different procedural options they would be willin
142、g to forgo if this would make their arbitration cheaper or faster.Respondents could select up to three options from the list,in no order of preference.With a clear margin of more than 20%over other options,the first choice was unlimited length of written submissions(61%).Interviewees agreed that thi
143、s was the option that they would feel most comfortable foregoing,as they saw it as a safe choice regardless of the type or profile of the dispute at stake.Interviewees further explained that,in their experience,it has become common practice for parties to submit unnecessarily long briefs.Imposition
144、of page limits was thought most appropriate for certain types of submissions,predominantly post-hearing briefs(as discussed further below).Interestingly,some interviewees felt it is not only the parties who should curb their tendencies in this regard,suggesting that page limits should also be set fo
145、r arbitral awards,particularly in the context of investor-state disputes.In a related vein,21%of the respondents would be willing to do without post-hearing briefs.Interviewees revealed a more nuanced view of post-hearing briefs:some explained that they do find post-hearing briefs useful,especially
146、when an oral closing has not taken place during a hearing,but that they work best where the tribunal provides some guidance as to content and imposes page limits.Indeed,imposing page limits on post-hearing briefs was almost unanimously deemed by interviewees as a means to save time and costs.As seve
147、ral respondents noted,counsel should resist the temptation to restate their entire case again when preparing their post-hearing briefs.It was suggested that post-hearing briefs should not simply function as an executive summary of the partys previous submissions,but should instead contain reflection
148、s on what has come out of a hearing and offer a roadmap to the tribunal for writing the award.On a similar theme of streamlining written arguments,respondents also indicated a willingness to relinquish more thanone round of written submissions(24%).Oral hearings on procedural issues(38%)was the seco
149、nd most popular option that respondents would be willing to forgo.Respondents pointed out that,as procedural issues can arise frequently throughout an arbitration,parties and tribunals should prudently seek to avoid the additional expense and time commitment that oral hearings on procedural issues e
150、ntail.Fewer respondents would be willing to forgo early case management conferences(16%).Interviewees explained that,in many instances,early case management conferences are useful for resolving procedural issues early on.Document production(27%)was also a popular option to sacrifice.Many interviewee
151、s emphasised that document production can be a very costly and time-consuming process.The time and cost involved is often disproportionate to the benefits that a party might hope to derive from the exercise.Others pointed out that although document production makes sense in some cases,in others,it c
152、an be tactically misused.Several interviewees also underlined the different expectations that parties from different legal traditions have when it comes to document production.While it might be expected that counsel from civil law Chart 9:If you were a party or counsel,which of the following procedu
153、ral options would you be willing to do without if this would make your arbitration cheaper or faster?Respondents were able to select up to three optionsUnlimited length of written submissionsOral hearings on procedural issuesDocument productionIn-person hearingsMore than one round of written submiss
154、ionsBifurcationPost-hearing briefsEarly case management conferencesCross-examinationParty-appointed expertsOther61%38%27%25%24%22%21%16%15%13%2%60%of arbitrators and 51%of in-house counsel favour limiting the length of written submissions32%31%of in-house counsel are willing to exclude document prod
155、uction32%14White&Casetraditions would be more inclined to do without document production,it is interesting that many interviewees from common law backgrounds also expressed a willingness to limit document production.A quarter of respondents(25%)included in-person hearings as a feature they would be
156、prepared to forgo.This seems to reflect,to some extent,the increased level of comfort users have acquired with remote hearings in recent times,and particularly as a result of logistical difficulties for in-person hearings resulting from the COVID-19 pandemic.26 However,interviews revealed that respo
157、ndents were more likely to elect this option for hearings on procedural issues,rather than substantive hearings.27 A slightly less frequently chosen option was bifurcation,which less than a quarter of respondents(22%)would elect to eliminate.Interviewees felt that whether bifurcation is a means to e
158、nhance efficiency or,conversely,whether it leads to more costs and delays depends significantly on the specific circumstances of the case.As such,they were less inclined to agree to exclude the possibility of bifurcation from the outset.Only a relatively small percentage of respondents(15%)indicated
159、 that they would be willing to do without cross-examination.In interviews,respondents expressed a preference for a more nuanced approach to thisfor example,they would be more amenable to forgo cross-examination in cases with less complex factual backgrounds and in relation to non-key witnesses.Some
160、respondents thought that a users legal culture may influence their view,suggesting that civil lawyers might be more willing to forgo cross-examination in certaincircumstances.Party-appointed experts was also chosen by a small percentage(13%).There was a split amongst interviewees performing differen
161、t roles.Some arbitrators took the view that party-appointed experts are sometimes used as hired guns by parties,which is undesirable.On the other hand,several counsel mentioned the also undesirable risk of a tribunal-appointed expert becoming a de facto fourth arbitrator.A recurring theme in intervi
162、ews was the sense that arbitration is becoming increasingly over-formalistic,at the expense of efficiency.Interestingly,this view was articulated by arbitrators themselves;as one arbitrator put it,they have seen the development over the years of what they referred to as a kind of arbitration-formali
163、ty which,taken too far,can amount to depriving the parties of the efficiencies they hoped for when they signed the arbitration clause.One example of this arbitration-formality that several respondents warned against is an excessive tendency to mimic court processes.Respondents stressed the importanc
164、e of flexibility as a means to aid efficiency and reduce costs by tailoring procedures to the needs of the dispute in question,rather than adopting rigid or excessively formalistic procedures.As one respondent pithily noted,arbitration should stop taking itself so seriously!Closer monitoring of cost
165、s may also encourage greater efficiencyone respondent suggested that institutions should introduce costs budgeting rules to help parties and their funders monitor and plan for their potential costsexposure.Respondents stressed the importance of flexibility as a means to aid efficiency and reduce cos
166、ts40%of arbitrators would forgo oral hearings on procedural issues32%152021 International Arbitration SurveyDiversity on arbitraltribunals:Whats theprognosis?Summary More than half of respondents agree that progress has been made in terms of gender diversity on arbitral tribunals over the past three
167、 years.However,less than a third of respondents believe there has been progress in respect of geographic,age,cultural and,particularly,ethnic diversity.Respondents are divided as to whether there is any connection between diversity on a tribunal and their perception of the arbitrators independence a
168、nd 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.Others consider the enquiry redundant,on the basis that t
169、he call for more diversity does not require furtherjustification.59%of respondents continue to emphasise the role of appointing authorities and arbitral institutions in promoting diversity,including through the adoption of express policies of suggesting and appointing diverse candidates as arbitrato
170、rs.However,the significance of the role of counsel is highlighted by about half of respondents,who included commitment by counsel to suggesting diverse lists of arbitrators to clients amongst their answers.In-house counsel also bear the onus of encouraging diversity through their choice of arbitrato
171、rs.Many respondents feel that opportunities to increase the visibility of diverse candidates should be encouraged through initiatives such as education and promotion of arbitration in jurisdictions with less developed international arbitration networks(38%),more mentorship programmes for less experi
172、enced arbitration practitioners(36%)and speaking opportunities at conferences for less experienced and more diverse members of the arbitration community(25%).Building visibility is particularly important in light of the perception that users prefer arbitrator candidates about whom they have some kno
173、wledge or with whom they have previous experience.The general consensus amongst respondents is that caution should be exercised when exploring whether adaptations in arbitral practice experienced during the COVID-19 pandemic may have an impact on promotion of diversity objectives,as it can go both w
174、ays.Virtual events,meetings and hearings may facilitate participation by more diverse contributors,but this may be hindered by unequal access to technology and the challenges of building relationships remotely.The many faces of diversity:How much progress has been made?Few,if any,would disagree that
175、 promoting diversity at all levels,including in the practice of international arbitration,is a positive thing.Calls for greater diversity,especially in relation to the appointment of arbitrators,have been prevalent for some time in the international arbitration community.The extent of progress towar
176、ds this goal is a matter of debate.Respondents were therefore asked whether,and to what extent,they agreed or disagreed with the proposition that progress has been made in the past five years with regard to various aspects of diversity(i.e.,gender,geography,age,culture and ethnicity)in terms of arbi
177、tralappointments.Very few respondents expressed either strong agreement or disagreement with the central proposition in relation to any of the five listed aspects of diversity.While it is encouraging that the majority of respondents(61%)agreed that some progress has been made in relation to gender d
178、iversity,this contrasts sharply with the position for the other featured aspects of diversity.In relation to geographic,age,cultural and ethnic diversity,less than a third of respondents positively agreed in each case that progress has been made in recent years.Finally,for all aspects of diversity,a
179、 significant percentage of respondents(ranging from 21%to 35%)took a neutral stance,i.e.,they neither agreed nor disagreed that progress has or has not beenmade.Perhaps most revealing of all,these findings almost mirror the results for the same question posed in our 2018 survey.28 Despite the increa
180、sed amount of focus of respondents disagree that progress has been made in recent years in relation to ethnic diversity34%16White&CaseChart 10:Do you agree with the statement that progress has been made in the following aspects of diversity on arbitral tribunals over the past three years?01020304050
181、60708090100Gender diversityGeographic diversityAge diversityCultural diversityEthnic diversity4%7%6%6%7%14%23%25%25%27%21%32%32%34%35%48%33%33%31%28%13%5%3%4%3%Strongly disagreeDisagreeNeither agree nor disagreeStrongly agreeAgreeon,and awareness of,diversity issues and initiatives since then,respon
182、dents clearly feel that this has not as yet translated into actual or sufficient positivechange.One difficulty identified by interviewees who were generally neutral on whether advances have been made is that it is hard to measure progress in this context.Although the publication by institutions and
183、appointing authorities of diversity-related statistics for arbitral appointments is to be welcomed in terms of providing some degree of verified information,it was noted that these statistics represent limited data sets.On a similar note,respondents mentioned the difficulty in defining different asp
184、ects of diversity.For example,interviewees questioned how age diversity can be statistically measured in the absence of agreement as to how to define itinthe first place.Ethnic diversity,in particular,continues to be an area where respondents feel there is a distinct need for improvement.As in our 2
185、018 survey,the statement that recent progress has been made in relation to ethnic diversity had the least agreement among the five listed aspects of diversity,with only 31%of respondents agreeing.29 Some interviewees expressed their frustration and dismay at the lack of progress in this area.One per
186、ception was that,unless there is a level playing field in terms of opportunities for engagement and visibility within the arbitration community,it is difficult to see how greater diversity can be achieved in arbitral appointments.One interviewee,for example,tellingly recounted attending an arbitrati
187、on conference focusing on arbitration in Africa where none of the invited speakers were from Africa themselves.Similar pipeline issues were also raised in relation to other aspects of diversity.30 While the question posed to respondents lists only a small selection of aspects of diversity,interviewe
188、es raised other aspects of diversity which they felt should also be given greater consideration.In particular,some interviewees focusing on arbitration in specific industries felt that the demands of certain types of disputes would be better served by less legalistic arbitration procedures.Theynoted
189、 in this context that there is room for more diversity in terms of arbitrator background,i.e.,welcoming more arbitrators who come from relevant industries and who are not necessarily qualified lawyers,but who have training in international arbitration procedure.Diversity,independence and impartialit
190、y:Is there a connection?We then explored whether there is any correlation between diversity on a panel of arbitrators and users perception of the arbitrators independence and impartiality.Responses were divided and no single viewpoint attracted a significant majority of support.Just over half of the
191、 respondents(57%)stated that diversity has either the most positive effect(36%)or positive effect(21%)on their perception of the arbitrators independence and impartiality.Only 6%said that it has a negative(5%)or the most negative effect(1%).More than a third of respondents(37%),however,said that div
192、ersity across a panel of arbitrators has no effect at all on their perception of the arbitrators independence andimpartiality.This outcome was replicated across those interviewed on this issue,who insisted that a nuanced approach is necessary on diversity.Many felt that the answer essentially depend
193、s on two factors:the type and particularities of a given dispute and the type of diversity in question.Put differently,the majority of interviewees felt it is not possible to Ethnic diversity continues to be an area where respondents feel there is a distinct need forimprovement172021 International A
194、rbitration SurveyChart 11:What effect does diversity across a panelof arbitrators have on your perception of their independence and impartiality?1 Most positive effect2 Positive effect3 No effect at all4 Negative effect5 Most negative effect1%21%36%37%5%provide a one-size-fits-all answer to this que
195、stionrather,one must take into account what is meant by diversity in each given case.So,a respondents choice of a positive or neutral answer to this question should not simply be taken at face value.As the interviews revealed,it is neither the case that those who replied in the positive unreservedly
196、 felt that an arbitral panel that lacks diversity would be partial as a result,nor that those who gave a neutral response felt that diversity is alwaysirrelevant.Additional nuances were also offered when specific aspects of diversity were considered byinterviewees.One view articulated in a number of
197、 interviews was that,when it comes to gender diversity,lack thereof has no impact on those respondents perception of the tribunals independence and impartiality.As one interviewee explained,gender diversity on tribunals is a laudable goal,but they would not automatically question the impartiality or
198、 independence of a panel just because its members were all female or all male.Similarly,age diversity was largely considered to be irrelevant in terms of perceptions of independence and impartiality.Ethnic,geographic and cultural diversity were often considered to be interconnected.Some interviewees
199、,both counsel and arbitrators,stressed that the impact of ethnic,geographic and cultural diversity on perceptions of impartiality and independence of arbitrators can depend,in part,on the nature of a given dispute.This is particularly the case in investor-state arbitration,where they felt diversity
200、or the lack thereof could be viewed as having an impact on both party and public perceptions of the legitimacy of the process.Another example from interviewees is where an arbitral panel is composed entirely of arbitrators who have no relationship with or understanding of a specific country or cultu
201、re central to a dispute.This could lead parties to feel that the arbitrators might fail fully to appreciate cultural differences and(perhaps subconsciously)favour parties from areas or cultures with which the arbitrators are more familiar.This concern arose particularly in relation to arbitrators fr
202、om North America and Western Europe when dealing with disputes involving legal or cultural mores from other parts of the world.Finally,a significant number of interviewees rejected the entire premise of the question,expressing that it is simply unnecessary,in this day and age,to seek to draw any cor
203、relation between diversity and arbitrators independence and impartiality in order to justify calls for increased diversity.It should suffice that having more diverse pools of arbitrators is the right thing.The real question for them is how to encourage more diversity in practice.Encouraging greater
204、diversity:Yes,but how?Respondents were asked which initiatives they considered to be most effective in encouraging greater diversity in terms of arbitral appointments.Respondents were asked to choose up to three options from a list of suggestions,to which they could also elect to add suggestions of
205、their own.Appointing authorities and institutions adopting an express policy of suggesting and appointing diverse candidates as arbitrators was the most chosen option(59%).This reflects a preference for the institutions to be proactive in this regard.It also confirms the prevailing perception of arb
206、itration users as to which participants in the international arbitration community wield the most influence on the promotion of diversity.31 This perspective was confirmed by an overwhelming majority of interviewees.As some explained,arbitral institutions(and,by extension,other appointing authoritie
207、s)can exercise this influence when they are called upon While gender diversity on tribunals is a laudable goal,users would not automatically question theimpartiality orindependence of a panel just because its members wereall female or all maleof respondents agree that progress has been made in recen
208、t years in relation to gender diversity61%18White&CaseChart 12:Which of the following initiatives do you consider to be most effective in encouraging greater diversity in terms of arbitral appointments?Appointing authorities and institutions adopting an express policy of suggesting and appointing di
209、verse candidates as arbitratorsCommitment by counsel to suggesting diverse lists of arbitrators to clientsEducation and promotion of arbitration in jurisdictions with less developed international arbitration networksMentorship programmes for less experienced arbitration practitionersSpeaking opportu
210、nities at conferences for less experienced and more diverse members of the arbitration communityParties opting for institutional rather than party nomination of arbitratorsDedicated interest groups that promote diversity in particular aspects or areas,e.g.,ArbitralWomen,Africa Arbitration Associatio
211、n,The Alliance for Equality in Dispute ResolutionDedicated policy texts that promote diversity,e.g.,The African Promise,The Equal Representation in Arbitration PledgeOther59%46%38%36%25%23%22%11%2%Respondents were able to select up to three optionsby parties to select tribunal members or presiding a
212、rbitrators,either from the outset or when the parties or co-arbitrators have been unable to reach an agreement on appointments.Several interviewees opined that institutions and appointing authorities were also likely to maintain or have access to databases reflecting a larger pool of candidates for
213、tribunals than parties or their counsel might otherwise consider.Representatives of various arbitral institutions confirmed that increasing diversity across tribunals is high on their agenda when appointing arbitrators.As discussed at pp.11 12 above,interviewees also saw an opportunity presented by
214、the growing presence of regional and less widely known arbitral institutions and the role they could play in promoting diversity objectives,including by suggesting and appointing diverse arbitrator candidates.However,while appointing authorities and institutions undoubtedly play a major role in arbi
215、tral appointments,it was generally agreed that the larger proportion of candidates are nominated by parties and their counsel.32 The significance of the role of counsel was highlighted by 46%of respondents,who included commitment by counsel to suggesting diverse lists of arbitrators to clients among
216、st theiranswers.Ultimately,it is always the demands of the case that determine choice of arbitratorsThe prevailing sentiment amongst interviewees,however,was that this is often easier said than done.Some private practitioners admitted that they do not necessarily suggest as diverse a spread of candi
217、dates as they could when proposing lists of potential arbitrators to clients.Several interviewees reported that they encounter resistance from their clients when they do suggest candidates with whom the clients are relatively unfamiliar;similarly,clients are often not willing to trust suggested name
218、s who have less experience as arbitrators.The vast majority of interviewees emphatically pointed out that,ultimately,it is always the demands of the case that determine their choice of arbitrators.One interviewee noted it is not always easy for counsel to persuade clients to consider a wider range o
219、f arbitrators.However,this does not absolve them of the responsibility to carry out the necessary due diligence and propose and promote diverse choices to their clients.Interviewees also emphasised that in-house counsel have the ultimate power to choose between potential arbitrator candidates and so
220、 the onus is on them to encourage diversity by their choices.This theme of responsibility of both external and in-house counsel and,in particular,of more senior members of the arbitration community in promoting diversity was emphasised by several interviewees.Notably,this included both arbitrators a
221、nd in-house counsel.One point that was repeatedly made is that,even 192021 International Arbitration Surveythough it is undoubtedly important to promote diversity across arbitral panels,the reality is that a lot of work remains to be done in promoting diversity across counsel teams.Drawing attention
222、 to this pipeline issue,one interviewee noted that todays counsel may be tomorrowsarbitrators.The third most cited suggestion(38%)was education and promotion of arbitration in jurisdictions with less developed international arbitration networks.More mentorship programmes for less experienced arbitra
223、tion practitioners ranked fourth(36%).In addition,a quarter of respondents(25%)included speaking opportunities at conferences for less experienced and more diverse members of the arbitration community as a way to encourage greater diversity.As explained in the interviews,these events help increase t
224、he visibility of newer entrants to the arbitration field.Organisers of such events are urged to make sure that their lists of speakers and moderators reflect diversity of all kinds.Building visibility is particularly important,because users tend to prefer arbitrator candidates about whom they have s
225、ome knowledge or with whom they havepreviousexperience.A number of respondents also opted for dedicated interest to online conferences and events has opened up participation to wider audiences worldwide.This also offers the opportunity for speakers at those events to introduce themselves to members
226、of the arbitration community with whom they may not otherwise have been able to connect.Remote working could facilitate access to the arbitration community for people who may have been unable to travel.33 Several interviewees also thought increased use of IT could encourage inclusion of younger arbi
227、trators who are more familiar with new technologies.Cautious notes were also sounded on how much impact there may be on diversity objectives.Some interviewees,including arbitrators,speculated if the lack of in-person meetings between members of a tribunal would push those selecting arbitrators to pr
228、efer a more well-known candidate with existing relationships with other tribunal members.They attributed this to a fear that it may be more difficult for newer candidates to establish those relationships of trust and confidence remotely.34 Unequal access to reliable and affordable technology require
229、d for remote participation in hearings,meetings and community events was alsoflagged by many as achallenge.While it is undoubtedly important to promote diversity across arbitral panels,the reality is that a lot of work remains to be done in promoting diversity across counsel teams,toogroups that pro
230、mote diversity in particular aspects or areas,e.g.,ArbitralWomen,Africa Arbitration Association,The Alliance for Equality in Dispute Resolution(22%)and dedicated policy texts that promote diversity,e.g.,The African Promise,The Equal Representation in Arbitration Pledge(11%).However,a number of inter
231、viewees expressed scepticism with regard to the proliferation of groups promoting particular aspects of diversity relative to their tangiblecontribution.Diversity and the pandemic:Ablessing,a curse or irrelevant?The arbitration community has had to adapt in many ways in response to the COVID-19 pand
232、emic.We sought interviewees views on any potential correlation between the pandemic,the necessary adaptations in the practice of arbitration and the promotion of diversity objectives.The general consensus was that it can go bothways.On the positive side was that there might be new opportunities to i
233、ncrease the visibility of practitioners from groups that are underrepresented or who are based in jurisdictions which are not amongst the best-known hubs for international arbitration.For instance,the shift from in-person 46%of respondents encourage commitment by counsel to suggesting diverse lists
234、of arbitrators to clients 20White&CaseThe use of technology to support the practice of international arbitration has become increasingly commonplace.In particular,the arbitration community has shown a desire to embrace technology that boosts efficiency,identifying the wish for increased efficiency,i
235、ncluding through technology as the factor most expected to influence the future evolution of international arbitration.35 The COVID-19 pandemic has presented challenges for the international arbitration community,but information technology tools have allowed practices to be adapted to new circumstan
236、ces.We explored the impact of the use of technology in arbitration:how it has changed in recent years;which technology-supported changes may continue to be favoured by users in the future;and whether adaptations in practice highlighted during the pandemic represent a natural,continuing evolution rat
237、her than a crisis-drivenrevolution.Increased use of IT,but AI remains science fictionFirstly,we set out to investigate current usage of certain forms of information technology(IT)and measure this against the level of usage reported by respondents to our 2018 survey.36 Respondents were asked to indic
238、ate how often they have used the following forms of IT in international arbitrations:videoconferencing,hearing room technologies(e.g.,multimedia presentations,real-time electronic transcripts),cloud-based storage(e.g.,FTP sites,cloud-based storage),artificial intelligence(e.g.,data analytics,technol
239、ogy-assisted document review)(AI)and virtual hearing rooms.Videoconferencing and hearing room technologies were the most commonly used forms of Use of technology:Thevirtual reality Summary Technology continues to be widely used in international arbitration,particularly videoconferencing and hearing
240、room technologies,but the adoption of AI still lags behind other forms of IT.The increase in the use of virtual hearing rooms appears to be the result of how the practice of arbitration has adapted in response to the COVID-19 pandemic,as users have been forced to explore alternatives to in-person he
241、arings.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.Recent(and,in many cases,new)experience of
242、virtual hearings has offered an opportunity to gauge users perception of this procedural adaptation.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
243、 and logistical flexibility.Aspects that gave respondents most cause for concern included the difficulty of accommodating multiple or disparate time zones,the impression that it is harder for counsel teams and clients to confer during hearing sessions and concerns that it might be more difficult to
244、control witnesses and assess their credibility.The fallibility of technology and the phenomenon of screen fatigue were also cited.Going forward,respondents would prefer a mix of in-person and virtual formats for almost all types of interactions,including meetings and conferences.Wholly virtual forma
245、ts are narrowly preferred for procedural hearings,but respondents would keep the option of in-person hearings open for substantive hearings rather than purely remote participation.Arbitration users should be forward-looking and prepared to deal with transformative technologies72%of respondents somet
246、imes,frequently or always use virtual hearing rooms 32%212021 International Arbitration Surveytechnology,with 63%of users claiming that they always or frequently use these aids,and a further 27%and 25%respectively saying they sometimes utilise them.More than half of respondents always or frequently
247、use cloud-based storage(56%),with another quarter of respondents(24%)sometimes using this form of IT.Respondents also avail themselves of virtual hearing rooms38%of respondents always or frequently use this aid,while a further 35%sometimes make use of these platforms.Again,proportionately fewer resp
248、ondents have never or rarely made use of these aids.37 When compared to the results of the same enquiry posed in our 2018 survey,the use of hearing room technologies,videoconferencing and cloud-based storage has remained relatively consistent.38 This is perhaps surprising,given the expectations arti
249、culated by respondents to our 2018 survey,an overwhelming majority of whom expressed the view that videoconferencing(89%),cloud-based storage(91%)and hearing room technologies(98%)are tools that arbitration users should make use of more often.39 One might have also expected the changing circumstance
250、s resulting from the COVID-19 pandemic to have hastened the adoption of thesetools.One possible explanation for the lack of movement in this regard may be that those who were already using those forms of IT previously have continued to do so.However,those who were infrequent or occasional users have
251、 not since had sufficient reason to significantly change their practices,notwithstanding the effect of the pandemic.For example,if hearing room technology is thought to be unnecessary or disproportionately expensive for a given dispute,this cost-benefit analysis might not automatically be affected b
252、y the pandemic.It may even be that parties would be under greater pressure than before to reduce costs or logistical complexity.Nor would a switch from an in-person to a virtual hearing necessarily in and of itself impact the decision whether to use tools such as real-time transcription or multimedi
253、a presentations.In a similar vein,interviewees pointed out that arbitrations in particular sectors are frequently determined without oral hearings.The pandemic would have comparatively less effect on the practical conduct of documents-only arbitrations,so those involved in them would be correspondin
254、gly unlikely to have significantly increased their usage of certain forms of IT.By contrast,there appears to have been an explosion in the use of virtual hearing rooms:72%of respondents report using virtual hearing rooms at least sometimes,if not frequently or always,40 in stark contrast to our 2018
255、 survey,when 64%of respondents said that they had never utilised virtual The pandemic has served as a catalyst to hasten the wider awareness and acceptance of virtual hearing rooms Chart 13:How often have you used the following forms of information technology in an international arbitration?Videocon
256、ferencingHearing room technologies(e.g.,multimedia presentations,real-time electronic transcripts)Cloud-based storage(e.g.,FTP sites,data rooms)Virtual hearing roomsArtificial intelligence(e.g.,data analytics,technology-assisted document review)007080901005%5%27%48%15%7%5%25%39%24%11%10%2
257、4%36%20%14%12%35%33%5%35%24%26%13%2%NeverRarelySometimesAlwaysFrequentlyhearing rooms and a further 14%said they had used them rarely.41 Unlike many of the other forms of IT we considered,this wholesale shift in use of virtual hearing rooms would logically appear to be the result of how the practice
258、 of arbitration has adapted in response to the COVID-19 pandemic,as users have been forced to explore alternatives to in-person hearings.The signals that the arbitration community was willing to embrace greater use of technology have been there for some time;even in 2018,the use of virtual hearing r
259、ooms was not wholly unknown.In this regard,it could be said that the pandemic has served as a catalyst to hasten the wider awareness and acceptance of an adaptation that some users of arbitration had 22White&Casealready begun to adopt.Whether this increased recourse to virtual hearing rooms will be
260、sustained after the pandemic remains to be seen,as we explore further below.On the other side of the spectrum,even though there has been a noticeable increase in the use of AI since 2018,adoption of AI continues to lag behind other forms of IT.42 35%of the respondent group stated that they have neve
261、r used AI,while 24%stated that they have used AI rarely.Only 15%declared that they used AI frequently or always.Interviews reveal that this use of AI refers almost exclusively to technology-assisted document review.As one interviewee described it,AI has been a brilliant revolution for e-discovery,th
262、ereby enhancing proceduralefficiency.Several interviewees mentioned occasional use of other AI tools,such as data analytics.A recurring theme in these discussions was that AI tools are still considered to be relatively expensive and thus not affordable for all arbitration users.It was also noted tha
263、t,even where clients are able to undertake the expense,they are not always persuaded that these tools will have an added value that will justify the high costs they entail.This is particularly the case for lower value or less complex or data-intensivedisputes.Interviews further revealed that there i
264、s a general lack of familiarity with new technologies,coupled,in some cases,with a continuing sense of mistrust.Interviewees from all groups expressed a degree of scepticism towards the potential use of AI tools and algorithms for predictive justice.They raised ethical considerations and doubts as t
265、o how much such tools can or should interfere with the adjudicative function.The vast majority of interviewees felt that AI cannot substitute for human arbitrators andcounsel.Other interviewees felt that the potential benefits of the evolving use of IT aids should not be held back by this lack of fa
266、miliarity and the fear that it can engender.They emphasised that all stakeholders should adapt.This includes through training to familiarise themselves with technology and new tools that can impact the arbitration process.This would also assist stakeholders in assessing potential related risks(for e
267、xample,concerns as to whether use of some IT tools may lead to claims of due process violations).One interviewee noted that arbitration users not only need to be quicker to adapt to technology in the future,but must also guard against complacency or self-congratulation for having adapted thus far to
268、 existing technologies.They urged users to be forward-looking and prepared to deal with transformative technologies.Nor did interviewees feel that use of advanced technologies is the province only of those with deep pockets.One interviewee,for example,predicted that adjudication by AI could have a p
269、otential role in the future for lower-value disputes.Overall,interviewees are keen for progress in technology and its use in international arbitration to continue.The big picture view,as espoused by one respondent,is that arbitration should(and could)always be at the forefront of innovation in dispu
270、te resolution.Hearings:Virtual now or in-personlater?Hearings are the key stage for many arbitrations.We asked what the preferred course of action would generally be for participants faced with what has recently become a commonplace dilemma:a scheduled in-person hearing that can no longer be held in
271、 person at that time because of the COVID-19 pandemic.Would they rather postpone the hearing until it could be held in person,proceed at the scheduled time as a virtual hearing or proceed with an award rendered on the basis of documents only?A clear majority(79%)said they would rather proceed at the
272、 scheduled time as a virtual hearing,while 16%would postpone the hearing until it could be held in person and 4%would proceed with a documents-only award.Two key points emerged from interviews.First,and as noted above,although virtual hearings were not widely seen prior to the pandemic,the idea was
273、not new and the technology was available.43 This means arbitration users were already equipped with the available tools,and so were able to adapt 3%80%17%Chart 14:In general,if you had a scheduled in-person hearing that could no longer be held in person at that time,would you rather:Proceed at the s
274、cheduled time as a virtual hearing Postpone the hearing until it could be held in personProceed with an award on the basis of documents only The vast majority of interviewees felt that AI cannot substitute for human arbitrators and counsel87%of arbitrators would prefer to hold a scheduled hearing vi
275、rtually if it cant be held inperson 32%232021 International Arbitration Surveyeasily and relatively quickly to the remote environment.Second,this readiness to switch to virtual hearings was not instant.Despite this availability of technology,the majority of interviewees confessed that their initial
276、reaction at the start of the pandemic was a sense of procedural paralysis or a preference to wait and see.They reported that in the first months of the pandemic,they generally preferred to postpone any scheduled hearings in the expectation that the consequent delays would be of relatively short dura
277、tion.As it became clear that the exceptional circumstances of the pandemic could continue for some time,there was a shift in attitude towards proceeding at the scheduled time using a virtual format.Interviewees explained that this shift was motivated by the practical need to limit the time and costs
278、 consequences of indefinite procedural delay.Those who were familiar with forms of remote participation even before the pandemic cited this familiarity as another reason that led them to lean towards a remote hearing instead of postponing.Interestingly,breaking down the results by respondents primar
279、y role revealed that arbitrators overwhelmingly leant towards holding the hearing as scheduled but in a virtual format(87%of arbitrators selected this option).As interviews revealed,arbitrators were acutely conscious of the difficulty in accommodating multiple postponed hearings in already full diar
280、ies.They feared that the need to find multiple fresh sets of hearing dates might lead to even more extensive delays.It is also interesting to note that some interviewees who said they would opt for a documents-only procedure disclosed that this is a basis on which they routinely practice in any even
281、t.For example,arbitrations involving the trade and maritime sectors are commonly conducted without the need for hearings.Interviewees explained they would likely be more comfortable with the idea of forsaking an oral hearing in favour of a documents-only process than users who are more familiar with
282、,or expect,oral hearings to be part of the processwhether in person or virtual.Not a black or white picture:Thepros and consBy and large,the arbitration communitys reaction after the initial procedural paralysis due to the pandemic was pragmatic.In essence,that the show must go on.The resulting(and,
283、in many cases,new)experience of virtual hearings has offered an opportunity to gauge users perception of this procedural innovation.We asked respondents what they deemed to be the main advantages and disadvantages of virtual hearings.In each case,respondents were able to choose up to three options f
284、rom a list of suggested features,and could also include their own suggestions.The potential for greater availability of dates for hearings was seen as the greatest benefit of virtual hearings(65%),followed closely by greater efficiency through use of technology(58%)and greater procedural and logisti
285、cal flexibility(55%).One-third(34%)of respondents included less environmental impact than in-person hearings.Fewer distractions for advocates and arbitrators and the potential to encourage greater diversity across tribunals were each chosen by 13%of respondents,closely followed by better view of peo
286、ples faces than at in-person hearings(12%).The biggest disadvantages of virtual hearings were found to be difficulty of accommodating multiple or disparate time zones and the impression that it is harder for counsel teams and clients to confer during hearing sessions,Potential for greater availabili
287、ty of dates for hearingsGreater efficiency through use of technologyGreater procedural and logistical flexibilityLess environmental impact than in-person hearingsMay encourage greater diversity across tribunalsFewer distractions for advocates and arbitratorsBetter view of peoples faces than at in-pe
288、rson hearingsOtherChart 15:What are the main advantages of virtual hearings?65%58%55%34%13%13%12%5%Respondents were able to select up to three options65%of respondents think a key advantage of virtual hearings is potential for greater availability ofdates 32%24White&Casei.e.,other than in breaks,eac
289、h chosen by 40%of respondents.Almost as many respondents thought it might be more difficult to control witnesses and assess their credibility(38%).Issues relating to technology were also of concern:Technical malfunctions and/or limitations(including inequality of access to particular and/or reliable
290、 technology)and more difficult for participants to maintain concentration due to screen fatigue were each chosen by 35%of respondents.Between a quarter and a third of respondents selected confidentiality and cybersecurity concerns(30%)and the view that it is more difficult to read arbitrators and ot
291、her remote participants(27%).Views expressed in interviews were diametrically opposed.This may not seem remarkable in the context of questions asking respondents to turn their attention separately to the pros and cons rather than considering issues in the round.However,notwithstanding the way in whi
292、ch the questions were phrased,interviewees tended to come down on one side or another:either very positive towards virtual hearings,or very sceptical of them.This general opposition of views is exemplified by the fact that the main advantage and main disadvantage identified by the respondents both r
293、elated to scheduling issues:the perceived ease of finding more available dates to schedule virtual as opposed to in-person hearings on the one hand,and the challenge of accommodating disparate time zones on the other.Interviewees highlighted that the truly global nature of international arbitral pra
294、ctice means that the various stakeholders in any given case(e.g.,party representatives,counsel,arbitrators,witnesses and experts)may be located in different places and,critically,different time zones all over the world.This makes it particularly challenging to find a given set of hours in the course
295、 of a day that would be equally convenient and fair for allparticipants.On the issue of ease,or lack thereof,of team communications during virtual hearing sessions,interviewees recounted that they have used various means of communication within their teams.However,they have found that none of them c
296、ompare to being in the same room physically.This extends to communications outside the strict confines of the hearing room.A number of interviewees,in particular arbitrators,explained that in-person hearings offer the merit of face-to-face deliberations and casual exchanges(for example,over shared m
297、eals or in scheduled breaks)that are not simply social encounters.They facilitate the arbitral process by encouraging Difficulty of accommodating multiple or disparate time zonesHarder for counsel teams and clients to confer during hearing sessions,i.e.,other than in breaksMore difficult to control
298、witnesses and assess their credibilityTechnical malfunctions and/or limitations(including inequality of access to particular and/or reliable technology)More difficult for participants to maintain concentration due to screen fatigueMore difficult to read arbitrators and other remote participantsHarde
299、r for arbitrators to confer during hearing sessions,i.e.,other than in breaksPotential due process concerns impacting enforceability of any awardPotential for ethical or procedural abuses OtherConfidentiality and cybersecurity concernsChart 16:What are the main disadvantages of virtual hearings?40%4
300、0%38%35%35%30%27%15%11%8%2%Respondents were able to select up to three optionsAs far as virtual hearings are concerned,respondents tended to come down on one side or another:either very positive towards them,or very sceptical of them252021 International Arbitration Surveya more collegial atmosphere,
301、making it easier to come to agreements with co-arbitrators or other participants.44 In the same vein,interviewees in the role of counsel mentioned finding it easier to resolve such things as minor procedural issues in face-to-face discussions in more casual environments,such as over the coffee machi
302、nes in breaks or a quick knock on the door.In a virtual environment,dealing with the same kind of minor issues is more likely to be a more formal and time-consuming process.However,respondents did not appear to be unduly concerned about the enforceability of awards when hearings were held virtually.
303、Only 8%of respondents thought potential due process concerns impacting enforceability of any award was one of the main disadvantages of virtual hearings.Only 11%pointed to potential for ethical or procedural abuses.Interviewees revealed that any initial concerns they may have had were alleviated by
304、the first positive messages coming from domestic courts considering enforceability questions arising from virtual hearings.They were also reassured by statements and guidance issued by arbitral institutions(in the context of administered arbitrations)confirming that virtual hearings were permitted u
305、nder their rules.Another set of concerns that were frequently mentioned in the interviews related to advocacy and the ability to read other participants.Interviewees conceded that the view of other participants faces can be better on screen than in person,but stressed that it is harder to capture bo
306、dy language over video,as well as the overall dynamics of a hearing that one can only feel if everyone is in the same room.For some,their misgivings come from a sense of counsel having less control of the process in a virtual setting.Several interviewees found that some aspects of advocacy are tough
307、er when conducted remotely,such as cross-examination.Notwithstanding this,one common theme emerged:A good advocate is a good advocate in any environment,in-person or remote,and the decision whether to choose an in-person or a remote hearing should be made on one basis onlywhat is best for theclient.
308、How,then,do the parties who are the ultimate stakeholders of the arbitral process feel about virtual hearings?Some interviewees in the role of counsel reported that their clients tended to be very resistant to the idea of a virtual hearing,even if it might lead to costs savings.This was sometimes se
309、en in cases involving states or where the clients were personally invested in the issues Arbitration communityevents and conferencesCounsel team meetingsMeetings with clientsMeetings with expertand fact witnessesProcedural conferencesand hearingsSubstantive hearingsChart 17:Post-COVID-19,what do you
310、 think your preferred format will be for the following interactions?02040608010045%8%48%44%48%8%25%15%60%25%15%60%20%26%54%28%16%57%In-personVirtualMix of in-person and virtualat stake.This may be due in part to those clients wanting to have the arbitration equivalent of their day in court.A remote
311、hearing feels less like that.On the other hand,several counsel reported that the majority of their clients were delighted to be able to keep the resolution of their dispute on track and were largely satisfied with the virtual hearings in which they participated.It seems these clients would also be w
312、illing to entertain virtual settings as a preference in the future,as discussed further below.As one counsel commented,it will be hard to explain to certain clients in the future why an in-person hearing isneeded.Another interviewee offered the most pragmatic summation of the virtual experience,part
313、icularly in the current context:Sometimes,good enough is good enough and we should accept that we cannot always operate in a perfect paradigmscenario.Here to stay or a necessary stop-gap in extreme circumstances?Hearings are not the only type of interaction that arbitration users have been experienc
314、ing in a virtual environment.From meeting clients,colleagues and witnesses to attending seminars and conferences,the arbitration community has had to adapt to interacting online.Are virtual settings for hearings and other interactions here to stay even when the pandemic(or similar circumstances)does
315、 not form part of the equation?Or is the current prevalence of remote interactions tolerated as a necessary stop-gap until normal service resumes?A good advocate is a good advocate in any environmentin-person or remoteand the decision whether to choose an in-person or a remote hearing should be made
316、 on one basis only:what is best for the clientOnly 8%of respondents would prefer substantive hearings to be held virtually or procedural hearings to be held in-person 32%26White&CaseTo explore this,we asked respondents what their preferred format for these kinds of interactions is likely to be post-
317、COVID-19i.e.,in normal circumstances,without factors such as social distancing and travel restrictions.A choice of three formats was offered for each category of interaction:in-person,virtual,and mix of in-person andvirtual.Interviewees confirmed they deemed the mixed option to be equivalent to ever
318、y lawyers favourite answer:it depends.As such,it is unsurprising that a mix of in-person and virtual was the most popular option for almost all types of interactions.Respondents expressed a strong preference for this mixed format for meetings with clients(60%),meetings with expert and fact witnesses
319、(60%),arbitration community events and conferences(57%),and counsel team meetings(54%).The only type of interaction for which a different format was narrowly preferred was procedural hearings and conferences,where 48%of respondents would prefer a wholly virtual format,compared to 45%preferring the m
320、ixed option.For substantive hearings,the mixed format was again the most popular choice(48%),but the in-person format was a very close second Chart 18:What would make you more likely to choose a virtual rather than in-person format for hearings post-COVID-19?Time and cost savings compared to in-pers
321、on hearingsIncreased confidence and familiarity with virtual hearings as a result of recent experienceMore reliable and secure technologyMore choice of good quality virtual hearing centers and platform providersExpress provisions in arbitral rules and local arbitration laws recognising the validity
322、of virtual hearingsStandardised guidance and protocols for virtual hearingsEnvironmental sustainabilityMore harmonisation of ethical standardsOther1%61%43%37%36%29%26%24%8%Respondents were able to select up to three options(45%).Only 8%of respondents said they would prefer a purely virtual setting f
323、or substantive hearings.That relative lack of enthusiasm may suggest that those who prefer the mixed approach might be more motivated by the wish to preserve the ability to hold an in-person hearing than by the desire to keep open the option of a virtualarrangement.In a similar vein,while a mixed fo
324、rmat was comfortably the preferred choice of respondents for arbitration community events and conferences,the vast majority of interviewees highlighted the importance of in-person contact.They appreciate the fact that offering access to an event online allows a wide audience to participate,including
325、 people who might not otherwise have been able to do so.However,attending an event in person enhances the sense of community and provides networking opportunities that cannot be fully replicated in a virtual setting.By contrast,with regard to client meetings and meetings with expert and fact witness
326、es,most interviewees agreed that an in-person meeting is rarely required beyond,perhaps,the first encounter.They also reported,however,that the choice of in-person or virtual meetings tended to be largely driven by the clients preference.Some counsel reported increased recourse to routine videoconfe
327、rences with clients,rather than telephone calls,giving them a kind of face-to-face contact(even if virtual)that they would not otherwise have had.When discussing virtual hearings,two key takeaways emerged from From meetings with clients,colleagues and witnesses to attending seminars and conferences,
328、a mix of in-person and virtual was the most popular option for almost all types of interactions 272021 International Arbitration Surveyinterviews.First,there appears to be a growing expectation that virtual hearings will become the default option in the future for procedural hearings and conferences
329、.As several interviewees pointed out,it is difficult now to find a plausible explanation for travelling,sometimes to a different country,to attend a procedural hearing.Similarly,it is hard to say why telephone calls rather than video-conferences have been seen as the standard alternative.As one seni
330、or practitioner noted,it used to be common practice for early case management conferences to be held in person,as the first opportunity to put a face to the dispute and evaluate the dynamics.They felt the advent of videoconferencing technologies could achieve largely the same result,a sentiment echo
331、ed by others.Second,as discussed further below,interviewees consider it is less probable that wholly virtual formats will become the prevalent choice for substantive hearings.In particular,they viewed the in-person format as the dominant arrangement for substantive hearings for cases with complex fa
332、ctual backgrounds.However,they predicted that hybrid hearings(mix of virtual and in-person)would continue to grow in popularity as users gained increased familiarity with the relevant technology and the procedural and logistical demands of remote participation in a hearing.We also asked what would m
333、ake respondents more likely to choose a virtual rather than in-person format for hearings post-COVID-19.Respondents were again asked to select up to three options from a list of suggestions.Time and cost savings compared to in-person hearings(61%)was the most popular choice,followed by increased confidence and familiarity with virtual hearings as a result of recent experience(43%).Technical and pr