2010 International Arbitration Survey:

Choices in International Arbitration

International arbitration is a voluntary and consensual
process and is widely used for the resolution of international
disputes. One of the key advantages of arbitration is its
flexibility. Faced with myriad potential choices, what drives
the decisions of corporations about the law governing the
substance of the dispute, the seat (i.e. legal place) of
arbitration, the arbitration institution, the arbitrators and
other main aspects of the arbitration?
Introduction

Paul Friedland Professor Loukas Mistelis

Head of International Arbitration Practice Group, White & Case LLP Director, School of International Arbitration, Centre for Commercial Law Studies,
Queen Mary, University of London
The sustained growth of international arbitration of confidentiality. The 2010 survey also has a It is my great pleasure and privilege to present now clear that Singapore has made a mark on
as the preferred method of dispute resolution for broader global reach through a substantially this third empirical survey of the School of the arbitration landscape with a number of other
international contracts and investments has larger, and a more geographically diverse, pool International Arbitration, sponsored by places eagerly awaiting to enter this league.
traditionally not been matched by empirical of questionnaire respondents and interviewees. White & Case. This time we focused on choices
Some of the themes of this survey appear
studies concerning international arbitration, In particular, a significant proportion of corporations have and make about arbitration
similar to the themes we explored in the 2006
particularly relating to corporate users’ views respondents and interviewees are based in clauses and the arbitration process: choice of
survey. In 2010, however, we no longer test
and practices and whether international emerging markets, reflecting the increased law(s), choice of seat, choice of arbitrators and
perceptions: we rather go a few steps further in
arbitration ‘delivers’ for them. The surveys investment and infrastructure activity in choice of institutions. We also explored the
exploring choices and the motives behind these
conducted by the School of International those locations. issues of confidentiality and delay. As in our
choices. In addition, we have significantly
Arbitration at Queen Mary, University of London previous surveys we have collected both
White & Case is proud to be the first law firm to expanded the territorial and industry focus of the
have assisted in filling this void by providing quantitative data, based on 136 lengthy
sponsor this survey conducted by the participating corporations to ensure that
significant insights into international arbitration questionnaires, and qualitative data, based on an
distinguished School of International Arbitration. emerging economies are more fully represented
and how and why its use has developed over unprecedented 67 in-depth interviews. This
The School has produced a first rate in our sample. We have also conducted the
recent years. remarkable sample has enabled us to shed more
assessment of current trends in international largest ever number of face-to-face interviews.
light on arbitration and how corporations
This year’s survey, entitled ‘Choices in arbitration, which will be of great interest to the
perceive it. The findings provide a great deal of food for
International Arbitration’, considers the key arbitration community. We extend our thanks to
thought and will also be analysed further in a
factors that influence corporate choices about Professor Loukas Mistelis, White & Case International arbitration is an ever-expanding
much longer academic article to be published in
international arbitration. The survey revisits and Research Fellow Penny Martin and area of legal practice but also of academic study.
the American Review of International Arbitration.
expands upon some of the themes of the first Dr Stavros Brekoulakis for their high quality work We still have rather scarce empirical data and
What follows is a mere executive summary.
survey conducted in 2006 which examined in producing this publication, as well as to all the this survey aims to contribute to the foundation
I hope you will find the survey of interest to you
corporate attitudes towards international corporate counsel who generously contributed of knowledge essential for the further
and your business.
arbitration, and in doing so allows an analysis of their time and energy to this survey. development of the subject. It appears from this
the changes over the past four years. survey that arbitration has a significant impact
In addition, it covers new areas in depth such as on the economy at the places where it is
corporate policies toward international practised and competition is increasing amongst
arbitration, how pro-active corporate choices venues that wish to attract more arbitration
seek to maximize the effectiveness of proceedings: in addition to the well established
arbitration, and corporate perceptions London, Paris, Switzerland and New York it is
Contents

Executive Summary 2 Appendices 33

The Study 4 Methodology 34

1 Choices about international arbitration 5 Glossary 37

2 Choice of the law governing the substance of the dispute 11 School of International Arbitration,
Queen Mary, University of London 38
3 Choice of the seat of arbitration 17
White & Case International Arbitration Group 39
4 Choice of arbitration institution 21
White & Case International Arbitration Partners 40
5 Appointment of arbitrators 25
Acknowledgements 42
6 Confidentiality 29

7 Time and delay 32

2010 International Arbitration Survey: 1

Choices in International Arbitration
Executive Summary

Arbitration is a voluntary and consensual process and is widely used for the resolution of international disputes.
One of the key advantages of arbitration is its flexibility. Parties can choose the law governing the substance of
the dispute,1 seat of arbitration,2 arbitration institution (if one is used) and the arbitrators, and also make a range
of other decisions that shape the jurisdictional scope, the procedural make up and practical conduct of the
arbitration. The choices made by the parties can result in important legal and tactical advantages.

The objective of this study was to determine Choices about international Choice of the law governing the Choice of the seat of arbitration
the key factors that drive corporate choices
arbitration substance of the dispute ■■ Choice of seat is mostly influenced by
about arbitration: how are decisions made
68% of corporations have a dispute Choice of governing law is mostly influenced ‘formal legal infrastructure’, the law
about arbitration, who influences these ■■ ■■

resolution policy. Whether or not they have by the perceived neutrality and impartiality of governing the contract and convenience.
decisions and what considerations are
uppermost in the minds of corporate counsel a policy, corporations generally take a the legal system with regard to the parties ■■ London is the most preferred and widely
reasonably flexible approach to negotiating and their contract, the appropriateness of the used seat of arbitration.
when they negotiate arbitration clauses.
arbitration clauses. They have strong law for the type of contract and the party’s
preferences regarding confidentiality and familiarity with the law. ■■ London, Paris, New York and Geneva are the
This study of the views of corporate counsel
language and reasonably strong preferences seats that were used most frequently by
at leading corporations around the world The decision about governing law is a
regarding governing law and seat. In all
■■ respondents over the past five years. The
examines the factors that influence the complex issue to which most respondents level of user satisfaction for these seats is
choices made by corporations about the cases, the result depends on the nature of
and interviewees appear to take a high. For all four seats a majority of users
the contract and the relative bargaining
aspects of an international arbitration. The considered and well thought out approach. described them as either ‘excellent’ or
positions of the parties.
study was conducted over a seven month ‘very good’.
■■ 40% of respondents use English law most
period and comprised two phases: an online ■■ The law governing the substance of the
frequently, followed by 17% who use ■■ Singapore has emerged as a regional leader
questionnaire completed by 136 respondents3 dispute is usually selected first, followed by
New York law. in Asia.
and 67 in-depth interviews. Further the seat and then the institution/rules. 68%
information about the sample of questionnaire of respondents believe that the choices ■■ The use of transnational laws and rules to ■■ Respondents have the most negative
made about these factors influence one govern disputes, at least partially, is perception of Moscow and mainland China
respondents and interviewees can be found in
another, particularly in relation to the reasonably common (approximately 50% as seats of arbitration.
the methodology section in the appendices.
governing law and seat. have used them at least ‘sometimes’), but
The results of the study are set out under use varies depending on the particular law
thematic headings, each including statistics ■■ The general counsel is usually the lead
or rules.
and analysis drawn from the empirical data. decision-maker on arbitration clauses,
although the legal department may only be ■■ 53% of respondents believe that the impact
The key findings from the study are: brought into negotiations at a late stage. of the governing law can be limited to some
extent by an extensively drafted contract, 29%
believe it can be limited to a great extent.
1. We also refer to this as the ‘governing law’ in this report.
2. I.e. the legal place of arbitration.
3. We refer to questionnaire respondents as both ‘questionnaire respondents’ and ‘respondents’ in this report.

2
Choice of arbitration institution Appointment of arbitrators Confidentiality Time and delay
■■ Corporations look for neutrality and ■■ Open-mindedness and fairness, prior ■■ The responses indicate that confidentiality ■■ Disclosure of documents, written
’internationalism’ in their arbitration institutions experience of arbitration, quality of awards, is important to users of arbitration, but it is submissions, constitution of the tribunal and
and expect institutions to have a strong availability, knowledge of the applicable law not the essential reason for recourse to hearings are the main stages of the arbitral
reputation and widespread recognition. and reputation are the key factors that arbitration. process that contribute to delay.
influence corporations’ choices about
■■ The ICC is the most preferred and widely ■■ 50% of respondents erroneously believe ■■ According to respondents, parties
arbitrators.
used arbitration institution. that arbitration is confidential even where contribute most to the length of
■■ 50% of respondents have been there is no specific clause to that effect in proceedings, but it is the tribunal and the
■■ The ICC, LCIA and AAA/ICDR are the
disappointed with arbitrator performance. the arbitration rules adopted or the arbitration institution that should exert
institutions used most frequently by
arbitration agreement and 12% did not control over them to keep the arbitral
respondents over the past five years. For all ■■ Corporations want greater transparency
know whether arbitration is confidential in process moving quickly.
three institutions, a majority of users rated about arbitrator availability, skills and
these circumstances.
them as either ‘good’ or higher. experience and, to some extent, greater
autonomy in the selection of arbitrators.
■■ Respondents have the most negative
perception of CRCICA, DIAC and CIETAC. ■■ 75% of respondents want to be able to
assess arbitrators at the end of a dispute.
Of these, 76% would like to report to the
arbitration institution (if any). 30% would
like to be able to submit publicly
available reviews.

Please note: Due to rounding, some percentages

shown on charts may not equal 100%.

2010 International Arbitration Survey: 3

Choices in International Arbitration
The Study
1 Choices about international arbitration

Corporations generally adopt a flexible approach to negotiating arbitration clauses.

Summary Do corporations have dispute Chart 1: Do corporations have a dispute from ‘Not a feature of policy’), the arbitral
resolution policy? institution/rules (92%), language (90%), seat
■■ 68% of corporations have a dispute resolution policies and to what
of arbitration (85%) and confidentiality (84%).
resolution policy. Whether or not they have extent are they mandatory? Slightly less common was a position to adopt
a policy, corporations generally take a
reasonably flexible approach to negotiating Given the wide debate amongst corporate arbitration rather than state court litigation
arbitration clauses. They have strong users about dispute resolution in general and (81%) and regarding the extent of discovery
preferences regarding confidentiality and international arbitration in particular, we sought and disclosure (68%). Respondents also
language and reasonably strong preferences to determine how important dispute mentioned other features such as the use of
regarding governing law and seat. In all resolution policies are to international ‘stepped’ or ‘tiered’ clauses that require
cases, the result depends on the nature of corporations, whether corporations have parties to engage in mediation or other forms
the contract and the relative bargaining formulated their own specific policies and how of alternative dispute resolution before
positions of the parties. resorting to arbitration, or provisions as to the
they use them during negotiations with other
■■ The law governing the substance of the corporations. Yes 68%
number of arbitrators.
dispute is usually selected first, followed by No 31%
We asked corporations if they have a policy Even though a high proportion of corporations
the seat and then the institution/rules. 68% Don’t know 1%
regarding the dispute resolution mechanisms have a position on the key aspects of the
of respondents believe that the choices
made about these factors influence one to be incorporated into their contracts. 68% of arbitration clause, they adopt a range of
Corporations were asked to indicate the main
another, particularly in relation to the respondents said they do. The interviews different approaches during negotiations.
features of their policy and the extent to which
governing law and seat. revealed the broad scope of arrangements There were not a large number of policies
they are mandatory. The results indicate that
that are considered to be within the definition with mandatory features: 33% of companies
■■ The general counsel is usually the lead the majority of corporations enter into
of ‘policy’: these range from informal include confidentiality as a mandatory
decision-maker on arbitration clauses, contractual negotiations with a position on the
although the legal department may only be understandings and practices established by requirement and 28% specify the use of a
main aspects of the dispute resolution clause.
brought into negotiations at a late stage. conduct through to formal written policies, particular language.
The vast majority of respondents that have a
model clauses and standard terms. policy have a position on the preferred law to Otherwise, policies can be categorised under
govern the substance of the dispute (94%, two broad headings. First, either they adopt a
represented in Chart 2 as all categories apart strong preference that can be deviated from if

2010 International Arbitration Survey: 5

Choices in International Arbitration
1 Choices about international arbitration contd.

it is a deal-breaker, or if approval is obtained Chart 2: Main features of corporations’ dispute resolution policies and the extent Some interviewees explained how their
from an internal committee or division or, to which they are mandatory policies operate as a blueprint for the
second, they are more permissive and provide negotiation of an arbitration clause. Some
a starting point for the negotiator who has policies set out the ‘acceptable’ governing
discretion to make the final decision. These Arbitration not state court 10 40 31 19 laws, seats and institutions that may be
are represented in the two middle categories offered or accepted in negotiations. According
Preferred seat of arbitration 8 43 33 15
in Chart 2. to interviewees, this flexible approach is an
effective way to encourage uniformity of
43% of policies adopt the stricter approach to Preferred arbitral institution/rules 9 37 46 8
approach in legal teams of large corporations.
selecting the seat of arbitration and 33% are
Law governing the substance of the dispute 17 41 36 6 6 It can also provide an advantage in
more flexible. Regarding the law governing the
negotiations because the corporation has
substance of the dispute, 41% of policies Language 28 37 27 10
already weighed up the risks and advantages
adopt the stricter approach, with a further
attaching to particular choices and can suggest
17% taking a mandatory approach, whereas Confidentiality 33 29 21 16
strategically favourable alternatives to its
36% are more permissive. 40% adopt a Extent of disclosure/discovery/document
production 15 20 33 32 counterparty.
stricter approach regarding their preference for
arbitration over state court litigation and 31% 0 20 40 60 80 100 It is widely appreciated by corporate counsel
are more open to negotiation. In general, percentage of respondents that negotiations take on a dynamic character
policies about preferred arbitral institutions/ and that it is important to bear the business
Must comply at all times
rules are more relaxed, with 46% adopting a objectives in mind while securing the best
Can deviate from policy if it is a deal-breaker/
permissive approach (however an appreciable Can deviate from policy with approval of an
possible dispute resolution agreement. In
37% do adopt a stricter approach). internal committee or division interviews, a frequent comment was that
Flexible/left to judgment of negotiator/ sometimes business negotiators do not keep
Preferences expressed by policy are merely lawyers up-to-date so that lawyers dealing
guidelines/desirable
Not a feature of policy
with dispute design and resolution are often
consulted only at the stage when the
negotiations are nearly completed, an issue

6
that is discussed further below. In these Chart 3: The negotiation stance of corporations on key arbitration issues Few issues are considered deal-breakers.
circumstances, corporate counsel may be Confidentiality was again identified as a
Law governing the substance of the dispute 9 78 5 6 2
compelled to concede more issues than they significant issue (27% said it is a deal-breaker).
would otherwise wish. Law governing the arbitration agreement 9 75 6 6 4 In respect of confidentiality responses varied
in relation to the industry sector. 15% of
What negotiation stance do Seat of arbitration 6 75 10 6 3
respondents said language is a deal-breaker,
corporations adopt with regard Language of the arbitration 15 65 6 10 6 4 while 34% said that language will be
to certain aspects of the Selection of particular administered institutional rules (e.g. ICC conceded if it is a deal-breaker for the
5 74 14 5 3
Rules, LCIA Rules, AAA/ICDR Rules)
counterparty (included in the 65% in Chart 3).
arbitration? Selection of non-administered ad hoc rules (UNCITRAL) 5 59 17 2 17
The law governing the substance of the
Respondents were asked about their Process for appointment of arbitrators 2 67 21 5 4 dispute, the seat and the institution/rules are
negotiation stance on a range of arbitration
Choice of Appointing Authority (if UNCITRAL 3 59 22 3 13 also important issues, but the majority of
issues, regardless of whether their corporation Rules are selected)
respondents will concede these issues if there
has a dispute resolution policy. We were Selection of additional procedural rules (e.g. IBA Rules on the 1 56 28 6 3 12
Taking of Evidence in International Commercial Arbitration) are compelling reasons or they receive
interested to understand how crucial it is for
Confidentiality 27 52 12 4 4 something in return (represented in the three
parties to control these issues and in what
categories referring to party willingness to
circumstances they may be willing to concede Extent of disclosure/discovery/document production 10 59 19 3 9
concede in Chart 3). 78% of respondents will
certain points. Reflecting the approach in Method of allocation of costs 6 63 23 3 6 concede the governing law in these
corporations’ dispute resolution policies, most
0 20 40 60 80 100 circumstances, 75% will concede the seat
adopt a flexible and commercial approach.
Never willing to concede; issue is a deal-breaker
percentage of respondents and 74% will concede the institution/rules.
Willing to concede in limited circumstances if it is a deal-breaker/ 14% of respondents have ‘no particular
Willing to negotiate on these issues if other advantages are secured in main contract, or arbitration clause/ preference’ regarding institution/rules, higher
Willing to concede in some circumstances – depending on relative bargaining positions of parties/compelling than the proportion for governing law and
business reasons (e.g. value of deal, ongoing relationship) seat. This finding suggests that selecting the
No particular preference on issue, open to negotiation
governing law and seat is more important for
Corporate policy is followed
Not applicable

2010 International Arbitration Survey: 7

Choices in International Arbitration
1 Choices about international arbitration contd.

corporations than selecting the arbitration In what order are choices made that in their experience, the governing law and lawyers before the negotiation of the dispute
institution/rules. This could be driven by the the seat often ‘go together’ e.g. English law resolution agreement begins. This in turn is
about governing law, seat and
view expressed by some interviewees that and seat in London. This is perceived as being strongly influenced by the type of the contract
the development of arbitration institutions and institution/rules and do the more ‘rational’ or ‘efficient’ – both in terms of and the counterparty.
the competition between them has resulted in choices influence one another? the cost and conduct of the arbitration (e.g.
For example, finance agreements are highly
standardisation or homogenisation, so that the likely location of arbitrators and specialist
We asked respondents whether decisions likely to be subject to English or New York law,
differences between seats and between lawyers), but also less risky from a legal
about governing law, seat and institution/rules as these are very well established laws and are
governing laws are more significant than the perspective (e.g. if there is need for recourse
are settled in a particular order. considered to deal efficiently with the issues
differences between arbitration institutions. to the courts of the seat during the arbitration
raised in finance agreements. If this is correct,
26% of respondents consider that the order is or to enforce the award). The issue of institution
Interviews revealed that elements of the then the primacy of substantive law is a natural
governing law, seat and institution/rules. often appears to be decoupled (e.g. English law
arbitration clause may be traded off against corollary of the fact that the parties are more
24% think that the order is governing law, and seat in London may not necessarily lead to
one another, but it would be rare to trade interested in how the contractual relationship
institution/rules and seat. 23% said that the use of the LCIA). However, practical
these off against clauses in the main contract. will work between them rather than how any
three issues are decided at the same time. considerations can sometimes be taken into
Interviewees said that in most circumstances potential disputes will be resolved. In other
Overall, 51% of respondents consider that account (e.g. the convenience of having the
the dispute resolution clause is considered to words, the parties choose the substantive law
governing law is the first issue decided while seat and headquarters of the institution in the
be of lesser importance than the main first, as this will apply throughout the
23% of respondents think that is an issue of same place). In most circumstances, the
commercial terms. Overall, the approach contractual relationship, and the seat or the
primary importance, decided concurrently. institution is considered a ‘free-floating’ issue.
adopted by a corporation to a particular institution/rules second, as this choice will only
Furthermore, institutions such as the ICC are
contractual negotiation depends to a high We also asked respondents whether the matter if a dispute arises at a later stage. It
considered by some to have a type of
degree on the nature of the contract and the choices made by the parties influence one seems that parties choose the governing law
‘a-national’ profile and appeal.
corporation’s relative bargaining position, another, i.e. whether the choice of a particular for the contract to work and then seat/
including the specific commercial interest in law governing the substance of the dispute Most interviewees confirmed the primacy of institution in case the contract does not work.
entering into this contract with this party. often leads to the selection of a particular seat governing law over other choices. When
The counterparty also plays a significant role in
Other important commercial drivers are the or arbitration institution. 68% of respondents exploring this further with interviewees, they
prioritising choices: a contracting party from a
need to penetrate a specific market or region. agreed that the choices influence one another. indicated that this is natural: the governing law
similar legal system will readily agree to a law
In interviews, a number of interviewees said comes first and is decided by the corporate
that can reasonably be assumed to be

8
appropriate for the contract; a contracting party Chart 4: The order of choices about the Chart 5: First choice ranking: governing Chart 6: Do the choices made by parties
from a very different legal system will typically governing law, seat and institution/rules law, seat or institution/rules about aspects of arbitration clause
engage in a discussion as to which law is influence one another?
appropriate to govern the contract and often a
neutral, well-established law will be preferred.
Almost invariably, interviewees indicated that
they would be most happy first with their own
law and secondly with well-established and
well-known laws, such as English, New York
and Swiss law. These issues are discussed
further in Section 2.
However, a number of interviewees also said
that depending on the relative bargaining
positions of the parties, their location, their Governing law, seat, institution/rules 26% Law governing the substance of the dispute 51% Yes 68%
legal cultures and the nature of the contract, Governing law, institution/rules and seat 24% Arbitral institution/rules 12% No 21%
the apparent ‘nexus’ between governing law All issues decided at same time 23% Seat of arbitration 9% Don’t know 9%
and seat and, to a lesser extent, institution Other combinations 21% All issues decided at same time 22% Other 2%
may be broken and the various parts of the Not possible to say/don’t know 6% Not possible to say/don’t know 6%

clause traded off as part of negotiations.

2010 International Arbitration Survey: 9

Choices in International Arbitration
1 Choices about international arbitration contd.

Who makes the ultimate decision Chart 7: Who makes the ultimate decision about arbitration clauses?
about arbitration clauses? General counsel 33%

Corporations vary significantly in terms of

General counsel in consultation 15%
organisation of their internal legal teams. We with external counsel
asked questionnaire respondents who makes 14%
Specialist corporate counsel
the ultimate decision about the choice of law,
seat and institution. 33% of respondents said Commercial/business unit 11%
it is the general counsel and 15% said it is the
Regional corporate counsel 11%
general counsel in consultation with external
counsel. 14% said that the decision is made
Board 5%
by ‘specialist corporate counsel’. Interestingly,
in 11% of corporations the commercial or Other 11%
business unit will make the ultimate decision.
0 5 10 15 20 25 30 35
The 11% who selected ‘other’ mainly said the
percentage of respondents
decision is made by the general counsel or
specialist legal counsel in consultation with
the relevant business unit.
A number of interviewees referred to the
difficulties in ensuring that arbitration clauses
are considered early in the negotiation
process. Many referred to it as the “2am
clause” or similar and described how often
they are brought into negotiations late and
expected to conclude dispute resolution
clauses with minimal negotiation because the
commercial terms are settled.

10
2 Choice of the law governing the substance of the dispute

The perceived neutrality and impartiality of the legal system, the appropriateness
of the law for the type of contract and the party’s familiarity with the law are
extremely important factors in the choice of governing law.

Summary What drives decisions about The interviews suggested that familiarity is a business have unwritten, or even written, lists
powerful influence. A number of interviewees of the laws they are prepared to consider as
■■ Choice of governing law is mostly the law governing the
said that if they cannot adopt their own governing laws.
influenced by the perceived neutrality and substance of the dispute? national law as the governing law, they will
impartiality of the legal system with regard Two respondents added an additional factor
to the parties and their contract, the We asked questionnaire respondents to rate seek alternatives that have a similarity with
which they both ranked as ‘very important’, a
appropriateness of the law for the type of the importance of a list of factors in their law (this might include a law on which
factor that was also raised by a number of
contract and the party’s familiarity with influencing their corporations’ choices about their national law has been modelled,
interviewees: the impact of choice of law on
the law. the law governing the substance of the e.g. Swiss law for Turkish companies, or
the enforceability of the award. Some
dispute. Respondents could rate a particular a law from the same broad legal tradition,
■■ The decision about governing law is a interviewees explained that they will consider
complex issue to which most respondents factor as ‘very important’, ‘quite important’, e.g. common law or civil law).
where the award is likely to be enforced and
and interviewees appear to take a ‘somewhat important’, ‘not very important’ or Strategy also has an impact. Some either select that law or another governing law
considered and well thought out approach. ‘not important at all’. Respondents were also interviewees more experienced in that would be consistent with that jurisdiction
free to add and rate additional factors. We international arbitration said that they will try (i.e. common law or civil law, or a law from
■■ 40% of respondents use English law most
frequently, followed by 17% who use weighted the results to reveal the highest to project forward to any potential disputes which the law of that jurisdiction originated) or
New York law. ranked influences on choice of governing law and anticipate which national laws may that is highly regarded by the courts of that
(as a percentage of the maximum possible provide them with an advantage (e.g. limited jurisdiction.
■■ The use of transnational laws and rules to weighted score for each factor).
govern disputes, at least partially, is latent defects period when the party is
The influence of corporate policy and robust
reasonably common (approximately 50% The most important factor is the perceived entering into a construction contract, or
negotiation stances of counterparties on
have used them at least ‘sometimes’), but neutrality and impartiality of the legal system directors’ liability and corporate governance in
governing law discussed in Section 1 are also
use varies depending on the particular law (66%), followed by the appropriateness of the joint venture agreements).
reflected in the results (35% and 37%,
or rules. law for the type of contract (60%) and More generally, a number of interviewees said respectively). Consistent with the finding in
■■ 53% of respondents believe that the familiarity with and experience of the they will research potential governing laws, or Section 1 that governing law is the first issue
impact of the governing law can be limited particular law (58%). The analysis of corporate seek advice from their external counsel before decided (according to 51% of respondents),
to some extent by an extensively drafted counsel therefore appears to take into account making their decision. It also transpired from the choice of seat and institution do not weigh
contract, 29% believe it can be limited to a broad range of factors: namely the the interviews that corporations with heavily on the choice of law (26% and 27%
a great extent. effectiveness of the law, its technical substantial experience in international respectively). Place of performance of the
appropriateness and strategic aspects.
2010 International Arbitration Survey: 11
Choices in International Arbitration
2 Choice of the law governing the substance of the dispute contd.

contract (32%) is mainly a ‘quite important’ or Chart 8: Top influences on the choice of the law governing the substance of the dispute When they are free to do so,
‘somewhat important’ factor and does not
what governing law do
seem to have a particularly strong influence on
the ultimate decision. Least important are the
Neutrality and impartiality of the legal system 66%
corporations normally choose?
Appropriateness for type of contract 60%
location of the legal team, recommendations 44% of corporations said that they choose the
of external counsel and the location of the Familiarity with and experience of the particular law 58% law of their home jurisdiction if they are free
other party. to do so. Another 25% said that they choose
Choice of law imposed by other party 37%
English law, 9% Swiss law and 6% choose
Corporate policy, standard terms and conditions 35% the laws of New York (where these are not the
Place of performance of the contract 32% law of their home jurisdiction). Some
respondents also pointed out that their
Location of company headquarters 29%
preference as to choice of law will depend on
Location of the arbitration institution chosen for the arbitration 27% the contract and the location of the specific
business unit concerned.
Seat chosen for the arbitration 26%

Location of legal team 23%

Recommendation of external counsel 22%

Location of other party 21%

0 20 40 60 80
weighted percentage

12
Chart 9: Governing law corporations We also asked respondents to explain why Which law is most frequently Chart 10: Governing laws most
most frequently choose when they are they choose their most frequently chosen law. frequently imposed by counterparties
free to do so
imposed by counterparties?
Most respondents referred to “familiarity” and
“predictability”, “foreseeability” or “certainty”. Respondents were also asked which law is
They also referred to the existence of a “well chosen if the governing law is imposed by
developed jurisprudence” and “international their counterparties. 53% of respondents said
acceptance”. Some also referred to the that the counterparty usually chooses its
appropriateness of the law for particular types home jurisdiction, whereas English law (21%)
of contracts (e.g. maritime, oil and gas, and New York law (10%) are also
finance and reinsurance) and more general frequent choices.
principles that are seen to be desirable
(e.g. respect for freedom of contract). A
number of interviewees referred to these
Law of home jurisdiction 53%
Law of home jurisdiction 44% factors when discussing why they select English law 21%
English law 25% English law in particular, so the predominance New York law 10%
Swiss law 9% of English law appears to derive from the fact US law (other than New York law) 3%
New York law 6% that many consider it to be one of the national Swiss law 1%
French law 3% laws that best fulfils these criteria. In addition, French law 1%
US law (other than New York law) 1% the prevalence of the English language, the Other 1%
Other 3% Not possible to say/none in particular 11%
appeal of the English legal system historically
Not possible to say/none in particular 9%
throughout the Commonwealth and more
This is certainly a strong finding in favour of recently in the Arab world may also explain
the application of English law. Except from the this finding.
cases where for obvious reasons parties
would like to apply their own law, English law
is far more preferable for respondents than
the next most popular choice.

2010 International Arbitration Survey: 13

Choices in International Arbitration
2 Choice of the law governing the substance of the dispute contd.

Which law is used most he will try to negotiate at least the law of Chart 11: Governing laws most
another Eastern European country. In the US, frequently used by corporations
frequently overall?
New York law is generally preferable, although
How is the choice of governing law finally other preferred options include Texas,
arrived at? Interviewees described how in Delaware and Maryland law. In Latin America,
contractual negotiations each party normally the law of one of the South American
proposes its national law as the governing law countries, English law and New York law are
of the contract, or one party puts forward its the main choices. Which law is ultimately
national law in its standard terms and chosen will depend on the particular parties
conditions. When the bargaining power of the and the contract.
parties is equally matched, the ‘home’ law will
According to the responses,4 the most
normally be rejected and the parties will find a
frequently used governing law is English law
mutually acceptable solution, taking into
(40%), followed by New York law (17%). The
account the factors indicated above. In such a English law 40%
‘other’ laws include a broad range of national
case a ‘neutral’ law will be chosen. New York law 17%
laws. The most commonly cited by
Swiss law 8%
The interviews indicated that there are some respondents were Californian law, German law
French law 6%
generally acceptable governing laws for and Australian law. US law (respondents did not specify) 5%
parties of certain nationalities which will be Other 24%
‘pooled’ in negotiations in order to reach an
acceptable solution: for example, Hong Kong,
Singapore and English law may be acceptable
in Asia. In Europe, English, Swiss or French
law may be strong possibilities. Alternatively, a
law from the same region or legal culture may
be acceptable: an interviewee from Eastern
Europe said that if he cannot get his own law,

4. A small number of respondents listed more than one equally preferred law governing the substance of the dispute and these were taken into account in the final statistics.

14
Do corporations use The uptake of international principles is Interviewees said that transnational rules are
generally more limited than the other often used as supplementary or definitional
transnational laws or rules to
categories (81% have never used concepts alongside a governing national law
govern their disputes? determination ex aequo et bono or as amiable (e.g. the use of INCOTERMS or the UCP to
To complete the picture regarding governing compositeur, 58% have never used general define certain concepts under a contract),
law, we asked respondents whether they have principles of law, commercial practices or rather than as a law that is intended to
used a number of international laws, fairness and equity). This can perhaps be regulate all substantive legal issues.
transnational rules or principles to govern explained by the fact that these principles are
their disputes. more uncertain in terms of their content than
Chart 12: How often do corporations use certain transnational laws or rules to
other transnational laws or rules. However, it
We referred to four main categories: first, govern their disputes?
is significant that 26% said that they use
unwritten international principles (e.g. broad
general principles of law, commercial practices General principles of law, commercial 58 26 16
concepts fairness and equity, determination practices or fairness and equity
or fairness and equity ‘sometimes’ and 16%
ex aequo et bono); second, international Determination ex aequo et bono or as
said they use them ‘often’. amiable compositeur
81 16 2
treaties and conventions (e.g. the United
International treaties or conventions (e.g. the United
Nations Convention on Contracts for the As for the more concrete international rules Nations Convention on Contracts for the International 53 41 6
and laws, the majority of respondents have Sale of Goods (CISG))
International Sale of Goods (CISG)); third,
Commercial law rules contained in codifications (e.g. the
commercial law rules relating to trade and never used the UCP and the CISG in their UNIDROIT Principles, INCOTERMS)
39 48 14

international contracts (e.g. UNIDROIT contracts: 57% and 53% respectively. Other international rules (e.g. Uniform Customs 57 35 8
Principles of International Commercial However, the remaining 43% and 47% have and Practice for Documentary Credits (UCP))

Contracts 2004 (UNIDROIT Principles) and used them at least ‘sometimes’. 0 20 40 60 80 100
percentage of respondents
INCOTERMS); fourth, other international rules The use of UNIDROIT Principles and
(e.g. Uniform Customs and Practice for INCOTERMS is higher amongst respondents. Never
Documentary Credits (UCP). The extent to 62% of respondents have used UNIDROIT Sometimes
which respondents use the laws or rules in Principles and/or INCOTERMS at least Often
each of the four categories varied. ‘sometimes’. Interviews clarified that of the
two, INCOTERMS are used more frequently.

2010 International Arbitration Survey: 15

Choices in International Arbitration
2 Choice of the law governing the substance of the dispute contd.

To what extent can an the reliance on the governing laws. Examples

can be found in the contract drafting practices
extensively drafted contract
in the US and other jurisdictions influenced by
limit the impact of the the US, both in Latin America and Asia.
governing law?
Chart 13: An extensively drafted contract
We were also interested to ask corporate can limit the impact of the governing law
counsel whether they think that an extensively
drafted contract (often referred to as a
‘regulatory’ contract) can limit the impact of
the governing law. In some circumstances,
corporations may seek to ‘cover the field’ with
extensive contractual terms in order to reduce
uncertainty and deal with all anticipated issues
during negotiations.
53% of respondents think that an extensively
drafted contract can limit the impact of the
governing law ‘to some extent’. 29% think
that the impact could be limited ‘to a great
To a great extent 29%
extent’. This suggests that corporate counsel To some extent 53%
do seek to cover off at least some substantive To a limited extent 15%
legal issues in their contracts. Some parties Not at all 1%
will routinely draft extensive contracts in an Don’t know 2%
effort to cover all eventualities in the
performance of the contract, thereby limiting

16
3 Choice of the seat of arbitration

‘Formal legal infrastructure’, the law governing the contract and convenience are
important factors that drive the choice of the seat of arbitration.

Summary What drives decisions about Section 1. Convenience is also an important

factor (45%) including location, industry
■■ Choice of seat is mostly influenced by the seat of arbitration?
specific usage, prior use by the organisation,
‘formal legal infrastructure’, the law
We asked questionnaire respondents to rate established contacts with lawyers in the
governing the contract and convenience.
the importance of a list of factors in jurisdiction, language and culture and the
■■ London is the most preferred and widely influencing their corporations’ choices about efficiency of court proceedings. Also
used seat of arbitration. the seat of arbitration (the legal place of consistent with the results in Section 1
■■ London, Paris, New York and Geneva are arbitration). Respondents could rate a regarding the order of choices about law, seat
the seats that were used most frequently particular factor as ‘very important’, ‘quite and institution and the influences between
by respondents over the past five years. important’, ‘somewhat important’, ‘not very them, the choice of institution is of low
The level of user satisfaction for these important’ or ‘not important at all’. importance in influencing the choice of seat.
seats is high. For all four seats a majority of Respondents were also free to add and rate
users described them as either ‘excellent’ As with the choice of governing law,
additional factors. We weighted the results to
or ‘very good’. corporations are focused on both the
reveal the highest ranked influences on
technical and practical issues when they
■■ Singapore has emerged as a regional leader choice of seat (as a percentage of the
choose a seat. Similarly, the location of the
in Asia. maximum possible weighted score for
relevant people involved in the arbitration and
each factor).
■■ Respondents have the most negative the recommendations of external counsel are
perception of Moscow and mainland China The most important factor is the ‘formal legal the least important factors.
as seats of arbitration. infrastructure’ at the seat (62%), which
includes the national arbitration law and also
the track record in enforcing agreements to
arbitrate and arbitral awards in that jurisdiction
and its neutrality and impartiality. This was
followed by the law governing the substance
of the dispute (46%), reflecting the findings
on the nexus between law and seat in

2010 International Arbitration Survey: 17

Choices in International Arbitration
3 Choice of the seat of arbitration contd.

Chart 14: Top influences on the choice of the seat of arbitration What aspects of the formal include the home jurisdictions of the two
parties. They will then positively select from
legal infrastructure of a seat are
Formal legal infrastructure (e.g. the national amongst the acceptable seats depending on
arbitration law, track record in enforcing 62%
most important? which is considered to be most
agreements to arbitrate and arbitral awards,
neutrality and impartiality of legal system)
Neutrality and impartiality (34%) and ‘arbitration‑friendly’.
Law governing the substance of the dispute 46% ‘arbitration-friendliness’ of a seat (i.e. the
record of the courts in enforcing agreements
What aspects of the general
Convenience (e.g. location, industry specific usage/prior
use by organisation, established contacts with lawyers in
jurisdiction, language/culture, efficiency of court proceedings)
45%
to arbitrate and arbitral awards) (25%) are the infrastructure of a seat are
General infrastructure (e.g. costs, access,
31%
aspects of ‘formal’ legal infrastructure that most important?
physical infrastructure) most influence the choice of seat. Also
Cost is the most important aspect of general
important is whether the country concerned is
Corporate policy, standard terms and conditions 29% infrastructure that influences that choice of seat
a signatory to the New York Convention 1958
(42%), followed by good transport connections
Location of people (e.g. your organisation’s
employees, its legal and other advisors, experts,
(20%), a factor that might be expected to be a
28% (26%) and hearing facilities (including
accountants, secretaries and hearing staff) higher priority for corporations, but given the
translators, interpreters and court reporters)
Location of the arbitration institution chosen 24% wide acceptance of the New York Convention
for the arbitration (21%). Respondents also listed safety and the
internationally it appears to be expected in
absence of bribery as important factors.
Choice of seat imposed by other party 23% most countries. Whether the national
arbitration law is based on the UNCITRAL What aspects of the
Recommendation of external counsel 22% Model Law, the ability to join third parties and
the availability of appeals against awards are
convenience of a seat are
0 10 20 30 40 50
weighted percentage
60 70
relatively unimportant compared to most important?
these factors. Efficiency and promptness of court
We also asked respondents to further specify top three factors from a list under each of proceedings is the most important aspect of
It appears that parties will usually first
which aspects of formal legal infrastructure, these headings. We weighted the results to the convenience of a seat (20%), followed by
negatively delimit the seats that meet a basic
general infrastructure, convenience and the reveal the highest ranked influences on choice language (16%), established contacts with
neutrality and impartiality threshold by
location of people most influence the choice of seat (as a percentage of the total score specialised lawyers operating at the seat (15%)
excluding those they consider do not meet
of seat. Respondents were asked to rank the allocated by respondents across all factors). and the location of the parties (11%). Cultural
this basic requirement, which would normally

18
familiarity is also an important factor (10%). followed by Geneva (9%) and Paris, Tokyo and The main reasons cited by respondents for diluted some of the preferences for more
Interestingly, previous experience of the seat is Singapore (each 7%) and New York (6%). their preferences mirrored the top reasons for ‘traditional’ seats, reflecting the broad range of
not a particularly important factor (7%), nor is Respondents also referred to a broad range of the selection of seat indicated above. Overall, preferences regarding seat.
the location of the arbitrators (6%). other seats, suggesting that parties may be factors such as proximity, availability of quality
increasingly looking beyond the ‘traditional’ arbitrators and expert legal advice, Which seats have corporations
What aspects of the location of seats of arbitration. ‘arbitration‑friendliness’, the national arbitration used most frequently over the
people are most important? law, neutrality, reliability, track record and past five years, why were they
Chart 15: Preferred seats of arbitration stability were mentioned by respondents.
The location of specialised lawyers is the most selected and how do their users
important aspect of the location of people that In the 2006 School of International Abitration/ rate them?
affects the choice of seat (39%). This is an PricewaterhouseCoopers survey, we also
interesting finding that would confirm an asked respondents about their preferred We asked respondents to note the five seats
anecdotal impression that high quality legal arbitration venues. In that survey, respondents their organisation has used most frequently
services are a wealth generating resource: were asked to rank their top three preferred over the past five years (or a shorter specified
they attract people and consequently income venues. Of the first choices (using the terms period), indicate the top three reasons why
to that country. The location of the adopted in that report), 38% preferred the seat was selected and rate each of them
organisation’s employees (27%) and the England, 12% each preferred Switzerland and overall as either ‘excellent’, ‘very good’, ‘good’,
availability of hearing staff (20%) are the next United States, 10% preferred France, 5% ‘adequate’ or ‘poor’ without reference to any
most important factors. preferred Japan and 3% preferred Sweden. A specific criteria.
London 30% further 21% of respondents chose other seats The most commonly referred to seat was
Which seats do corporations Geneva 9% as their first choice. Taking into account the London (45 respondents). 29% of
prefer? Paris 7% differences of the current respondent sample, respondents rated London ‘excellent’ and
Tokyo 7%
it appears that the general pattern of 40% rated it ‘very good’, i.e. almost 70% are
Respondents were asked to indicate their Singapore 7%
preferences has remained similar over the past very happy with London as a seat of
preferred seat of arbitration and the reasons New York 6%
four years, with corporations displaying a arbitration. Some of the main reasons parties
for their preference. According to the Other 34%
strong preference for London. In the 2010 used London were its reputation as a neutral
responses,5 London is most preferred (30%),
results, it appears that the wider sample has and impartial jurisdiction, the law governing

5. A small number of respondents listed more than one equally preferred seat and these were taken into account in the final statistics.
2010 International Arbitration Survey: 19
Choices in International Arbitration
3 Choice of the seat of arbitration contd.

the substance of the dispute and established key factors for Geneva are its reputation as a We did not ask respondents to further define What are the perceptions held
contacts with specialist lawyers. Language neutral and impartial jurisdiction and its the terms ‘neutral and impartial’, which was
by corporations of seats they
and cultural familiarity were also mentioned by ‘arbitration-friendliness’. mentioned by a number of respondents in
some respondents. relation to London, Paris, New York and have not used before?
Singapore was the next most commonly
Geneva. From the interviews, it appears that Respondents were invited to rank up to five
Paris was the second most referred to seat referred to seat (15 respondents), 27% rating it
this factor has two main components: seats that they and their organisation have not
(28 respondents). 18% rated it as ‘excellent’ ‘excellent’ and 20% as ‘very good’, i.e. 47%
neutrality and impartiality in relation to the used before, based on their perception of
and 64% said it was ‘very good’, i.e. 82% rated rated Singapore very good or excellent.
parties (i.e. a third country for both/all of them those seats. The options were ‘excellent’,
Paris at least as very good as a place to Respondents identified a broad range of factors
and not otherwise disposed towards them) ‘very good’, ‘good’, ‘adequate’ or ‘poor’.
arbitrate. The main reasons parties came to that led them to select Singapore as a seat.
and a broader concept of the neutrality and However, the uptake of this question was low
Paris were its reputation as a neutral and Although the sample from Asia was slightly
impartiality of the jurisdiction as a whole, and only a small number of respondents
impartial jurisdiction, its ‘arbitration-friendliness’ higher in the present survey, this suggests that
including its national courts. In relation to the shared their perceptions.
and more practical aspects such as hearing Singapore has grown as a regional leader since
latter, a number of interviewees referred to
facilities and transport connections. the 2006 survey. Singapore is a new entry and Moscow was the lowest rated in terms of
Geneva and its tradition of being politically
it appears that the promotion of Singapore as perception – all nine respondents rated it as
New York was mentioned by 23 respondents, neutral which is reflected in respondents’
an arbitral seat with conferences and the active ‘poor’. Mainland China was rated as ‘poor’
17% of which rated it as ‘excellent’ and 39% as perceptions of it as a neutral seat.
involvement of more arbitral institutions (such by nine respondents and ‘adequate’ by
‘very good’, i.e. 56% had high praise for
as ICC and AAA/ICDR) have paid dividends and four respondents.
New York as an arbitral seat. The attractions of
Singapore clearly emerges as the most popular
New York were its reputation as a neutral and Highest rated was Singapore – three
Asian seat. Its movement (and those of regional
impartial jurisdiction, transport connections, respondents rated it as ‘excellent’,
institutions discussed in Section 4) are
language, location of arbitrators and other key four respondents rated it as ‘very good’ and
evidence of the trend towards regionalisation in
participants in the arbitration and established three respondents ‘good’. Following Singapore
arbitration we identified in 2006.
contacts with specialist lawyers. was Hong Kong – two respondents rated it as
Other seats mentioned by respondents ‘excellent’, three ‘very good’, two ‘good’ and
17 respondents mentioned Geneva, 24% rating
included Stockholm, Vienna, Hong Kong, one each ‘adequate’ and ‘poor’.
it as ‘excellent’ and 59% as ‘very good’, i.e.
Zurich, Tokyo and mainland China.
83% rated Geneva at least very good. The two

20
4 Choice of arbitration institution

Corporations look for internationalism and neutrality in their arbitration institutions

and a strong reputation in the marketplace.

Summary What drives decisions about Nevertheless, the closeness of the top ranked negotiation”. It may also help to ensure the
factors strongly suggests that there are a wide effective enforcement of any award (it may
■■ Corporations look for neutrality and arbitration institutions?
range of factors that influence the selection of have an impact on a decision of a court to only
’internationalism’ in their arbitration institutions
We asked questionnaire respondents to rate an institution. Previous experience of the accept, or give preference to, awards made by
and expect institutions to have a strong
the importance of a list of factors in institution is also important (42%), as is the tribunals administered by certain institutions
reputation and widespread recognition.
influencing their corporations’ choices about overall cost of the service (41%) and whether or it may influence a court’s views about the
■■ The ICC is the most preferred and widely selecting an arbitration institution (if one is an institution has a global presence and/or the quality of a particular award).
used arbitration institution. used). Respondents could rate a particular ability to administer arbitrations worldwide
Some interviewees also mentioned the ICC
■■ The ICC, LCIA and AAA/ICDR are the factor as ‘very important’, ‘quite important’, (39%). Also important is expertise in certain
review procedure and said that this type of
institutions used most frequently by somewhat important’, ‘not very important’ or types of cases and free choice of arbitrators
respondents over the past five years. For all mechanism would attract them to an
‘not important at all’. Respondents were also (i.e. no exclusive institutional list) (both at
three institutions, a majority of users rated institution (note also that ‘scrutiny of award by
free to add and rate additional factors. We 38%). Reflecting the findings in Section 1, the
them as either ‘good’ or higher. institution’ scored 33%). A number of
weighted the results to reveal the highest seat exerts some influence at 35%. Least
interviewees also mentioned that they like to
■■ Respondents have the most negative ranked influences on choice of institution (as a important factors are modes of payment, the
see institutions actively involved in managing
perception of CRCICA, DIAC and CIETAC. percentage of the maximum possible similarity of the rules to the UNCITRAL
cases and ensuring parties keep to their
weighted score for each factor). Arbitration Rules and methods of arbitrator
timetable, reflected in the score of 33% for
remuneration.
The most important factor is neutrality/ ‘high level of administration’. This is discussed
’internationalism’ (66%), followed by Interviewees said that it is important for an further in Section 7.
reputation and recognition (56%). The arbitral institution to have a strong profile and enjoy
Cost remains an extremely important issue:
rules of the institution and the law governing broad acceptance amongst arbitration users.
amongst a majority of interviewees there was
the substance of the dispute exert equal This is more significant for parties than mere
a perception that ICC arbitration is too
influence at 46%. The position of the prestige. It increases the likelihood that the
expensive (especially beyond a certain
governing law is perhaps higher than might be counterparty will accept the institution: one
monetary threshold of the amount in dispute)
expected considering the finding in Section 1 respondent referred to “name recognition
and that arbitration institutions in general are
that the influence between the law and the sufficient to avoid a ‘trigger’ that would require
costly. The responses were inconclusive on
institution is not particularly strong. a trade with other parts of a contract

2010 International Arbitration Survey: 21

Choices in International Arbitration
4 Choice of arbitration institution contd.

Chart 16: Top influences on the choice of arbitration institution

whether corporations prefer ad valorem or those countries. Parties are also interested in Neutrality/‘internationalism’ 66%
hourly arbitrator fees as a matter of principle institutions that can deliver expertise in certain
Reputation/recognition 56%
and the consideration of fees is apparently low types of cases, as the ‘specialisation’ of
on the agenda (ad valorem fees scored 18% arbitration increases - a trend also reflected in Arbitral rules 46%

and hourly fees 19%). party preferences for arbitrators with Law governing the substance of the dispute 46%

specialised experience (as discussed in Previous experience of institution 42%

As for newer regional institutions, as also
Section 5).
identified in the 2006 survey, there appears to Overall cost of service 41%

be general support for newer institutions, with Global presence/ability to administer

arbitrations worldwide
39%
regional knowledge and presence scoring Expertise in certain types of case 38%
32%. Nevertheless, interviewees indicated Free choice of arbitrators (i.e. no 38%
that corporations are not prepared to use exclusive institutional list)
Seat chosen for the arbitration 35%
them until they are considered to have
High level of administration (including pro‑activeness,
“proven themselves” or have a “track record”. facilities, quality of staff)
33%

Overall, it is clear that increasingly parties are Scrutiny of award by institution 33%
considering ‘non-traditional’ institutions in Regional presence/knowledge 32%
order to accommodate a counterparty in
Recommendation of external counsel 29%
another region, particularly as the reputations
Corporate policy, standard terms and conditions 28%
of those institutions grow (e.g. the use of
SIAC, HKIAC and possibly CIETAC for US/ Advice/recommendations of others 21%

European/Asian counterparties; the use of Method of remunerating arbitrators (costs per hour) 19%
DIAC, DIFC LCIA Arbitration Centre or CRCICA Choice of institution imposed by other party 19%
for US/European/Asian/Middle Eastern/African
Method of remunerating arbitrators (ad valorem) 18%
counterparties). The move of the LCIA and ICC
Payment to institution required up front 16%
into emerging markets such as India and
Turkey has increased interest in those Similarity of rules to UNCITRAL Rules 16%

institutions amongst companies based in Payment to institution required at end of arbitration 15%

0 20 40 60 80
weighted percentage

22
Which institutions do Chart 17: Preferred arbitration Which institutions have Chart 18: Arbitration institutions used
institutions most frequently over the past five years
corporations prefer? corporations used most
Respondents were asked to indicate their frequently over the past five
preferred institution and the reasons for their years, why were they selected
preference. According to the responses,6 the and how do their users
ICC is the most preferred institution (50%),
followed by the LCIA (14%), AAA/ICDR (8%)
rate them?
and SIAC (5%). First, we asked respondents how many times
their organisation had used some of the most
Again, this pattern broadly reflects the
commonly used arbitration institutions over
preferences expressed in the 2006 survey,
the past five years. Amongst respondents, the
with some evidence of a shift towards SIAC
most commonly used institution over the past
and reduced preference for the SCC and the ICC 50% ICC 56%
five years was the ICC (56%), followed by
Swiss Chambers. LCIA 14% AAA/ICDR 10%
AAA/ICDR and LCIA (both at 10%). It follows
AAA/ICDR 8% LCIA 10%
SIAC 5%
that the perception and the preferences DIS 6%
JCAA 4% reflected in Chart 17 are matched with actual SCC 3%
HKIAC 4% experience and arguably popularity of ICSID 3%
Other 14% arbitration institutions as presented in SIAC 2%
Chart 18. It should be noted, however, that in Other 9%

The main reasons cited by respondents for real number terms, AAA/ICDR has significantly
their preferences mirrored the top reasons for more cases than the LCIA and its numbers are
the selection of institution indicated above. comparable to those of the ICC.
Overall, factors such as neutrality, reputation,
familiarity, international acceptance and global
presence were mentioned by respondents.

6. A small number of respondents listed more than one equally preferred institution and these were taken into account in the final statistics.
2010 International Arbitration Survey: 23
Choices in International Arbitration
4 Choice of arbitration institution contd.

Second, as we did with seats of arbitration, expertise in certain types of cases. The What are the perceptions held
we asked respondents to note the five governing law also had a significant impact on
by corporations of institutions
institutions their organisation has used most the choice of the LCIA. Therefore, it appears
frequently over the past five years (or a that the LCIA may be more closely identified they have not used before?
shorter specified period), indicate the by parties with the law of the country in which Respondents were invited to rank up to five
top three reasons why the institution was it is located than the ICC, which is considered institutions that they and their organisation
selected and rate each of them overall as to be more ‘a-national’. have not used before, based on their
either ‘excellent’, ‘very good’, ‘good’, perception of those institutions. The options
The AAA/ICDR was mentioned by
‘adequate’ or ‘poor’ without reference to any were ‘excellent’, ‘very good’, ‘good’, ‘adequate’
18 respondents, 39% of which rated it as
specific criteria. or ‘poor’. Again, the uptake of this question
‘very good’ and 33% as ‘good’. Respondents
The most commonly referred to institution cited a broad range of reasons for selecting was low and only a small number of
was the ICC (56 respondents). 21% of the AAA/ICDR and no clear themes emerged respondents shared their perceptions.
respondents rated the ICC as ‘excellent’ and from the data. CRCICA was the lowest rated in terms of
32% rated it ‘very good’. Accordingly, 53% of perception – five respondents rated it as
Other institutions mentioned by respondents
users were generally very satisfied with the ‘poor’ and two as ‘adequate’. DIAC and
included the SCC and the JCAA.
quality of the ICC. Some of the main reasons CIETAC were each rated as ‘poor’ by four
parties used the ICC were its reputation, respondents and ‘adequate’ by two
global presence, arbitral rules, high level of respondents. There were no institutions that
administration and free choice of arbitrators. were consistently highly rated in terms of
The LCIA was the second most referred to corporate perception. For most institutions the
institution (22 respondents). 50% rated it as ratings were spread across the five
‘very good’ and 32% said it was ‘good’. categories.
Overall, 82% of users were satisfied with the
LCIA. The main reasons parties opted for the
LCIA were its reputation, neutrality and

24
5 Appointment of arbitrators

Corporations want greater transparency regarding arbitrator availability and

performance. They want the opportunity to assess arbitrators at the end of the dispute.

Summary How many arbitrators do What drives decisions about important factor and an issue of increasing
concern. It is noteworthy that respondents
■■ Open-mindedness and fairness, prior corporations prefer? arbitrators?
prefer a pro-active case management style
experience of arbitration, quality of awards,
73% of respondents have a general preference Once again, we asked respondents to rate the rather than a deferential or reactive style (43%
availability, knowledge of the applicable
as to the number of arbitrators, of which 87% importance of a list of factors in influencing vs. 21%) and an arbitrator that focuses on the
law and reputation are the key factors that
influence corporations’ choices about prefer three arbitrators. Respondents said that their corporations’ choices about arbitrators. commercial disposition rather than the legal
arbitrators. three arbitrators lead to greater neutrality, less There were two categories of questions: the determination of disputes (32% vs. 24%).
risk of a poor decision and a more ‘balanced’ first regarding sole arbitrators or the Chair of Relevant industry experience and languages
■■ 50% of respondents have been award. The desirability of being able to appoint an arbitral tribunal and the second regarding are also seen as important (43% and 44%
disappointed with arbitrator performance.
one of the three arbitrators was another factor co-arbitrators. Respondents could rate a respectively).
■■ Corporations want greater transparency cited by respondents. A panel of three particular factor as ‘very important’, ‘quite
about arbitrator availability, skills and The least important factors were gender,
arbitrators also offers the opportunity to have a important’, ‘somewhat important’, ‘not very
experience and, to some extent, greater religion/faith and nationality. Respondents are
diversity of background and experience that important’ or ‘not important at all’.
autonomy in the selection of arbitrators. also not strongly influenced by the arbitrator’s
may be useful in particular disputes, such as Respondents were also free to add and rate
disposition towards the issues in dispute, their
■■ 75% of respondents want to be able to those with a great deal of technical evidence. additional factors. We weighted the results to
organisation or their external counsel.
assess arbitrators at the end of a dispute. reveal the highest ranked influences on choice
In high stakes disputes, many corporations
Of these, 76% would like to report to the of arbitrator (as a percentage of the maximum Interviewees also emphasised the importance
arbitration institution (if any). 30% would prefer three arbitrators, but this decision can
possible weighted score for each factor). of ‘soft skills’, including the ability to work well
like to be able to submit publicly also depend on the complexity of the case and
with the other members of the panel, the
available reviews. the fee structure (ad valorem or per hour). With respect to the choice of a sole arbitrator
parties and their lawyers and generally adopt a
According to respondents and interviewees, a or Chair, the most important factor is open-
helpful and friendly demeanour. Interviewees
sole arbitrator may be more appropriate for mindedness and fairness (68%), followed by
said that soft skills can have a positive impact
cases with low amounts in dispute or of lesser prior experience of arbitration (62%), quality of
on the efficiency (and hence cost) and the
complexity. One respondent said that a sole awards (58%), knowledge of the applicable
overall experience of conducting an arbitration.
arbitrator may assess the law and facts more law (55%) and reputation (54%). Availability
fully, whereas with three arbitrators the “result also scored highly (51%) and was emphasised
reflects closed door bargaining”. by a number of interviewees as an extremely

2010 International Arbitration Survey: 25

Choices in International Arbitration
5 Appointment of arbitrators contd.

The factors driving the choice of co-arbitrators Chart 19: Top influences on choice of Have corporations ever been Lack of independence, bias and awarding
track those mentioned above: the most co-arbitrators oneself excessive fees were other concerns
disappointed by the
important factor is open-mindedness and expressed by respondents.
fairness (66%), followed by prior experience of Open-mindedness, fairness 66% performance of an arbitrator?
arbitration (58%), quality of awards (56%), Chart 20: Top reasons for corporations’
Prior experience of A very significant 50% of respondents said
arbitration 58% disappointment with arbitrator
availability (55%), reputation (52%) and that they have been disappointed by the performance
knowledge of the applicable law (51%). The Quality of awards 56% performance of an arbitrator. The remaining
preferences for pro-activeness, commerciality, 50% of respondents said they had not been Bad decision/outcome 20%
Availability 55%
languages and relevant industry expertise disappointed.
Overly flexible/failed to
noted above are also mirrored in the results. 52% control process 12%
Reputation We asked respondents to rank the top three
Two additional factors were added to the reasons for their disappointment, which we Arbitrator caused delays 11%
Knowledge of law applicable 51%
question about co-arbitrators: the likelihood to the contract/arbitration weighted to find what factors have been most
Poor reasoning in award 9%
the arbitrator will be able to influence the Likelihood arbitrator will be able 47% problematic for respondents (as a percentage
to influence Chair of tribunal
Chair of the tribunal (which scored 47%) and of the total score allocated by respondents Lack of knowledge or expertise in 9%
Relevant industry the subject matter of the dispute
their willingness to consult with their expertise
42%
across all factors).
appointing party on the selection of a Chair Tardiness in rendering award 8%
Languages 41% The top reason respondents were
(scoring 37%).
Prior experience of the disappointed with an arbitrator was a ‘bad 0 5 10 15 20
39%
arbitration institution decision or outcome’ (20%), followed by weighted percentage

Experience of different legal cultures 37% excessive flexibility or failure to control the
process (12%). 11% said the arbitrator caused
Favourable disposition to the
issues in dispute
37% delays and 9% each said that there was poor
Willingness to consult with appointing
reasoning in the award and the arbitrator
37%
party on selection of Chair lacked knowledge or expertise in the subject
0 10 20 30 40 50 60 70 matter of the dispute. 8% said that the
weighted percentage arbitrator was tardy in rendering the award.

26
Do corporations feel that they recommendation and advice of external Chart 21: Do corporations gather their Chart 22: Do corporations have enough
counsel. This raises a potential issue for the own information about arbitrators for information to make an informed choice
are able to make informed potential appointment in future about the appointment of arbitrators,
‘arbitration system’ as a whole. It may be
decisions about arbitrators? questioned whether the influence of external disputes? with information from external counsel?
We asked corporations whether they routinely counsel over arbitrator selection gives those
gather information about potential arbitrators firms disproportionate influence over the
whom they may appoint to arbitrate potential participants in the process, making them
disputes: 68% do not. A number of virtually ‘gatekeepers’. This may reduce the
interviewees said that this is not cost efficient diversity of the arbitration community and
particularly in light of the relatively small mean that undue importance is placed on
number of arbitrations in which most arbitrator relationships with law firms.
companies become involved. Corporate The response to this issue may come from
counsel normally rely on their external counsel the user side. It was apparent from the
to provide up to date information and a questionnaire responses and the interviews
number of arbitrator CVs to choose from that some corporate counsel would like to Yes 28% Yes 67%
when a dispute arises. take a greater role in arbitrator selection and No 68% No 25%
would like to see greater transparency Don’t know 3% Don’t know 7%
Reflective of this, 68% of respondents said
they do not feel they have enough information regarding arbitrators and have increased ability
to make an informed choice about arbitrators to influence appointment decisions.
independent of input from external counsel, When we asked respondents what should be
but with the input 67% feel able to make an done to increase or improve the information
informed choice. However, 67% still seems available about arbitrators, corporate counsel
rather low considering the importance of proposed a number of ideas for increasing
making a good appointment. transparency about arbitrator skills, experience
It follows that the choice of the arbitrators is a and arbitration track records: for example, a
matter very much dependent on the joint publication by arbitration institutions with

2010 International Arbitration Survey: 27

Choices in International Arbitration
5 Appointment of arbitrators contd.

biographies of arbitrators, a public rating Would corporations like to Chart 23: Would corporations like to be Chart 24: How would corporations like
system for arbitrators, published awards and able to assess arbitrators at the end of to assess arbitrators? (based on multiple
assess arbitrators at the end of a dispute? responses)
published information about the enforcement
of awards (if not protected by confidentiality), a dispute?
information available from institutions about There is very strong support for the review or
arbitrators on request, more specific assessment of arbitrators at the end of a
information about duration and costs, dispute: 75% said they would like to be able
template CVs and an independent manual of to do this.
available arbitrators.
This finding provides further support for the
Availability was a specific issue focused on by view that corporations strongly wish to
respondents and interviewees: many felt that develop a more influential role in the selection
arbitrators should be required to publish of the tribunal. Corporations are increasingly
information about their pending commitments becoming more self-aware of their strong
(without the need to mention specific case position as the main ‘consumers’ of the Yes 75% Report to arbitration institution (if any) 76%
names) so parties could have a better idea of No 13% Publicly available reviews 30%
arbitration product and thus they feel that they
Don’t know 12% Report to arbitrators 27%
the time the arbitrator would have to commit should have more input into this decision.
Don’t know 9%
to the matter, as this is a factor that can lead They also have inventive suggestions as to Other 2%
to delays. how they may contribute.
Respondents were equally clear on how they
would like to assess arbitrators: 76% would A minority of respondents and interviewees
like to submit a report to the arbitration expressed reservations about assessing
institution (if one is used); while 30% said arbitrators. A number of them doubted the
they would like to submit publicly available ability of parties (whether successful or not) to
reviews. Some interviewees thought that the make an objective assessment of arbitrators.
institution would be well placed to receive this However, some of them accepted that
information and could make decisions about reviews could be based on more objective
whether a particular arbitrator should be data such as case management style, duration
retained on their list and could provide and costs that could provide valuable
feedback to the arbitrator. information to potential subsequent users.
28
6 Confidentiality

Confidentiality in international arbitration is important to corporations

but it is not the essential reason for recourse to arbitration.

Summary How important is A number of interviewees, however, noted of arbitration to protect their commercial
the various obligations of corporations to interests.
■■ The responses indicate that confidentiality confidentiality to corporations?
report to shareholders, make disclosures in
is important to users of arbitration, but it Chart 26: Do corporations consider that
62% of respondents said confidentiality is their annual accounts and reports and
is not the essential reason for recourse arbitration is confidential even where
‘very important’ to them in international otherwise announce significant information to
to arbitration. there is no specific clause to that effect
arbitration. the market (in the case of publicly listed
■■ 50% of respondents erroneously believe in the arbitration rules adopted or the
companies) that may cut across confidentiality arbitration agreement?
that arbitration is confidential even where Chart 25: Importance of confidentiality
in its strictest sense. Corporate counsel
there is no specific clause to that effect in in international arbitration
accept that this can make confidentiality
the arbitration rules adopted or the
arbitration agreement and 12% did not ‘porous’, but a number said that often
know whether arbitration is confidential in commercial arbitration matters are not of great
these circumstances. interest to outsiders and do not involve
sensitive commercial information. Therefore,
in many cases confidentiality is not an
extremely serious concern.
Respondents were also asked whether they
consider that arbitration is confidential even
where there is no specific clause to that effect
in the arbitration rules adopted or the Yes 50%
Very important 62% No 30%
arbitration agreement: 50% said they consider
Quite important 24% Don’t know 12%
it is confidential and 30% do not. While
Somewhat important 12% Other 7%
Not important at all 1%
international arbitration is private, it is not
Depends on circumstances 2% necessarily confidential and may not be
considered so by the counterparty.
Corporations may wish to consider including
specific clauses relating to the confidentiality

2010 International Arbitration Survey: 29

Choices in International Arbitration
6 Confidentiality contd.

Are the considerations relating What is the impact of Chart 27: Would corporations still use Chart 28: Is lack of confidentiality in
arbitration if it did not offer the potential state court litigation a principal reason
to confidentiality different confidentiality on the decision for confidentiality? for choosing arbitration?
when one party is a state? to have recourse to arbitration?
We asked respondents whether the Anecdotally, confidentiality has been
considerations regarding confidentiality are frequently touted as one of the leading
different when dealing with a state party: 37% attractions, if not the leading attraction, of
said yes (although a further 37% said they did arbitration. To test this assumption, we asked
not know). We received a broad range of corporations whether they would still use
responses: some respondents believe that arbitration if it did not offer the potential for
states may seek greater confidentiality (on the confidentiality. 38% said they would still use it
basis of state security and similar grounds), and 35% said they would not. This suggests
whereas others think that states may seek to that confidentiality is highly important but not
breach confidentiality due to their disclosure the only reason parties use arbitration. Yes 38% Yes 26%
obligations (e.g. freedom of information). Some No 35% No 65%
respondents also noted that there is usually Don’t know 26% Don’t know 9%
greater media interest in matters involving
states and greater risk of leaks. Respondents cited a number of the reasons The responses reflect the broad range of
they would still use arbitration: the ability to reasons parties decide to use arbitration.
Others consider that when states are engaging
appoint arbitrators, the absence of appeals, In most circumstances, corporations will
in commercial contracts they should be subject
procedural flexibility, enforceability of awards consider on a case by case basis which form
to the same obligations of confidentiality as
and its value in situations where the national of dispute resolution is appropriate in the
private parties.
court alternatives lack independence, particular circumstances.
impartiality and predictability. In certain
circumstances arbitration is also perceived to
be faster than state court litigation.

30
What should be kept It was generally noted in interviews that 61% of respondents consider that the
arbitration is increasingly ‘porous’ as there is a arbitration institution, the lawyers involved, the
confidential?
greater public interest in arbitration and “leaks national courts, the parties and the tribunal
Respondents identified the key aspects of the to the press” seem increasingly common should all bear the responsibility of keeping
arbitration that they think should be kept (particularly in cases involving a state party, as the arbitration confidential. Approximately
confidential: top choices included the amount noted above, or high profile corporations). 40% of respondents each believe that the
in dispute (76%), the pleadings and primary responsibility should be borne by the
A number of interviewees said that they are
documents submitted in the case (72%) and arbitration institution or the lawyers involved.
pragmatic about what is released. Many said
the full award (69%).
that it would not be particularly problematic if
Chart 29: Top aspects of the arbitration information that is not of a commercially
that should be kept confidential (based sensitive nature (e.g. intellectual property or
on multiple responses) trade secrets) is released.
Some interviewees said that they would like
The amount in dispute 76%
to have access to more awards, in order to
The pleadings and
documents submitted 72% understand the arbitral process better and to
in the case
look at the previous decisions of potential
The full award 69%
arbitrators, but they acknowledged that this
The details in the award may be inconsistent with their desire for
that allow identification 58%
of the parties confidentiality of their own awards.
The very existence 54%
of the dispute

The legal question to 54%

be decided

0 10 20 30 40 50 60 70 80
percentage of respondents

2010 International Arbitration Survey: 31

Choices in International Arbitration
7 Time and delay

The main causes of delay are within the control of the parties, although corporations
feel that arbitrators and arbitration institutions are best placed to reduce delay.

Summary What aspects of the arbitration Chart 30: Aspects of the arbitration that Control of proceedings was an issue raised by
contribute most to length of proceedings a number of interviewees and it was felt by
■■ Disclosure of documents, written contribute most to delay?
many to be key to questions of cost and delay.
submissions, constitution of the tribunal and We asked respondents to rank the top three Disclosure of 24%
documents A number of interviewees feel that arbitration
hearings are the main stages of the arbitral
stages of the arbitration that contribute to must become more streamlined and
process that contribute to delay. Written submissions 18%
delay, which we weighted to find what factors disciplined to provide an entirely effective form
■■ According to respondents, parties have the greatest impact on the length of Constitution of tribunal 17% of dispute resolution. It was pervasive
contribute most to the length of proceedings (as a percentage of the total throughout the questionnaire results and the
proceedings, but it is the tribunal and the score allocated by respondents across Hearings/proceedings 15%
interviews that parties prefer pro-active
arbitration institution that should exert
all factors). arbitrators who take control of proceedings.
control over them to keep the arbitral Rendering of the award 14%
process moving quickly. According to respondents, disclosure of This is seen as an effective mechanism to limit
documents is the longest stage (24%), Enforcement 10% cost and delay and reduce the risks of later
followed by written submissions (18%), the challenge. Parties also prefer pro-active
Written questions 2%
constitution of the tribunal (17%) and hearings from arbitrators arbitration institutions that firmly adhere to
(15%). It is noteworthy that these factors are 0 10 20 30 40 50 60 deadlines and communicate effectively with
very much within the control of the parties. On weighted percentage the parties.
the other hand, in the interviews, particularly in
North America, it was noted that corporate Respondents believe that the parties contribute
users are not happy with the time it takes most to the length of proceedings (weighted
between the final hearing and the rendering of score of 31%), followed by the tribunal (23%)
the award. Most interviewees said that they and external counsel (21%). However, 30%
would consider it appropriate for an award to consider that the tribunal is in the best position
be delivered around three to six months after to render arbitration expeditious (by keeping
the close of hearings, whereas it is common themselves and the parties to the timetable)
for awards to be rendered more than and 29% feel that the arbitration institution is in
12 months after the close of hearings (with the best position to do this. 19% believe that
some ‘horror stories’ of awards not being the parties are in the best position to render
rendered for up to three years). arbitration expeditious.
32
Appendices
Methodology

The research for this study was conducted The research was conducted in two phases: the prior to, or during, the interview. The qualitative Chart 31: Position of respondents
from January to August 2010 by first quantitative and the second qualititative. information gathered during the interviews
Ms. Penny Martin BA, LLB (Hons), LLM (Dist), was used to supplement the quantitative
White & Case Research Fellow in International Phase 1: an online questionnaire comprising questionnaire data, contextualise the findings
Arbitration, Barrister and Solicitor of the 78 questions completed by 136 respondents and cast further light on particular issues raised
Supreme Court of Victoria and the Federal and from February to August 2010. Respondents by the survey. Information taken solely from
High Courts of Australia, together with were general counsel, heads of legal this group is referred to as from ‘interviewees’
Professor Dr. Loukas Mistelis, LLB (Hons, departments, specialist legal counsel and or ‘interviews’ throughout this report.
Athens), MLE (Magna cum Laude), Dr. Iuris regional legal counsel. The questionnaire
The following charts illustrate the composition
(summa cum laude) (Hanover), MCIArb, responses were analysed to produce the
of respondents and, where applicable,
Advocate, Clive Schmitthoff Professor of statistical data presented in this report.
interviewees by: position, company turnover,
Transnational Commercial Law and Arbitration; Information taken solely from this group is
industry sector and geographic location.
Director, School of International Arbitration, referred to as from ‘questionnaire respondents’ General Counsel 31%
The final chart indicates the proportion of
Centre for Commercial Law Studies, or ‘respondents’ throughout this report. Counsel 19%
respondents/interviewees based in
Queen Mary, University of London. They were Head of Legal Department 16%
emerging markets.
assisted by Dr. Stavros Brekoulakis, LLB Phase 2: 67 face-to-face or telephone Head of Dispute Resolution 10%
interviews with corporate counsel from May to For the 2010 survey we sought to expand the Deputy General Counsel 3%
(Athens), LLM (London), Senior Lecturer in
Other 21%
International Dispute Resolution, School of August 2010. Interviews were based on a set range of corporations that had participated in
International Arbitration, Centre for of guideline questions and ranged from previous years and also expand the survey into
Commercial Law Studies, Queen Mary, 15 minutes for phone interviews to 90 minutes new geographical areas and emerging
University of London. for interviews in person. Interviews were markets. We identified questionnaire and
conducted in London, Paris, Mumbai, Florence, interview invitees from the lists previously used
An external focus group comprised of senior
Milan, Istanbul, Tokyo, Beijing, Houston, for the 2006 and 2008 surveys (as updated),
corporate counsel, external counsel and
New York, Washington, DC, Rio de Janeiro, supplementing them with further contacts
academics provided comments on the
Sao Paulo, Dubai, Frankfurt, Moscow, Warsaw obtained through internet research based on a
draft questionnaire.
and other locations. A significant number of list drawn from the Forbes Global 2000 and
interviewees completed the questionnaire other regional company rankings.

34
Chart 32: Annual turnover of respondent Chart 33: Respondents by industry sector Chart 34: Geographic location of Chart 35: Respondents/interviewees
corporations respondents/interviewees based in emerging markets7
Automobile and
2%
transportation

Chemicals 3%

Energy 8%

Engineering and 17%

construction
Financial services 8%
and banking
Industrial 8%
manufacturing

Infrastructure 2%

Insurance 6%
More than US$5 billion 53% Asia 35% Emerging markets 32%
Media and 2%
Between US$500 million and US$5 billion 29% entertainment Western Europe 31% Non-emerging markets 68%
Between US$100 million and US$500 million 9% North America 12%
Oil and gas 13%
Between US$10 million and US$100 million 5% Africa and Middle East 9%
Between US$1 million and US$10 million 2% Pharmaceuticals 2% South and Central America 6%
Less than US$1 million 1% Retail and Eastern Europe 6%
2%
consumer

Telecommunications 3%

Other 25%

0 5 10 15 20 25
percentage of respondents

7. The emerging markets in the sample were Argentina, Brazil, Chile, Czech Republic, Egypt, Hungary, India, Indonesia, Mexico, People’s Republic of China, Poland, Romania, Russian Federation,
South Africa, Turkey and United Arab Emirates. These countries appear in at least one of the lists of emerging markets published by the FTSE Group, MSCI Barra and Dow Jones.
2010 International Arbitration Survey: 35
Choices in International Arbitration
Methodology contd.

We sought as much as possible to have a

balanced invitee sample across varying
regions, industries and company sizes. We
sent out questionnaire and/or interview
requests by mail and where possible by email.
Follow up emails were sent seeking further
responses. Information about the
questionnaire was distributed through a
number of channels including, corporate
counsel member organisations, several trade
journals (such as Global Arbitration Review)
and websites, such as the Chartered Institute
of Arbitrators (CIArb).
To encourage further responses from harder to
reach regions (such as Africa, South America,
Middle East, Eastern Europe and Central Asia),
we conducted intensive multiple follow up
telephone calls in mid-2010. We also carried
out intensive follow up of companies in North
America to seek further responses. Finally, we
sought the names of appropriate contacts
from questionnaire respondents and
interviewees and approached those contacts.

36
Glossary

AAA/ICDR – American Arbitration Association/ HKIAC – Hong Kong International Arbitration SIAC – Singapore International Arbitration
International Centre for Dispute Resolution Centre Centre
CIETAC – China International Economic and ICC – International Chamber of Commerce, SCC – The Arbitration Institute of the
Trade Arbitration Commission International Court of Arbitration Stockholm Chamber of Commerce
CRCICA – Cairo Regional Centre for ICSID – International Centre for Settlement of Swiss Chambers – Swiss Chambers’ Court of
International Commercial Arbitration Investment Disputes Arbitration and Mediation
DIAC – Dubai International Arbitration Centre JCAA – Japan Commercial Arbitration
Association
DIFC LCIA Arbitration Centre – Dubai
International Financial Centre/London Court of LCIA – London Court of International
International Arbitration Arbitration Centre Arbitration
DIS – The German Institution for Arbitration New York Convention 1958 – Convention on
(Deutsche Institution für Schiedsgerichtsbarkeit) the Recognition and Enforcement of Arbitral
Awards, New York, 1958

2010 International Arbitration Survey: 37

Choices in International Arbitration
School of International Arbitration, Queen Mary, University of London

The School of International Arbitration (SIA) is In its 25 year existence the School has had Further, the School has close links with major
a centre of excellence in research and over 3,000 students from over 80 countries all arbitration institutions and international
teaching of international arbitration and is part over the world. Many of our graduates are organisations working in the area of
of the Centre for Commercial Law Studies now successfully practising in the private or arbitration. It also offers consulting services
(CCLS) at Queen Mary, University of London. public sector, as arbitrators, lawyers, in-house and advice to governments and non-
counsel, academics, or work for international governmental agencies which wish to develop
The School was established in 1985 to
organisations, such as the UNCITRAL or the a non-judicial settlement of dispute
develop international arbitration as an
World Bank. mechanism as well as training for lawyers in
independent subject and specialist area and to
private practice, in-house lawyers, judges,
promote advanced teaching and research in In addition to its regular full-time and part-time
arbitrators and mediators.
the law and practice affecting international academic staff, the School of International
arbitration. Today the School is widely Arbitration involves high-profile practitioners in Further information can be obtained on the
acknowledged as the leading teaching and its teaching programmes. This adds crucial School’s website at
research centre on international arbitration in practical experience to academic knowledge http://www.arbitrationonline.org/.
the world. The School offers a range of and analysis.
School of International Arbitration,
international arbitration courses including:
The impact of the School, both in terms of Centre for Commercial Law Studies,
specialist LLM modules, postgraduate
research and teaching, has been constantly Queen Mary, University of London,
diplomas, professional courses and training
increasing over the years and it is now 67-69 Lincoln’s Inn Fields,
and one of the largest specialist PhD
generally considered a leading contributor to London WC2A 3JB,
programmes in the world.
the science of international arbitration United Kingdom
and litigation. Tel: +44 (0)20 7882 8075
Fax: +44 (0)20 7882 8101

38
White & Case International Arbitration Group

The International Arbitration group at We have significant arbitration practices in “‘A superb firm with an excellent practice and
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construction sectors.”
Chambers Global

2010 International Arbitration Survey: 39

Choices in International Arbitration
White & Case International Arbitration Partners

Americas EMEA
Raoul G. Cantero Carolyn B. Lamm Ank A. Santens Ellis Baker Bengt-Äke Johnsson
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[email protected] [email protected] [email protected] [email protected] [email protected]
Peter J. Carney Darryl S. Lew Abby Cohen Smutny Phillip Capper Milán Kohlrusz
Washington DC Washington DC Washington DC London Budapest
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Jonathan C. Hamilton Juan Pablo Rico David Goldberg Patricia Nacimiento
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40
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Rolf S. Olofsson Christophe von Krause David Case
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2010 International Arbitration Survey: 41

Choices in International Arbitration
Acknowledgements

The School of International Arbitration would Dr. Stefan Kröll, Gerry Lagerberg (PwC LLP), Practical Law Company, Society of
like to thank the partners and staff of Michael McIlwrath (GE), Keijiro Miyabe (IHI), Construction Law (UK), The In-House Lawyers
White & Case LLP for their support and input, Steve Smith (Lockheed Martin Space Group (Scotland) and Transnational Dispute
in particular, Phillip Capper, Paul Friedland, Systems) and Dr. Wolf von Kumberg Management. We would also like to
Patricia Nacimiento and a number of other (Northrop Grumman). acknowledge the support of the Beijing
partners. Associate Clare Connellan provided Arbitration Commission during our research
We are also grateful for the assistance of a
invaluable assistance as the key contact at the interview visit to China.
range of organisations who distributed the
firm and we also appreciated the help of
questionnaire to their members or otherwise Most importantly, we would like to thank the
associate Mohamed Mahayni. We benefited
promoted the questionnaire, in particular: corporate counsel who generously gave their
greatly from the wonderful support of
American Society of International Law, time to answer the questionnaire and/or
Julie McCoy and Joanne Robinson and the
Asian Counsel Magazine, Australian Corporate provide interviews.
White & Case London Brand & Design team.
Lawyers Association, Beijing In-house Counsel
We would also like to thank colleagues at the Network, Brazil Corporate Counsels, CEPANI
School of International Arbitration and at (Belgian Centre for Mediation and Arbitration),
Queen Mary, University of London for Chartered Institute of Arbitrators (CIArb),
assistance in questionnaire design and Committee on Corporate Counsel – American
feedback on methodology. Bar Association Section of Litigation,
Corporate Counsel International Arbitration
We would also like to thank the private
Group (CCIAG), Corporate Lawyers
practice, corporate and academic lawyers who
Association of New Zealand (CLANZ),
participated in the focus group and provided
Global Arbitration Review, ICC Belgium,
comments on the questionnaire. These
Inter-Pacific Bar Association, Japan In-house
included Andrew Clarke (CCIAG),
Counsel Network (JICN), Latin American
Joanne Cross (BP), Domenico Di Pietro
Corporate Counsel Association, Law Asia,
(Chiomenti Studio Legale), Leila El Shentanawi
Norwegian Association of Lawyers,
(CRCICA), Jennifer Kirby (Kirby Arbitration),

42
Worldwide. For Our Clients. www.whitecase.com

http://arbitrationchoices.whitecase.com

In this publication, White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated
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