ITitle intial caps only goes here
2021 International
Arbitration Survey:
Adapting arbitration
to a changing world
Contents
Executive summary
Page 2
International arbitration: Current choices
and future adaptations
Page 5
Diversity on arbitral tribunals:
What’s the prognosis?
Page 15
Use of technology: The virtual reality
Page 20
Sustainability and information security:
Opportunities and challenges
Page 28
Appendices
Methodology
Page 34
School of International Arbitration,
Queen Mary University of London
Page 37
White & Case International Arbitration Practice
Page 38
Truly global
Page 39
Acknowledgements
Page 40
Attorney Advertising
T
he field of international arbitration is dynamic by nature. Its hallmarks of flexibility and
party autonomy allow it to develop and adapt in response to the needs of its users.
Recent times have seen an increased focus on drivers of change such as diversity,
technology, environmental considerations and information security. The COVID-19 pandemic has
also presented challenges to the way in which the international arbitration community interacts.
The 2021 International Arbitration Survey, titled ‘Adapting arbitration to a changing world,’ explores
how international arbitration has adapted to these changing demands and circumstances.The survey
investigates trends in user preferences and perceptions, and identifies opportunities for international
arbitration to adapt more and better.This edition saw the widest-ever pool of respondents, with 1218
questionnaire responses received and 198 interviews conducted. Views were sought from a diverse
pool of participants in the international arbitration sphere, including in-house counsel from both public
and private sectors, arbitrators, private practitioners, representatives of arbitral institutions and trade
associations, academics, experts and third-party funders.
White & Case is proud once again to have partnered with the School of International Arbitration.
The School has produced a study which provides valuable insights into how international arbitration
has adapted, and what more needs to be done by and for its diverse stakeholders. I am confident
that this survey will be welcomed by the international arbitration community.
We thank Norah Gallagher and Dr Maria Fanou (White & Case Postdoctoral Research Fellow in
International Arbitration) for their exceptional work, and all those who generously contributed their
time and knowledge to this study.
I
t is with a sense of relief that I present the 2021 International Arbitration Survey on
‘Adapting arbitration to a changing world’. In fact, that is exactly what happened just after we
started work on the draft questionnaire in early 2020—the world changed due to COVID-19.
We could not have known at that time quite how big an impact the pandemic would have globally.
In such uncertain times, we had to postpone the launch of the survey for several months. We had
no way to assess how long we should wait to start and how it might impact on the survey results.
The strength of the survey is entirely based on the level of participation by the arbitration
community. It was an anxious time to see whether COVID-19 would adversely impact the numbers.
I was truly grateful for the support of the international arbitration community as the largest number
of people ever completed the survey—more than 1,200. Dr Fanou also interviewed almost 200
candidates from 29 countries to provide nuance and context for some of the findings.We thank all
of the respondents for making this survey so comprehensive—a true success despite the pandemic.
This is the 12th empirical survey conducted by the School of International Arbitration at
Queen Mary University of London and the fifth in partnership withWhite & Case LLP. The results reflect
an interesting snapshot of change in arbitral practice during a time of global upheaval.The arbitration
community had to adapt quickly, and some of these changes will remain after the pandemic recedes.
Virtual hearings and increased reliance on technology are clear examples of changes that will persist.
It has been a challenging yet rewarding process, but we are pleased with the interesting results.This
survey may also prompt further discussion on future changes to arbitral practice and procedural rules.
2021 International Arbitration
Survey: Adapting arbitration
to a changing world
Abby Cohen Smutny
Global Head of International
Arbitration Practice Group,
White & Case LLP
Norah Gallagher
Deputy Director, School of
International Arbitration
Centre for Commercial
Law Studies, Queen Mary
University of London
2 White & Case
International Arbitration:
Current choices and
future adaptations
	… International arbitration is the preferred
method of resolving cross-border disputes
for 90% of respondents, either on a
stand-alone basis (31%) or in conjunction
with ADR (59%).
	… The five most preferred seats for
arbitration are London, Singapore,
Hong Kong, Paris and Geneva.
	… ‘Greater support for arbitration by
local courts and judiciary’, ‘increased
neutrality and impartiality of the local
legal system’, and ‘better track record in
enforcing agreements to arbitrate and
arbitral awards’ are the key adaptations
that would make other arbitral seats
more attractive.
	… The UNCITRAL Arbitration Rules
are the most popular regime for
ad hoc arbitration.
	… The five most preferred arbitral
institutions are the ICC, SIAC, HKIAC,
LCIA and CIETAC.
	… Respondents chose ‘administrative/
logistical support for virtual hearings’ as
their top choice adaptation that would
make other sets of arbitration rules
or arbitral institutions more attractive,
followed by ‘commitment to a more
diverse pool of arbitrators’.
	… Arbitration users would be most willing
to do without ‘unlimited length of written
submissions’, ‘oral hearings on procedural
issues’ and ‘document production’ if this
would make their arbitrations cheaper
or faster.
Diversity on arbitral
tribunals: What’s
the prognosis?
	… More than half of respondents agree
that progress has been made in terms
of gender diversity on arbitral tribunals
over the past three years. However,
less than a third of respondents believe
there has been progress in respect of
geographic, age, cultural and, particularly,
ethnic diversity.
	… Respondents are divided as to
whether there is any connection
between diversity on a tribunal and
their perception of the arbitrators’
independence and impartiality. Just over
half of the respondents (56%) stated
that diversity across an arbitral tribunal
has a positive effect on their perception
of the arbitrators’ independence and
impartiality, but more than one-third
(37%) took a neutral view. Others
consider the enquiry redundant, on the
basis that the call for more diversity does
not require further justification.
	… 59% of respondents emphasise the
role of appointing authorities and arbitral
institutions in promoting diversity,
including through the adoption of express
policies of suggesting and appointing
diverse candidates as arbitrators.
However, the significance of the role of
counsel is highlighted by about half of
respondents, who included ‘commitment
by counsel to suggesting diverse lists
of arbitrators to clients’ amongst their
answers. In-house counsel also bear the
onus of encouraging diversity through
their choice of arbitrators.
	… Many respondents feel that opportunities
to increase the visibility of diverse
candidates should be encouraged
through initiatives such as ‘education and
promotion of arbitration in jurisdictions
with less developed international
arbitration networks’ (38%), ‘more
mentorship programmes for less
experienced arbitration practitioners’
(36%) and ‘speaking opportunities at
conferences for less experienced and
more diverse members of the arbitration
community’ (25%). Building visibility
is particularly important in light of the
general perception that users prefer
arbitrator candidates about whom they
have some knowledge or with whom
they have previous experience.
	… The general consensus amongst
respondents is that caution should be
exercised when exploring whether
adaptations in arbitral practice
experienced during the COVID-19
pandemic may have an impact on
promotion of diversity objectives, as it can
go both ways. Virtual events, meetings
and hearings may facilitate participation
by more diverse contributors, but this
may be hindered by unequal access to
technology and the challenges of building
relationships remotely.
Executive summary
32021 International Arbitration Survey
Use of technology:
The virtual reality
	… Technology continues to be widely used
in international arbitration, particularly
‘videoconferencing’ and ‘hearing room
technologies’, but the adoption of AI
still lags behind other forms of IT.
	… The increase in the use of virtual hearing
rooms appears to be the result of how
the practice of arbitration has adapted
in response to the COVID-19 pandemic,
as users have been forced to explore
alternatives to in-person hearings.
	… If a hearing could no longer be held in
person, 79% of respondents would choose
to ‘proceed at the scheduled time as a
virtual hearing’. Only 16% would ‘postpone
the hearing until it could be held in person’,
while 4% would proceed with a documentsonly
award.
	… Recent (and, in many cases, new)
experience of virtual hearings has offered
an opportunity to gauge users’ perception
of this procedural adaptation.The ‘potential
for greater availability of dates for hearings’
is seen as the greatest benefit of virtual
hearings, followed closely by ‘greater
efficiency through use of technology’ and
‘greater procedural and logistical flexibility’.
Aspects that gave respondents most
cause for concern included the ‘difficulty of
accommodating multiple or disparate time
zones’, the impression that it is ‘harder for
counsel teams and clients to confer during
hearing sessions’ and concerns that it
might be ‘more difficult to control witnesses
and assess their credibility’.The fallibility of
technology and the phenomenon of ‘screen
fatigue’ were also cited.
	… Going forward, respondents would prefer
a ‘mix of in-person and virtual’ formats for
almost all types of interactions, including
meetings and conferences.Wholly
virtual formats are narrowly preferred for
procedural hearings, but respondents would
keep the option of in-person hearings open
for substantive hearings, rather than purely
remote participation.
Sustainability and
information security:
Opportunities
and challenges
	… Respondents show a willingness
to adopt paperless practices, such
as production of documents in
electronic rather than hard-copy form;
providing submissions, evidence and
correspondence in electronic format;
and the use of electronic hearing
bundles. Many respondents would also
welcome more ‘green’ guidance, both
from tribunals and in the form of soft law.
	… While the environmental benefits of
remote participation rather than in-person
participation are recognised, this this
is not the primary motivation behind
the decision as to whether interactions
should be remote or in-person.
	… There appears to be increasing
awareness of the need to embrace
‘greener’ practices. However, the overall
message from respondents is that the
reduction of environmental impact is
a welcome side-effect of their choices
throughout the arbitral process, rather
than a priority in and of itself.
	… Even though users generally acknowledge
data protection issues and regulations
may have an impact on the conduct
of arbitrations, the extent and full
implications of that impact are not
understood by all. 34% of respondents
predicted that data protection issues
and regulations have ‘limited impact at
present but [this is] likely to increase’.
	… Only around a quarter of respondents
said they have ‘frequently’ or ‘always’
seen cybersecurity measures being put
in place in their international arbitrations.
The majority (57%) encountered such
measures in less than half of their cases.
	… The IT security measures and tools most
used or recommended by respondents
include ‘cloud-based platforms for
sharing electronic or electronically
submitted data’; ‘limiting access to
prescribed individuals’; ‘data encryption’;
and ‘access controls, e.g., multi-factor
authentication’. Almost half of the
respondents recommended the use of
‘secure/professional email addresses for
arbitrators rather than web-based email
providers (i.e., no Gmail, Yahoo, Hotmail,
etc.)’.
	… Respondents appreciate being able
to rely on specialist IT support and
systems to ensure robust cybersecurity
protections are in place.
	… Although there are encouraging signs
that users are mindful of cybersecurity
issues and the need to address them,
there is nonetheless ample scope for
more engagement on this front.
52021 International Arbitration Survey
International arbitration together
with ADR: The winning formula
We asked respondents what their
preferred method of resolving
cross-border disputes would be
post COVID-19. Respondents were
asked to choose one of five options:
‘international arbitration together with
ADR’, ‘cross-border litigation together
with ADR’, ‘international arbitration’ as
a standalone option, ‘ADR only’, and
‘cross-border litigation’ as a standalone
option.We clarified that ADR would
include, for example, adjudication,
dispute boards, expert determination,
mediation and negotiation, but exclude
litigation and arbitration.
In previous surveys by Queen
Mary University of London,
arbitration, as either a standalone
option or in conjunction with ADR,
was consistently selected as
the preferred dispute resolution
mechanism for cross-border
disputes.1
This preference was
confirmed again in this survey.
In particular, an overwhelming
majority of the respondent group
(90%) showed a clear preference
for arbitration as their preferred
method of resolving cross-border
disputes, either as a standalone
method (31%) or in conjunction with
ADR (59%). Only an aggregate of
4% is equally split between ‘ADR
only’ and ‘cross-border litigation’
as standalone options, while 6%
indicated a preference for ‘crossborder
litigation together with ADR’.
This year’s findings once again
reveal a noticeable increase over
recent years in the overall popularity
of arbitration used in conjunction
with ADR: 59% of respondents
expressed their preference for this
combination, as opposed to 49% in
2018 and only 34% in 2015.2
These results reflect an ongoing
trend, as confirmed in interviews.
Although the question expressly
referred to the post-COVID-19
landscape, interviewees explained
that their answers were not
influenced by the pandemic. The
factors that influenced their choices
remained largely the same. This is
why they expected to continue to
use the same dispute resolution
options as they were using
pre-pandemic. As an immediate
International arbitration:
Current choices and
future adaptations
Summary
	… International arbitration is the preferred
method of resolving cross-border disputes
for 90% of respondents, either on a standalone
basis (31%) or in conjunction with
ADR (59%).
	… The five most preferred seats for arbitration
are London, Singapore, Hong Kong, Paris
and Geneva.
	… ‘Greater support for arbitration by local
courts and judiciary’, ‘increased neutrality
and impartiality of the local legal system’ and
‘better track record in enforcing agreements
to arbitrate and arbitral awards’ are the key
adaptations that would make other arbitral
seats more attractive.
	… The UNCITRAL Arbitration Rules are the
most popular regime for ad hoc arbitration.
	… The five most preferred arbitral institutions
are the ICC, SIAC, HKIAC, LCIA and CIETAC.
	… Respondents chose ‘administrative/logistical
support for virtual hearings’ as their top
choice adaptation that would make other
sets of arbitration rules or arbitral institutions
more attractive, followed by ‘commitment to
a more diverse pool of arbitrators’.
	… Arbitration users would be most willing
to do without ‘unlimited length of written
submissions’, ‘oral hearings on procedural
issues’ and ‘document production’, if this
would make their arbitrations cheaper
or faster.
59%
2%
31%
2%
6%
Chart 1: Post-COVID-19, what would be your preferred
method of resolving cross-border disputes?
International arbitration
together with ADR
International arbitration
ADR only
Cross-border litigation
Cross-border litigation
together with ADR
6 White & Case
consequence of the pandemic,
respondents referred to an initial
feeling of being ‘numb’—effectively,
a ‘procedural paralysis’. Only a few
private practitioners observed that
their clients were now exploring
settlements more willingly than
previously.
Generally, interviewees noted
that recourse to ADR was in the
hope that a swifter and more costefficient
resolution could be found
before resorting to arbitration. In
many cases, there is a contractual
mandate to use ADR, typically
through multi-tiered escalation
clauses. Even when there is no
contractual requirement to do so,
interviewees confirmed a willingness
to explore suitable alternatives to
resolve disputes. This explains opting
for ‘arbitration together with ADR’
for the purposes of this question as
opposed to arbitration as a standalone
option.
In addition, in certain types of
disputes, there are established
practices of recourse to other means
of dispute resolution; for instance,
interviewees with experience in
disputes in the construction industry
reported positively on the use of
disputes boards in that sector. They
explained that dispute adjudication
and dispute review boards are
commonly used in construction
projects. In some cases, the contract
provides for dispute boards in the
form of standing bodies assigned
to monitor the projects. Several
interviewees noted that, in many
instances, they have found dispute
boards to be a good, efficient and
often cheaper dispute resolution
option that helped their clients
avoid lengthy and time-consuming
arbitrations. Standing dispute
boards were also reported to be a
useful means of dispute prevention.
However, the main concern noted
was that the decisions of dispute
boards are not generally enforceable.
This means that if a decision is
not mutually accepted, the parties
‘will be back to square one’, facing
potentially duplicative and costly
arbitration proceedings for the
same dispute.
Which seats are most preferred?
Choice of arbitral seat is a key issue
for users of international arbitration.
We sought to identify the seats that
are most preferred by respondents
or their organisations, allowing
them to list up to five seats in freetext
boxes. Reflecting the global
nature of international arbitration,
respondents cited more than 90
different seats from a range of
jurisdictions around the world.
Notwithstanding the number of
choices available to international
arbitration users, the top-five
preferred seats should not come
as a surprise when looking at the
results from our previous surveys.3
There has, however, been interesting
movement within the top-five
rankings.While London once again
stands at the top of the charts, for
the first time it shares this position
with Singapore—each was included
in the top-five picks of 54% of the
respondents.The rise in popularity of
key Asian arbitral hubs demonstrated
by Singapore’s success is mirrored by
Hong Kong, which takes third place
(50%). Paris comes in fourth (chosen
by 35% of respondents) followed
by Geneva in fifth place (13%
of respondents).4
Reviewing the findings of our
2015, 2018 and current surveys,
it seems that these cities have
cemented a dominant position as
seats of choice. This is perhaps to
be expected given that each of them
has a longstanding and recognised
reputation as a ‘safe seat’ for
international arbitration.5
Indeed,
based on the previous surveys,
it was expected that they would
continue to be popular. This has been
borne out in these latest findings.
London’s continued presence at
the top of the table suggests that,
as was predicted by the majority
of the respondents in our 2018
survey,6
its popularity as a seat has
not been significantly impacted (at
least so far) by the UK’s withdrawal
from the European Union. London
retains its reputation amongst users
as a reliable seat of choice.
What is more striking, however,
is the significant percentage gains
made by Singapore (54%) and
Hong Kong (50%), as compared to
our previous surveys. Singapore
was the third most frequently
chosen seat in 2018, selected
by 39% of respondents, and it
came in fourth in 2015, chosen by
19% of respondents. Hong Kong
took fourth place in 2018, chosen
Chart 2: What are your or your organisation’s most preferred seats?
Percentage of respondents who included the seat in their answer
ParisSingapore Hong Kong Geneva NewYork Stockholm DubaiBeijing ShanghaiLondon
54%54%
50%
35%
13%
8%
6% 5%
12% 12%
54%
London and, for
the first time,
Singapore,
were the most
preferred seats
with scores
of 54%
72021 International Arbitration Survey
by 28% of respondents, and it
was third in 2015, as a seat of
choice for 22% of respondents.
Interviewees confirmed that these
seats are considered safe, obvious
choices of established quality.
Interestingly, some interviewees
mentioned the presence of wellestablished
arbitration institutions,
such as SIAC in Singapore, as an
additional factor they consider
when choosing the seat.7
The
growth in popularity of seats in this
region year-on-year8
may reflect an
increasing willingness by parties
with commercial interests linked to
that locale to also resolve disputes
‘locally’. It will be interesting to see
whether large-scale commercial
projects, such as the Belt and Road
Initiative, will continue to impact
this in the future.
The increases enjoyed by
these seats may also correlate
with a relative reduction in the
percentage of respondents who
included traditionally dominant
European seats, such as London,
Paris and Geneva, in their answers.
London was selected by 64% of
respondents in 2018, making it
the most selected that year, but it
dropped to 54% in this edition of
the survey. Paris fell even further,
from its second place showing in
2018, with 53% of respondents
including it in their selections, to
fourth place this year, as a seat of
choice for 35% of respondents.
Geneva also retained its position in
previous surveys as the fifth most
popular seat, but with a dip in the
percentage of respondents who
included it in their answers—from
26% in 2018 to 13% now.
Similarly, while the other seats
rounding out the top seven in both
2015 and 2018 continue to be seen
as safe choices by respondents—
namely, New York and Stockholm
—seats in other regions have
gained in popularity. Beijing joins
New York as joint sixth most popular
seat, with each chosen by 12%
of respondents. Shanghai comes
in eighth (8%), with Stockholm
dropping from the seventh place
it held in previous surveys to ninth
place (6%). The top ten is rounded
out by Dubai, chosen by 5%
of respondents.
Other cities that were each
listed by 4% to 2% of respondents
included: Zurich; Vienna;
Washington, DC; Miami; Shenzhen;
São Paolo; Frankfurt; and The Hague.
The regional picture
We analysed the results for
respondents practising or operating
in various regions,9
which revealed
a number of fluctuations. London,
for example, topped the charts
for all regions in our 2018 survey;
although it continues to enjoy first
place for most regions this time,
it was not selected as the most
preferred seat for respondents in
Asia-Pacific and did not feature
at all in the top picks for the
Caribbean/Latin America. In
Asia-Pacific, both Singapore and
Hong Kong surpassed London by a
significant margin (more than 20%).
Chart 3: Top-five most preferred seats by region
Percentage of respondents who included the seat in their answer
London ParisGeneva SingaporeHong Kong New York São PauloBeijing
EuropeAsia-Pacific Caribbean/
Latin America
North AmericaAfrica Middle East
76%
67%
37%
30%
26%
66%
55%
46%
38%
25%
78%
63%
48%
29% 27%
64%
54%
21%19% 19%
74%
71%
50%
19%
15%
69% 67%
46%
18%
32%
Hong Kong, Paris and Singapore
were all ranked in the top-five most
preferred seats in all regions.
A number of other popular seats
reached the top five in several
regional subgroups; for example,
Geneva was the fourth most
preferred seat in Europe, Africa and
the Middle East, and fifth in the
Caribbean/Latin America.
Several seats outside the global
top ten did make it to the top ten
in the regions in which they are
located. In Africa, this was the case
with Cairo (12%) and Nairobi (6%);
in Asia-Pacific, Shenzhen (4%);
in the Caribbean/Latin America,
São Paolo (21%), Miami (15%)
and Lima (6%). Madrid (5%) also
made the top ten for the Caribbean/
Latin America. Although it seems
that the ‘global powerhouse’
seats will continue to be popular,
there are many regional seats
which are growing in reputation
and popularity.
Hong Kong, Paris
and Singapore
were amongst
the top-five
preferred seats
in all regions
While the ‘global powerhouse’
seats continue to be popular,
there are many regional seats
which are growing in reputation
and popularity
8 White & Case
What adaptations would make
other seats more attractive?
More than 90 different seats
were mentioned in response to
the previous question on seat
preference. This shows that
although the most popular seats
enjoyed the lion’s share of the
votes, there is still significant
scope for seats outside the top
ranks to attract users. We asked
respondents to indicate what
adaptations would make seats more
attractive other than those they say
they preferred. Respondents could
choose up to three options from a
list of suggestions, with a free-text
‘other’ option.
‘Greater support for arbitration by
local courts and judiciary’ was the
most selected adaptation (56%),
Chart 4: What adaptations would make other seats more attractive to users?
Greater support for arbitration by local courts and judiciary
Increased neutrality and impartiality of the local legal system
Better track record in enforcing agreements to arbitrate
and arbitral awards
Ability to enforce decisions of emergency arbitrators or interim
measures ordered by arbitral tribunals
Ability for local courts to deal remotely with
arbitration-related matters
Political stability of the jurisdiction
Allowing awards to be signed electronically
Third-party funding (non-recourse) permissible in the jurisdiction
Other
56%
54%
47%
39%
28%
25%
14%
8%
3%
Respondents were able to select up to three options
closely followed by ‘increased
neutrality and impartiality of the
local legal system’ (54%) and
‘better track record in enforcing
agreements to arbitrate and arbitral
awards’ (47%). The other choices
ranked as follows: ‘ability to enforce
decisions of emergency arbitrators
or interim measures ordered by
arbitral tribunals’ (39%), ‘ability for
local courts to deal remotely with
arbitration-related matters’ (28%),
‘allowing awards to be signed
electronically’ (14%), ‘political
stability of the jurisdiction’ (9%) and
‘third-party funding (non-recourse)
permissible in the jurisdiction’ (8%).
These adaptations reflect what
were already identified as the
systemic legal traits of a seat
considered to be most important
to users.10
This follows a welltrodden
path of reasons identified
by the respondents in our 2018
survey as the most important when
choosing arbitral seats.11
These
criteria are seen as long-term
markers of quality that determine
user preference. They include
unhindered access to arbitration
promoted by local courts, neutrality
and impartiality of the local
judiciary, and an enforcement
track record.
Once those features are identified
in given seats, there may be other
factors taken into account by
respondents which influence their
choice of one seat over another.
In particular, there seems to be
a growing wish for seats to also
have the judicial and/or political
facility to adapt quickly to changing
user needs, such as the ability to
implement technological advances
to maintain procedural efficiency
and effectiveness (for example,
local courts being able to deal
remotely with arbitration-related
matters). The latter, coupled
with the possibility of awards
being signed electronically, are
issues that were given relatively
little attention pre-pandemic.
Presumably, in light of recent
experience, users are placing more
importance on them now.
There is a growing wish for seats to also have the
judicial and/or political facility to adapt quickly to
changing user needs, such as the ability to implement
technological advances to maintain procedural
efficiency and effectiveness
90+
More than 90
different seats
were mentioned
in response to
the question on
seat preference
92021 International Arbitration Survey
Which ad hoc procedural rules
are most used?
We asked respondents which ad
hoc procedural regimes they had
used most frequently in the past
five years. We included a list of
choices and a free-text box choice
(‘other’), allowing respondents to
select up to three options. Pre-set
choices included: ‘bespoke regimes
agreed by the parties’, ‘CPR NonAdministered
Arbitration Rules’,
‘Grain and Feed Trade Association
Arbitration Rules’,12
‘London
Maritime Arbitrators’ Association
(LMAA) Terms’, ‘national arbitration
laws’, ‘The Construction Industry
Model Arbitration Rules’, and
‘UNCITRAL Arbitration Rules’.
The UNCITRAL Arbitration Rules,
chosen by three-quarters (76%) of
respondents, were a clear winner.
They were followed by ‘national
arbitration laws’ (28%), ‘bespoke
regimes agreed by the parties’
(26%) and the LMAA Terms (13%).
Several interviewees credited
the success of the UNCITRAL
Arbitration Rules to these rules
being carefully designed and
widely tested. Others remarked
on their prevalence and level of
global recognition. This may be
because the UNCITRAL Arbitration
Rules are used across all sectors
in both commercial and investment
treaty arbitration.
Interviewees valued the
procedural flexibility offered by
ad hoc arbitration, which they
felt enhanced party autonomy
compared to institutional arbitration.
This emphasis on party autonomy
throughout the arbitral process was
a recurring theme in interviews.
A number of interviewees also
highlighted the popularity of ad hoc
arbitration for resolving disputes
in sectors such as the maritime
industry and commodity markets.
As one interviewee specialising
in maritime disputes explained,
parties want ‘a dispute resolution
mechanism that was developed by
their sector, for their sector, and
conducted by practitioners from
their sector’.
Which arbitral institutions are
most preferred?
We asked respondents to indicate
their preferred arbitral institutions,
allowing them to specify a maximum
of five different entries (in free-text
form). This generated a list of more
than 50 institutions across the
globe—a strong indication that while
certain institutions are chosen time
and again, users also appreciate a
wide degree of choice.
Of all the nominations, the ICC
stands out as the most preferred
institution (57%), followed by SIAC
(49%), HKIAC (44%) and the LCIA
(39%). These top-four choices have
been the market leaders for well
over a decade.13
This year, CIETAC
(17%) also made it to the top-five
most preferred choices for the first
time. The other institutions in the
Chart 5: If you or your organisation have selected ad hoc arbitration over the past five years,
which of the following procedural regimes were used the most?
Respondents were able to select up to three options
4%
4%
5%
8%
13%
26%
28%
76%
UNCITRAL Arbitration Rules
National arbitration laws
Bespoke regimes agreed by the parties
London Maritime Arbitrators AssociationTerms
Other
The Construction Industry Model Arbitration Rules
CPR Non-Administered Arbitration Rules
Grain and FeedTrade Association Arbitration Rules
Interviewees valued the procedural flexibility offered
by ad hoc arbitration, which they felt enhanced party
autonomy compared to institutional arbitration
76%
The UNCITRAL
Arbitration Rules
were amongst the
most frequently
used ad hoc
regimes by 76%
of respondents
32%
10 White & Case
global top ten were: ICSID (11%),
SCC (7%), ICDR (6%), PCA (5%) and
LMAA14
(5%).
Our 2015 and 2018 surveys
highlighted a noticeable growth
in the percentage of respondents
selecting SIAC.15
This trend was
clearly confirmed in this survey, with
SIAC taking second place overall.
There was also a significant increase
in the percentage of respondents
selecting HKIAC, which took
third place.16
The increases enjoyed by SIAC
and HKIAC may correlate with a
relative reduction in the percentages
of the LCIA and the ICC. The LCIA,
although it remains amongst the
most popular institutions, dropped
to fourth place from second place in
2018. The ICC’s overall percentage
dropped considerably from 77% in
2018 to 57% today.
Interviews confirmed the principal
drivers behind choice of institution
include the general reputation of
the institution and the respondent’s
previous experience of that
institution.17
However, interviewees
revealed that in particular
circumstances they would widen
the list of institutions they might
consider. For example, depending
on the potential value of a given
dispute, practitioners reported that
they would be willing to consider
less well-known institutions offering
competitive fees. The depth and
breadth of the pool of arbitrators
that might be recommended by
an institution was also a factor
highlighted by interviewees, as
discussed further at pp.11 – 12
below. Some interviewees also
mentioned that their perception
of the quality and consistency of
institutional staff and counsel teams
can influence their opinion when
considering institutions. While none
of these considerations in and of
themselves displace the general
factors of reputation and recognition
of an institution, they suggest that
there are multiple distinguishing
features which influence the choice
of one institution over another.
The regional response
An analysis of the subgroups
based on the regions where
respondents principally practise or
operate revealed that the top-three
preferred institutions globally also
rank highly across most of these
regions. The ICC ranks first in all
regions except for Asia-Pacific,
where it is outranked by the SIAC,
which in its turn is also ranked
among the first-five choices in all
regions. The LCIA ranks second in
all regions except for Asia-Pacific.
More regionally based variations
can be noticed outside the top-five
ranks. ICSID and the PCA both
enjoyed a consistent showing,
appearing in the top-ten rankings
of all subgroups. Several other
institutions made it to the top ten
either in all subgroups (e.g., the
SCC) or in almost all subgroups
(e.g., the LMAA18
). There were also
a number of institutions that did
not make the top-ten list globally,
but that were ranked amongst the
top-ten most preferred institutions
in the regions in which they
were based. These include, for
example, VIAC and DIS in Europe,
JAMS and the AAA/ICDR in North
America, DIAC in the Middle East
and the Lagos Court of Arbitration
in Africa.19
Percentage of respondents who included the institution in their answer
Chart 6: What are your or your organisation’s most preferred arbitral institutions?
LCIASIAC HKIAC CIETAC ICSID PCA LMAASCC ICDRICC
49%
44%
17%
11%
39%
7% 6% 5% 5%
57%
The general reputation of the institution and the
respondent’s previous experience of that institution are
the principal drivers behind choice of arbitral institution
50+
More than
50 arbitral
institutions
across the globe
were mentioned
by respondents
32%
112021 International Arbitration Survey
What adaptations would make
other institutions or arbitral rules
more attractive to users?
We asked respondents to indicate
what adaptations would make
other arbitral institutions or sets of
arbitration rules more attractive. A
list of indicative choices was offered,
together with a free-text ‘other’
option, from which respondents
could choose up to three options.
Some of the suggested adaptations
related to provisions in arbitral rules
(whether used in administered
or non-administered arbitrations).
Other suggested adaptations
concerned the service offered by
arbitral institutions and appointing or
administering authorities.
Noticeably, but perhaps
unsurprisingly given the pandemic,
the top-ranked choice (38%) was
‘administrative/logistical support
for virtual hearings’. It was followed
by ‘commitment to a more diverse
pool of arbitrators’ (32%) and
‘transparency of administrative
processes and decisions, such
as selection of and challenges
to arbitrators’ (29%). Other
options chosen by 25% to 20% of
respondents included: ‘provision
of expedited procedures’, ‘more
tailored procedures for complex and
multi-party arbitrations’, ‘provision for
arbitrators to order both virtual and
in-person hearings’, ‘cost sanctions
for delay by arbitrators’, ‘rules giving
extensive case management powers
to arbitrators including robust
sanctions in relation to the behaviour
of parties and counsel’, and
‘provision of secure electronic filing
and document-sharing platforms’.
In our 2018 survey, when we
asked respondents to indicate the
four most important reasons why
they prefer given institutions, the
results showcased a tendency for
users to adopt a ‘macro-perspective’.
This macro-perspective reflects
the main factors that respondents
to our 2018 survey identified as
the ones that most determine
their preference for one institution
over another, namely the ‘general
reputation and recognition’ of
the institution, its ‘high level of
administration’ and users’ ‘previous
experience of the institution’.20
These factors were more important
to users than specific aspects of
either the administration of cases by
the institutions or their respective
rules. The first choice for our current
survey (‘administrative/logistical
support for virtual hearings’) is
clearly an indication of an emerging
need of users due to the pandemic.
The need for adaptation in response
to changing circumstances is further
underlined by the fact that there
was also a demand for rules to
include a ‘provision for arbitrators
to order both virtual and in-person
hearings’ (23%).21
‘Commitment to a more
diverse pool of arbitrators’ (32%)
ranked second across the whole
respondent pool, but was the
joint highest ranked choice of
the in-house counsel subgroup.
This shows the importance of
institutions or appointing authorities
in providing a more diverse pool of
proficient arbitrators.22
Interestingly, several
interviewees highlighted that,
depending on the nature and the
value of the dispute, they might be
Chart 7: Top-five most preferred arbitral institutions by region
ICC LCIA SIAC ICSID HKIAC CIETAC ICDR
79%
57%
39%
21%
14%
64%
46%
30% 30%
25%
87%
51%
31%
27% 27%
79%
65%
37%
23%
17%
81%
63%
47%
15% 14%
70%
58%
40%
27%
23%
Africa Asia-Pacific Europe North AmericaMiddle EastCaribbean/
Latin America
Percentage of respondents who included the institution in their answer
Administrative/logistical support for virtual hearings
is the most important adaptation that would make other
arbitral institutions more attractive
32%
of in-house
counsel would like
administrative/
logistical support
for virtual
hearings
12 White & Case
willing to use less widely known
institutions (such as institutions
based in jurisdictions that are
emerging as arbitration hubs) or
even new entrants to the market.
They explained that trusting in such
institutions can be an effective
means of encouraging greater
diversity, particularly when those
institutions may be in a position
to suggest a different pool of
arbitrators. This could include
arbitrators who may not as yet enjoy
high visibility globally, but who have
particular experience of a region,
applicable law or industry relevant
for a given dispute.
‘Cost sanctions for delay by
arbitrators’ and ‘rules giving
extensive case management
powers to arbitrators including
robust sanctions in relation to
the behaviour of parties and
counsel’ were each selected by
21% of respondents and reflect,
as expanded on in interviews,
the desire for faster arbitration
proceedings and more flexibility. In
relation to the ability of arbitrators to
sanction parties and their counsel,
several respondents felt that
arbitrators are still overly cautious
when it comes to ‘due process
paranoia’.23
As one interviewee
stressed, this ‘timid’ approach
leaves clients with a negative
perception of arbitration. Others
referred to instances of arbitrators
failing to adequately address
‘guerrilla tactics’ by opposing
counsel and parties. It appears from
this that the real concern is not so
much a lack of powers provided
for in arbitral rules, but a perceived
reluctance by arbitrators to exercise
those powers.24
On a related note,
one interviewee emphasised the
role that institutions can play in
improving the quality of arbitrator
performance, especially in terms
of procedural delay. This can be
achieved, the respondent opined, by
more transparency as to arbitrators’
availability and making available data
such as the average time taken to
render awards.
Other interesting questions
concerned the nature and extent
of the services that respondents
would like administering entities
and institutions to offer. On one
hand, respondents have called
for more active support in the
practical conduct of arbitrations,
such as ‘administrative/logistical
support for virtual hearings’ and
‘provision of secure electronic
filing and document sharing
platforms’. On the other hand,
several interviewees, many
of whom practise as full-time
arbitrators, expressed their
dissatisfaction with the way in
which, in their view, some arbitral
institutions have become ‘too
prescriptive’. Interviewees cited
by way of example instances
where they considered arbitral
institutions to have adopted
strong views on matters that are
not clearly regulated under their
rules, an approach which these
respondents considered to be
counterproductive to the flexibility
of the arbitral proceedings.
Chart 8: What adaptations would make other institutions or rules more attractive to users?
Administrative/Logistical support for virtual hearings
Commitment to a more diverse pool of arbitrators
Transparency of administrative processes and decisions,
such as selection of and challenges to arbitrators
Provision of expedited procedures
More tailored procedures for complex and multi-party arbitrations
Provision for arbitrators to order both virtual and in-person hearings
Cost sanctions for delay by arbitrators
Rules giving extensive case management powers to arbitrators including robust
sanctions in relation to the behaviour of parties and counsel
Provision of secure electronic filing and document-sharing platforms
Provision for summary determination/dismissal of unmeritorious claims
Provision of emergency arbitrator facility
Other
38%
32%
29%
25%
24%
23%
21%
21%
20%
18%
13%
6%
Respondents were able to select up to three options
The use of less
widely known
institutions or even
new entrants to
the market can be
an effective means
of encouraging
greater diversity,
particularly when
those institutions can
suggest a different
pool of arbitrators
32%
of in-house
counsel want
commitment
by institutions
to a more
diverse pool of
arbitrators
32%
132021 International Arbitration Survey
Making arbitrations cheaper and
faster:Which procedural options
are we really ready to forgo?
Time and cost are perennially
acknowledged as the biggest
concerns for arbitration users.25
We asked respondents to assume
the role of a party or counsel and
consider, in that context, which of
a list of different procedural options
they would be willing to forgo if this
would make their arbitration cheaper
or faster. Respondents could select
up to three options from the list, in
no order of preference.
With a clear margin of more
than 20% over other options, the
first choice was ‘unlimited length
of written submissions’ (61%).
Interviewees agreed that this was
the option that they would feel
most comfortable foregoing, as they
saw it as a ‘safe’ choice regardless
of the type or profile of the dispute
at stake. Interviewees further
explained that, in their experience,
it has become common practice
for parties to submit unnecessarily
long briefs. Imposition of page
limits was thought most appropriate
for certain types of submissions,
predominantly post-hearing briefs
(as discussed further below).
Interestingly, some interviewees
felt it is not only the parties who
should curb their tendencies in
this regard, suggesting that page
limits should also be set for arbitral
awards, particularly in the context of
investor-state disputes.
In a related vein, 21% of the
respondents would be willing to
do without ‘post-hearing briefs’.
Interviewees revealed a more
nuanced view of post-hearing
briefs: some explained that they
do find post-hearing briefs useful,
especially when an oral closing has
not taken place during a hearing,
but that they work best where the
tribunal provides some guidance
as to content and imposes page
limits. Indeed, imposing page
limits on post-hearing briefs was
almost unanimously deemed
by interviewees as a means to
save time and costs. As several
respondents noted, counsel should
resist the temptation to restate
their entire case again when
preparing their post-hearing briefs.
It was suggested that post-hearing
briefs should not simply function
as an executive summary of the
party’s previous submissions, but
should instead contain reflections
on what has come out of a hearing
and offer a roadmap to the tribunal
for writing the award. On a similar
theme of streamlining written
arguments, respondents also
indicated a willingness to relinquish
‘more than one round of written
submissions’ (24%).
‘Oral hearings on procedural
issues’ (38%) was the second
most popular option that
respondents would be willing to
forgo. Respondents pointed out
that, as procedural issues can
arise frequently throughout an
arbitration, parties and tribunals
should prudently seek to avoid
the additional expense and time
commitment that oral hearings on
procedural issues entail. Fewer
respondents would be willing to
forgo ‘early case management
conferences’ (16%). Interviewees
explained that, in many instances,
early case management conferences
are useful for resolving procedural
issues early on.
‘Document production’ (27%) was
also a popular option to sacrifice.
Many interviewees emphasised that
document production can be a very
costly and time-consuming process.
The time and cost involved is often
disproportionate to the benefits that
a party might hope to derive from
the exercise. Others pointed out
that although document production
makes sense in some cases, in
others, it can be tactically misused.
Several interviewees also underlined
the different expectations that
parties from different legal traditions
have when it comes to document
production.While it might be
expected that counsel from civil law
Chart 9: If you were a party or counsel, which of the following procedural options would you be willing to
do without if this would make your arbitration cheaper or faster?
Respondents were able to select up to three options
Unlimited length of written submissions
Oral hearings on procedural issues
Document production
In-person hearings
More than one round of written submissions
Bifurcation
Post-hearing briefs
Early case management conferences
Cross-examination
Party-appointed experts
Other
61%
38%
27%
25%
24%
22%
21%
16%
15%
13%
2%
60%
of arbitrators
and
51%
of in-house
counsel favour
limiting the
length of written
submissions
32%
31%
of in-house
counsel are
willing to exclude
document
production
32%
14 White & Case
traditions would be more inclined to
do without document production, it
is interesting that many interviewees
from common law backgrounds
also expressed a willingness to limit
document production.
A quarter of respondents (25%)
included ‘in-person hearings’ as
a feature they would be prepared
to forgo.This seems to reflect, to
some extent, the increased level
of comfort users have acquired
with remote hearings in recent
times, and particularly as a result
of logistical difficulties for in-person
hearings resulting from the COVID-19
pandemic.26
However, interviews
revealed that respondents were more
likely to elect this option for hearings
on procedural issues, rather than
substantive hearings.27
A slightly less frequently chosen
option was ‘bifurcation’, which
less than a quarter of respondents
(22%) would elect to eliminate.
Interviewees felt that whether
bifurcation is a means to enhance
efficiency or, conversely, whether
it leads to more costs and delays
depends significantly on the specific
circumstances of the case. As such,
they were less inclined to agree to
exclude the possibility of bifurcation
from the outset.
Only a relatively small percentage
of respondents (15%) indicated
that they would be willing to do
without ‘cross-examination’. In
interviews, respondents expressed
a preference for a more nuanced
approach to this—for example, they
would be more amenable to forgo
cross-examination in cases with less
complex factual backgrounds and
in relation to ‘non-key’ witnesses.
Some respondents thought that a
user’s legal culture may influence
their view, suggesting that civil
lawyers might be more willing
to forgo cross-examination in
certain circumstances.
‘Party-appointed experts’ was
also chosen by a small percentage
(13%).There was a split amongst
interviewees performing different
roles. Some arbitrators took the
view that party-appointed experts
are sometimes used as ‘hired guns’
by parties, which is undesirable.
On the other hand, several counsel
mentioned the also undesirable
risk of a tribunal-appointed expert
becoming a de facto fourth arbitrator.
A recurring theme in interviews
was the sense that arbitration
is becoming increasingly overformalistic,
at the expense of
efficiency. Interestingly, this view was
articulated by arbitrators themselves;
as one arbitrator put it, they have
seen the development over the years
of what they referred to as ‘a kind
of arbitration-formality’ which, taken
too far, can amount to ‘depriving
the parties of the efficiencies they
hoped for when they signed the
arbitration clause’. One example of
this ‘arbitration-formality’ that several
respondents warned against is an
excessive tendency to ‘mimic court
processes’. Respondents stressed
the importance of flexibility as a
means to aid efficiency and reduce
costs by tailoring procedures to the
needs of the dispute in question,
rather than adopting rigid or
excessively formalistic procedures.
As one respondent pithily noted,
arbitration should stop ‘taking itself
so seriously’! Closer monitoring
of costs may also encourage
greater efficiency—one respondent
suggested that institutions should
introduce costs budgeting rules
to help parties and their funders
monitor and plan for their potential
costs exposure.
Respondents stressed the importance of flexibility as a means
to aid efficiency and reduce costs
40%
of arbitrators
would forgo oral
hearings on
procedural issues
32%
152021 International Arbitration Survey
Diversity on arbitral tribunals:
What’s  the prognosis?
Summary
	… More than half of respondents agree that progress has been
made in terms of gender diversity on arbitral tribunals over the
past three years. However, less than a third of respondents
believe there has been progress in respect of geographic, age,
cultural and, particularly, ethnic diversity.
	… Respondents are divided as to whether there is any connection
between diversity on a tribunal and their perception of the
arbitrators’ independence and impartiality. Just over half of
the respondents (56%) stated that diversity across an arbitral
tribunal has a positive effect on their perception of the arbitrators’
independence and impartiality, but more than one third (37%)
took a neutral view. Others consider the enquiry redundant,
on the basis that the call for more diversity does not require
further justification.
	… 59% of respondents continue to emphasise the role of appointing
authorities and arbitral institutions in promoting diversity,
including through the adoption of express policies of suggesting
and appointing diverse candidates as arbitrators. However,
the significance of the role of counsel is highlighted by about
half of respondents, who included ‘commitment by counsel to
suggesting diverse lists of arbitrators to clients’ amongst their
answers. In-house counsel also bear the onus of encouraging
diversity through their choice of arbitrators.
	… Many respondents feel that opportunities to increase the visibility
of diverse candidates should be encouraged through initiatives
such as ‘education and promotion of arbitration in jurisdictions
with less developed international arbitration networks’ (38%),
‘more mentorship programmes for less experienced arbitration
practitioners’ (36%) and ‘speaking opportunities at conferences
for less experienced and more diverse members of the arbitration
community’ (25%). Building visibility is particularly important
in light of the perception that users prefer arbitrator candidates
about whom they have some knowledge or with whom they have
previous experience.
	… The general consensus amongst respondents is that caution should
be exercised when exploring whether adaptations in arbitral practice
experienced during the COVID-19 pandemic may have an impact
on promotion of diversity objectives, as it can go both ways. Virtual
events, meetings and hearings may facilitate participation by more
diverse contributors, but this may be hindered by unequal access to
technology and the challenges of building relationships remotely.
The many faces of diversity: How
much progress has been made?
Few, if any, would disagree
that promoting diversity at all
levels, including in the practice
of international arbitration, is a
positive thing. Calls for greater
diversity, especially in relation to
the appointment of arbitrators,
have been prevalent for some
time in the international arbitration
community. The extent of progress
towards this goal is a matter of
debate. Respondents were therefore
asked whether, and to what extent,
they agreed or disagreed with
the proposition that progress has
been made in the past five years
with regard to various aspects of
diversity (i.e., gender, geography,
age, culture and ethnicity) in terms
of arbitral appointments.
Very few respondents expressed
either strong agreement or
disagreement with the central
proposition in relation to any of
the five listed aspects of diversity.
While it is encouraging that the
majority of respondents (61%)
agreed that some progress has
been made in relation to gender
diversity, this contrasts sharply
with the position for the other
featured aspects of diversity.
In relation to geographic, age,
cultural and ethnic diversity,
less than a third of respondents
positively agreed in each case that
progress has been made in recent
years. Finally, for all aspects of
diversity, a significant percentage
of respondents (ranging from 21%
to 35%) took a neutral stance, i.e.,
they neither agreed nor disagreed
that progress has or has not
been made.
Perhaps most revealing of all,
these findings almost mirror the
results for the same question
posed in our 2018 survey.28
Despite
the increased amount of focus
of respondents
disagree that
progress has been
made in recent
years in relation to
ethnic diversity
34%
16 White & Case
Chart 10: Do you agree with the statement that progress has been made in the following aspects of
diversity on arbitral tribunals over the past three years?
0 10 20 30 40 50 60 70 80 90 100
Gender diversity
Geographic diversity
Age diversity
Cultural diversity
Ethnic diversity
4%
7%
6%
6%
7%
14%
23%
25%
25%
27%
21%
32%
32%
34%
35%
48%
33%
33%
31%
28%
13%
5%
3%
4%
3%
Strongly disagree Disagree Neither agree nor disagree Strongly agreeAgree
on, and awareness of, diversity
issues and initiatives since then,
respondents clearly feel that this
has not as yet translated into actual
or sufficient positive change.
One difficulty identified by
interviewees who were generally
neutral on whether advances
have been made is that it is
hard to measure progress in this
context. Although the publication
by institutions and appointing
authorities of diversity-related
statistics for arbitral appointments
is to be welcomed in terms
of providing some degree of
verified information, it was noted
that these statistics represent
limited data sets. On a similar
note, respondents mentioned
the difficulty in defining different
aspects of diversity. For example,
interviewees questioned how
age diversity can be statistically
measured in the absence of
agreement as to how to define
it in the first place.
Ethnic diversity, in particular,
continues to be an area where
respondents feel there is a distinct
need for improvement. As in our
2018 survey, the statement that
recent progress has been made
in relation to ethnic diversity had
the least agreement among the
five listed aspects of diversity,
with only 31% of respondents
agreeing.29
Some interviewees
expressed their frustration and
dismay at the lack of progress in
this area. One perception was
that, unless there is a level playing
field in terms of opportunities
for engagement and visibility
within the arbitration community,
it is difficult to see how greater
diversity can be achieved in arbitral
appointments. One interviewee,
for example, tellingly recounted
attending an arbitration conference
focusing on arbitration in Africa
where none of the invited speakers
were from Africa themselves.
Similar ‘pipeline’ issues were also
raised in relation to other aspects
of diversity.30
While the question posed to
respondents lists only a small
selection of aspects of diversity,
interviewees raised other aspects
of diversity which they felt should
also be given greater consideration.
In particular, some interviewees
focusing on arbitration in specific
industries felt that the demands
of certain types of disputes would
be better served by less ‘legalistic’
arbitration procedures. They noted
in this context that there is
room for more diversity in terms
of arbitrator ‘background’, i.e.,
welcoming more arbitrators who
come from relevant industries and
who are not necessarily qualified
lawyers, but who have training in
international arbitration procedure.
Diversity, independence and
impartiality: Is there a connection?
We then explored whether there is
any correlation between diversity
on a panel of arbitrators and users’
perception of the arbitrators’
independence and impartiality.
Responses were divided and
no single viewpoint attracted a
significant majority of support.
Just over half of the respondents
(57%) stated that diversity has
either ‘the most positive effect’
(36%) or ‘positive effect’ (21%) on
their perception of the arbitrators’
independence and impartiality. Only
6% said that it has a ‘negative’ (5%)
or ‘the most negative effect’ (1%).
More than a third of respondents
(37%), however, said that diversity
across a panel of arbitrators has
no effect at all on their perception
of the arbitrators’ independence
and impartiality.
This outcome was replicated
across those interviewed on this
issue, who insisted that a nuanced
approach is necessary on diversity.
Many felt that the answer essentially
depends on two factors: the type
and particularities of a given dispute
and the type of diversity in question.
Put differently, the majority of
interviewees felt it is not possible to
Ethnic diversity continues to
be an area where respondents
feel there is a distinct need
for improvement
172021 International Arbitration Survey
Chart 11: What effect does diversity across a panel
of arbitrators have on your perception of their
independence and impartiality?
1 Most positive effect
2 Positive effect
3 No effect at all
4 Negative effect
5 Most negative effect
1%
21%
36%
37%
5%
provide a ‘one-size-fits-all’ answer
to this question—rather, one must
take into account what is meant by
‘diversity’ in each given case. So,
a respondent’s choice of a positive
or neutral answer to this question
should not simply be taken at face
value. As the interviews revealed, it
is neither the case that those who
replied in the positive unreservedly
felt that an arbitral panel that lacks
diversity would be partial as a
result, nor that those who gave a
neutral response felt that diversity is
always irrelevant.
Additional nuances were also
offered when specific aspects
of diversity were considered
by interviewees.
One view articulated in a number
of interviews was that, when it
comes to gender diversity, lack
thereof has no impact on those
respondents’ perception of the
tribunal’s independence and
impartiality. As one interviewee
explained, gender diversity on
tribunals is a laudable goal, but they
would not automatically question
the impartiality or independence of a
panel just because its members were
all female or all male. Similarly, age
diversity was largely considered to be
irrelevant in terms of perceptions of
independence and impartiality.
Ethnic, geographic and cultural
diversity were often considered
to be interconnected. Some
interviewees, both counsel and
arbitrators, stressed that the
impact of ethnic, geographic and
cultural diversity on perceptions of
impartiality and independence of
arbitrators can depend, in part, on
the nature of a given dispute. This
is particularly the case in investorstate
arbitration, where they felt
diversity or the lack thereof could be
viewed as having an impact on both
party and public perceptions of the
legitimacy of the process. Another
example from interviewees is
where an arbitral panel is composed
entirely of arbitrators who have no
relationship with or understanding
of a specific country or culture
central to a dispute. This could lead
parties to feel that the arbitrators
might fail fully to appreciate
cultural differences and (perhaps
subconsciously) favour parties from
areas or cultures with which the
arbitrators are more familiar. This
concern arose particularly in relation
to arbitrators from North America
and Western Europe when dealing
with disputes involving legal or
cultural mores from other parts of
the world.
Finally, a significant number of
interviewees rejected the entire
premise of the question, expressing
that it is simply unnecessary, in
this day and age, to seek to draw
any correlation between diversity
and arbitrators’ independence and
impartiality in order to justify calls
for increased diversity. It should
suffice that having more diverse
pools of arbitrators is the right thing.
The real question for them is how to
encourage more diversity in practice.
Encouraging greater diversity:
Yes, but how?
Respondents were asked which
initiatives they considered to be
most effective in encouraging
greater diversity in terms of arbitral
appointments. Respondents were
asked to choose up to three options
from a list of suggestions, to
which they could also elect to add
suggestions of their own.
‘Appointing authorities and
institutions adopting an express
policy of suggesting and appointing
diverse candidates as arbitrators’
was the most chosen option
(59%). This reflects a preference
for the institutions to be proactive
in this regard. It also confirms the
prevailing perception of arbitration
users as to which participants in the
international arbitration community
wield the most influence on the
promotion of diversity.31
This perspective was confirmed
by an overwhelming majority of
interviewees. As some explained,
arbitral institutions (and, by
extension, other appointing
authorities) can exercise this
influence when they are called upon
While gender diversity on tribunals is a laudable goal,
users would not automatically question the impartiality
or independence of a panel just because its members
were all female or all male
of respondents
agree that
progress has been
made in recent
years in relation to
gender diversity
61%
18 White & Case
Chart 12: Which of the following initiatives do you consider to be most effective in encouraging greater
diversity in terms of arbitral appointments?
Appointing authorities and institutions adopting an express policy of
suggesting and appointing diverse candidates as arbitrators
Commitment by counsel to suggesting diverse lists of arbitrators to clients
Education and promotion of arbitration in jurisdictions with less developed
international arbitration networks
Mentorship programmes for less experienced arbitration practitioners
Speaking opportunities at conferences for less experienced and more
diverse members of the arbitration community
Parties opting for institutional rather than party nomination of arbitrators
Dedicated interest groups that promote diversity in
particular aspects or areas, e.g., ArbitralWomen, Africa Arbitration
Association, The Alliance for Equality in Dispute Resolution
Dedicated policy texts that promote diversity, e.g., The African Promise,
The Equal Representation in Arbitration Pledge
Other
59%
46%
38%
36%
25%
23%
22%
11%
2%
Respondents were able to select up to three options
by parties to select tribunal members
or presiding arbitrators, either from
the outset or when the parties or coarbitrators
have been unable to reach
an agreement on appointments.
Several interviewees opined that
institutions and appointing authorities
were also likely to maintain or have
access to databases reflecting a
larger pool of candidates for tribunals
than parties or their counsel might
otherwise consider. Representatives
of various arbitral institutions
confirmed that increasing diversity
across tribunals is high on their
agenda when appointing arbitrators.
As discussed at pp.11 – 12 above,
interviewees also saw an opportunity
presented by the growing presence
of regional and less widely known
arbitral institutions and the role they
could play in promoting diversity
objectives, including by suggesting
and appointing diverse arbitrator
candidates.
However, while appointing
authorities and institutions
undoubtedly play a major role in
arbitral appointments, it was generally
agreed that the larger proportion of
candidates are nominated by parties
and their counsel.32
The significance
of the role of counsel was highlighted
by 46% of respondents, who
included ‘commitment by counsel to
suggesting diverse lists of arbitrators
to clients’ amongst their answers.
Ultimately, it is always the demands of the case that
determine choice of arbitrators
The prevailing sentiment amongst
interviewees, however, was that
this is often easier said than done.
Some private practitioners admitted
that they do not necessarily suggest
as diverse a spread of candidates
as they could when proposing lists
of potential arbitrators to clients.
Several interviewees reported that
they encounter resistance from
their clients when they do suggest
candidates with whom the clients
are relatively unfamiliar; similarly,
clients are often not willing to trust
suggested names who have less
experience as arbitrators. The vast
majority of interviewees emphatically
pointed out that, ultimately, it is
always the demands of the case that
determine their choice of arbitrators.
One interviewee noted it is not
always easy for counsel to persuade
clients to consider a wider range of
arbitrators. However, this does not
absolve them of the responsibility
to carry out the necessary due
diligence and propose and promote
diverse choices to their clients.
Interviewees also emphasised that
in-house counsel have the ultimate
power to choose between potential
arbitrator candidates and so the onus
is on them to encourage diversity by
their choices.
This theme of responsibility
of both external and in-house
counsel and, in particular, of
more senior members of the
arbitration community in promoting
diversity was emphasised by
several interviewees. Notably,
this included both arbitrators and
in-house counsel. One point that
was repeatedly made is that, even
192021 International Arbitration Survey
though it is undoubtedly important
to promote diversity across arbitral
panels, the reality is that a lot
of work remains to be done in
promoting diversity across counsel
teams. Drawing attention to this
‘pipeline’ issue, one interviewee
noted that ‘today’s counsel may be
tomorrow’s arbitrators’.
The third most cited suggestion
(38%) was ‘education and promotion
of arbitration in jurisdictions with
less developed international
arbitration networks’. ’More
mentorship programmes for less
experienced arbitration practitioners’
ranked fourth (36%). In addition,
a quarter of respondents (25%)
included ‘speaking opportunities at
conferences for less experienced
and more diverse members of the
arbitration community’ as a way
to encourage greater diversity.
As explained in the interviews,
these events help increase the
visibility of newer entrants to the
arbitration field. Organisers of
such events are urged to make
sure that their lists of speakers
and moderators reflect diversity
of all kinds. Building visibility is
particularly important, because
users tend to prefer arbitrator
candidates about whom they have
some knowledge or with whom they
have previous experience.
A number of respondents also
opted for ‘dedicated interest
to online conferences and events
has opened up participation to
wider audiences worldwide.
This also offers the opportunity
for speakers at those events to
introduce themselves to members
of the arbitration community with
whom they may not otherwise
have been able to connect. Remote
working could facilitate access
to the arbitration community for
people who may have been unable
to travel.33
Several interviewees also
thought increased use of IT could
encourage inclusion of younger
arbitrators who are more familiar
with new technologies.
Cautious notes were also
sounded on how much impact there
may be on diversity objectives.
Some interviewees, including
arbitrators, speculated if the lack
of in-person meetings between
members of a tribunal would push
those selecting arbitrators to prefer
a more well-known candidate with
existing relationships with other
tribunal members. They attributed
this to a fear that it may be more
difficult for newer candidates to
establish those relationships of
trust and confidence remotely.34
Unequal access to reliable and
affordable technology required for
remote participation in hearings,
meetings and community events
was also flagged by many as
a challenge.
While it is undoubtedly important to promote diversity across arbitral
panels, the reality is that a lot of work remains to be done in promoting
diversity across counsel teams, too
groups that promote diversity in
particular aspects or areas, e.g.,
ArbitralWomen, Africa Arbitration
Association, The Alliance for
Equality in Dispute Resolution’
(22%) and ‘dedicated policy
texts that promote diversity, e.g.,
The African Promise, The Equal
Representation in Arbitration
Pledge’ (11%). However,
a number of interviewees
expressed scepticism with regard
to the proliferation of groups
promoting particular aspects
of diversity relative to their
tangible contribution.
Diversity and the pandemic:
A blessing, a curse or irrelevant?
The arbitration community has had
to adapt in many ways in response
to the COVID-19 pandemic.We
sought interviewees’ views on any
potential correlation between the
pandemic, the necessary adaptations
in the practice of arbitration and the
promotion of diversity objectives.The
general consensus was that it can go
both ways.
On the positive side was that
there might be new opportunities
to increase the visibility of
practitioners from groups that
are underrepresented or who are
based in jurisdictions which are
not amongst the best-known hubs
for international arbitration. For
instance, the shift from in-person
46%
of respondents
encourage
commitment
by counsel to
suggesting diverse
lists of arbitrators
to clients
20 White & Case
The use of technology to support
the practice of international
arbitration has become increasingly
commonplace. In particular, the
arbitration community has shown
a desire to embrace technology
that boosts efficiency, identifying
the wish for ‘increased efficiency,
including through technology’ as the
factor most expected to influence
the future evolution of international
arbitration.35
The COVID-19 pandemic
has presented challenges for the
international arbitration community,
but information technology tools
have allowed practices to be adapted
to new circumstances. We explored
the impact of the use of technology
in arbitration: how it has changed
in recent years; which technologysupported
changes may continue
to be favoured by users in the
future; and whether adaptations
in practice highlighted during the
pandemic represent a natural,
continuing evolution rather than a
crisis‑driven revolution.
Increased use of IT, but AI remains
science fiction
Firstly, we set out to investigate
current usage of certain forms of
information technology (IT) and
measure this against the level of
usage reported by respondents to
our 2018 survey.36
Respondents
were asked to indicate how often
they have used the following forms
of IT in international arbitrations:
‘videoconferencing’, ‘hearing room
technologies (e.g., multimedia
presentations, real-time electronic
transcripts)’, ‘cloud-based storage
(e.g., FTP sites, cloud-based
storage)’, ‘artificial intelligence (e.g.,
data analytics, technology-assisted
document review)’ (AI) and ‘virtual
hearing rooms’.
‘Videoconferencing’ and ‘hearing
room technologies’ were the
most commonly used forms of
Use of technology:
The virtual reality
Summary
	… Technology continues to be widely used in international
arbitration, particularly ‘videoconferencing’ and ‘hearing room
technologies’, but the adoption of AI still lags behind other forms
of IT.
	… The increase in the use of virtual hearing rooms appears to be the
result of how the practice of arbitration has adapted in response
to the COVID-19 pandemic, as users have been forced to explore
alternatives to in-person hearings.
	… If a hearing could no longer be held in person, 79% of
respondents would choose to ‘proceed at the scheduled time
as a virtual hearing’. Only 16% would ‘postpone the hearing
until it could be held in person’, while 4% would proceed with a
documents-only award.
	… Recent (and, in many cases, new) experience of virtual hearings
has offered an opportunity to gauge users’ perception of this
procedural adaptation. The ‘potential for greater availability of
dates for hearings’ is seen as the greatest benefit of virtual
hearings, followed closely by ‘greater efficiency through use
of technology’ and ‘greater procedural and logistical flexibility’.
Aspects that gave respondents most cause for concern included
the ‘difficulty of accommodating multiple or disparate time zones’,
the impression that it is ‘harder for counsel teams and clients
to confer during hearing sessions’ and concerns that it might be
‘more difficult to control witnesses and assess their credibility.’
The fallibility of technology and the phenomenon of ‘screen
fatigue’ were also cited.
	… Going forward, respondents would prefer a ‘mix of in-person
and virtual’ formats for almost all types of interactions, including
meetings and conferences. Wholly virtual formats are narrowly
preferred for procedural hearings, but respondents would keep
the option of in-person hearings open for substantive hearings
rather than purely remote participation.
Arbitrationusersshouldbeforward-lookingandpreparedto
dealwithtransformativetechnologies
72%
of respondents
sometimes,
frequently or
always use virtual
hearing rooms
32%
212021 International Arbitration Survey
technology, with 63% of users
claiming that they ‘always’ or
‘frequently’ use these aids, and a
further 27% and 25% respectively
saying they ‘sometimes’ utilise
them. More than half of respondents
‘always’ or ‘frequently’ use ‘cloudbased
storage’ (56%), with another
quarter of respondents (24%)
‘sometimes’ using this form of IT.
Respondents also avail themselves
of ‘virtual hearing rooms’—38% of
respondents ‘always’ or ‘frequently’
use this aid, while a further 35%
‘sometimes’ make use of these
platforms. Again, proportionately
fewer respondents have ‘never’ or
‘rarely’ made use of these aids.37
When compared to the results of
the same enquiry posed in our 2018
survey, the use of hearing room
technologies, videoconferencing
and cloud-based storage has
remained relatively consistent.38
This is perhaps surprising, given
the expectations articulated by
respondents to our 2018 survey,
an overwhelming majority of
whom expressed the view that
‘videoconferencing' (89%), ‘cloudbased
storage’ (91%) and ‘hearing
room technologies’ (98%) are
tools that arbitration users should
make use of more often.39
One
might have also expected the
changing circumstances resulting
from the COVID-19 pandemic to
have hastened the adoption of
these tools.
One possible explanation for
the lack of movement in this
regard may be that those who
were already using those forms
of IT previously have continued to
do so. However, those who were
infrequent or occasional users have
not since had sufficient reason to
significantly change their practices,
notwithstanding the effect of the
pandemic. For example, if hearing
room technology is thought to be
unnecessary or disproportionately
expensive for a given dispute, this
cost-benefit analysis might not
automatically be affected by the
pandemic. It may even be that
parties would be under greater
pressure than before to reduce costs
or logistical complexity. Nor would a
switch from an in-person to a virtual
hearing necessarily in and of itself
impact the decision whether to use
tools such as real-time transcription
or multimedia presentations. In a
similar vein, interviewees pointed
out that arbitrations in particular
sectors are frequently determined
without oral hearings. The pandemic
would have comparatively less
effect on the practical conduct of
documents-only arbitrations, so
those involved in them would be
correspondingly unlikely to have
significantly increased their usage of
certain forms of IT.
By contrast, there appears to
have been an explosion in the use
of virtual hearing rooms: 72% of
respondents report using virtual
hearing rooms at least 'sometimes’,
if not ‘frequently’ or ‘always’,40
in
stark contrast to our 2018 survey,
when 64% of respondents said
that they had ‘never’ utilised virtual
The pandemic has served as
a catalyst to hasten the wider
awareness and acceptance of
virtual hearing rooms
Chart 13: How often have you used the following forms of information technology in
an international arbitration?
Videoconferencing
Hearing room technologies (e.g., multimedia
presentations, real-time electronic transcripts)
Cloud-based storage
(e.g., FTP sites, data rooms)
Virtual hearing rooms
Artificial intelligence (e.g., data analytics,
technology-assisted document review)
0 10 20 30 40 50 60 70 80 90 100
5% 5% 27% 48% 15%
7% 5% 25% 39% 24%
11% 10% 24% 36% 20%
14% 12% 35% 33% 5%
35% 24% 26% 13% 2%
Never Rarely Sometimes AlwaysFrequently
hearing rooms and a further 14%
said they had used them ‘rarely’.41
Unlike many of the other forms
of IT we considered, this wholesale
shift in use of virtual hearing rooms
would logically appear to be the result
of how the practice of arbitration
has adapted in response to the
COVID-19 pandemic, as users have
been forced to explore alternatives to
in-person hearings.The signals that
the arbitration community was willing
to embrace greater use of technology
have been there for some time; even
in 2018, the use of virtual hearing
rooms was not wholly unknown. In
this regard, it could be said that the
pandemic has served as a catalyst
to hasten the wider awareness
and acceptance of an adaptation
that some users of arbitration had
22 White & Case
already begun to adopt.Whether this
increased recourse to virtual hearing
rooms will be sustained after the
pandemic remains to be seen, as we
explore further below.
On the other side of the spectrum,
even though there has been a
noticeable increase in the use of AI
since 2018, adoption of AI continues
to lag behind other forms of IT.42
35% of the respondent group stated
that they have ‘never’ used AI,
while 24% stated that they have
used AI rarely. Only 15% declared
that they used AI ‘frequently’ or
‘always’. Interviews reveal that this
use of AI refers almost exclusively
to technology-assisted document
review. As one interviewee described
it, AI has been a ‘brilliant revolution
for e-discovery’,thereby enhancing
procedural efficiency.
Several interviewees mentioned
occasional use of other AI tools, such
as data analytics. A recurring theme
in these discussions was that AI tools
are still considered to be relatively
expensive and thus not affordable
for all arbitration users. It was also
noted that, even where clients are
able to undertake the expense,
they are not always persuaded that
these tools will have an added value
that will justify the high costs they
entail.This is particularly the case for
lower value or less complex or data-
intensive disputes.
Interviews further revealed that
there is a general lack of familiarity
with new technologies, coupled,
in some cases, with a continuing
sense of mistrust. Interviewees
from all groups expressed a degree
of scepticism towards the potential
use of AI tools and algorithms
for predictive justice.They raised
ethical considerations and doubts
as to how much such tools can or
should interfere with the adjudicative
function.The vast majority of
interviewees felt that AI cannot
substitute for human arbitrators
and counsel.
Other interviewees felt that the
potential benefits of the evolving
use of IT aids should not be held
back by this lack of familiarity and
the fear that it can engender. They
emphasised that all stakeholders
should adapt. This includes through
training to familiarise themselves
with technology and new tools that
can impact the arbitration process.
This would also assist stakeholders
in assessing potential related
risks (for example, concerns as
to whether use of some IT tools
may lead to claims of due process
violations). One interviewee noted
that arbitration users not only need
to be quicker to adapt to technology
in the future, but must also guard
against complacency or ‘selfcongratulation’
for having adapted
thus far to existing technologies.
They urged users to be forwardlooking
and prepared to deal with
‘transformative technologies’. Nor
did interviewees feel that use
of advanced technologies is the
province only of those with deep
pockets. One interviewee, for
example, predicted that adjudication
by AI could have a potential role in
the future for lower-value disputes.
Overall, interviewees are keen
for progress in technology and its
use in international arbitration to
continue. The ‘big picture’ view, as
espoused by one respondent, is that
‘arbitration should (and could) always
be at the forefront of innovation [in]
dispute resolution’.
Hearings:Virtual now or
in-person later?
Hearings are the key stage for many
arbitrations. We asked what the
preferred course of action would
generally be for participants faced
with what has recently become a
commonplace dilemma: a scheduled
in-person hearing that can no longer
be held in person at that time
because of the COVID-19 pandemic.
Would they rather ‘postpone the
hearing until it could be held in
person’, ‘proceed at the scheduled
time as a virtual hearing’ or ‘proceed
with an award rendered on the basis
of documents only’?
A clear majority (79%) said
they would rather ‘proceed at the
scheduled time as a virtual hearing’,
while 16% would ‘postpone the
hearing until it could be held in
person’ and 4% would proceed
with a documents-only award.
Two key points emerged from
interviews. First, and as noted
above, although virtual hearings
were not widely seen prior to the
pandemic, the idea was not new
and the technology was available.43
This means arbitration users were
already equipped with the available
tools, and so were able to adapt
3%
80%
17%
Chart 14: In general, if you had a scheduled in-person
hearing that could no longer be held in person at that
time, would you rather:
Proceed at the scheduled
time as a virtual hearing
Postpone the hearing until it
could be held in person
Proceed with an award on the
basis of documents only
The vast majority of interviewees
felt that AI cannot substitute for
human arbitrators and counsel
87%
of arbitrators
would prefer to
hold a scheduled
hearing virtually
if it can’t be held
in person
32%
232021 International Arbitration Survey
easily and relatively quickly to the
remote environment. Second,
this readiness to switch to virtual
hearings was not instant. Despite
this availability of technology,
the majority of interviewees
confessed that their initial reaction
at the start of the pandemic was
a sense of procedural paralysis
or a preference to ‘wait and see’.
They reported that in the first
months of the pandemic, they
generally preferred to postpone
any scheduled hearings in the
expectation that the consequent
delays would be of relatively short
duration. As it became clear that
the exceptional circumstances of
the pandemic could continue for
some time, there was a shift in
attitude towards proceeding at
the scheduled time using a virtual
format. Interviewees explained
that this shift was motivated by
the practical need to limit the
time and costs consequences of
indefinite procedural delay. Those
who were familiar with forms of
remote participation even before
the pandemic cited this familiarity
as another reason that led them
to lean towards a remote hearing
instead of postponing.
Interestingly, breaking down the
results by respondents’ primary
role revealed that arbitrators
overwhelmingly leant towards
holding the hearing as scheduled
but in a virtual format (87% of
arbitrators selected this option).
As interviews revealed, arbitrators
were acutely conscious of the
difficulty in accommodating
multiple postponed hearings in
already full diaries. They feared that
the need to find multiple fresh sets
of hearing dates might lead to even
more extensive delays.
It is also interesting to note
that some interviewees who said
they would opt for a documentsonly
procedure disclosed that
this is a basis on which they
routinely practice in any event. For
example, arbitrations involving the
trade and maritime sectors are
commonly conducted without the
need for hearings. Interviewees
explained they would likely be
more comfortable with the idea of
forsaking an oral hearing in favour
of a documents-only process than
users who are more familiar with,
or expect, oral hearings to be part
of the process—whether in person
or virtual.
Not a black or white picture:
The pros and cons
By and large, the arbitration
community’s reaction after the
initial procedural paralysis due to
the pandemic was pragmatic. In
essence, that the show must go on.
The resulting (and, in many cases,
new) experience of virtual hearings
has offered an opportunity to gauge
users’ perception of this procedural
innovation. We asked respondents
what they deemed to be the main
advantages and disadvantages
of virtual hearings. In each case,
respondents were able to choose
up to three options from a list of
suggested features, and could also
include their own suggestions.
The ‘potential for greater
availability of dates for hearings’
was seen as the greatest benefit
of virtual hearings (65%), followed
closely by ‘greater efficiency
through use of technology’
(58%) and ‘greater procedural
and logistical flexibility’ (55%).
One-third (34%) of respondents
included ‘less environmental impact
than in-person hearings’. ‘Fewer
distractions for advocates and
arbitrators’ and the potential to
‘encourage greater diversity across
tribunals’ were each chosen by 13%
of respondents, closely followed by
‘better view of people’s faces than
at in-person hearings’ (12%).
The biggest disadvantages of
virtual hearings were found to
be ‘difficulty of accommodating
multiple or disparate time zones’
and the impression that it is ‘harder
for counsel teams and clients to
confer during hearing sessions,
Potential for greater availability
of dates for hearings
Greater efficiency through
use of technology
Greater procedural and
logistical flexibility
Less environmental impact than
in-person hearings
May encourage greater
diversity across tribunals
Fewer distractions for advocates
and arbitrators
Better view of people’s faces
than at in-person hearings
Other
Chart 15: What are the main advantages of virtual hearings?
65%
58%
55%
34%
13%
13%
12%
5%
Respondents were able to select up to three options
65%
of respondents
think a key
advantage of
virtual hearings
is ‘potential
for greater
availability
of dates’
32%
24 White & Case
i.e., other than in breaks’, each
chosen by 40% of respondents.
Almost as many respondents
thought it might be ‘more difficult
to control witnesses and assess
their credibility’ (38%). Issues
relating to technology were also of
concern: ‘Technical malfunctions
and/or limitations (including
inequality of access to particular
and/or reliable technology)’ and
‘more difficult for participants to
maintain concentration due to
‘screen fatigue’ were each chosen
by 35% of respondents. Between a
quarter and a third of respondents
selected ‘confidentiality and
cybersecurity concerns’ (30%) and
the view that it is ‘more difficult to
‘read’ arbitrators and other remote
participants’ (27%).
Views expressed in interviews
were diametrically opposed. This
may not seem remarkable in
the context of questions asking
respondents to turn their attention
separately to the pros and cons
rather than considering issues in the
round. However, notwithstanding
the way in which the questions were
phrased, interviewees tended to
come down on one side or another:
either very positive towards virtual
hearings, or very sceptical of them.
This general opposition of
views is exemplified by the fact
that the main advantage and
main disadvantage identified by
the respondents both related to
scheduling issues: the perceived
ease of finding more available
dates to schedule virtual as
opposed to in-person hearings on
the one hand, and the challenge
of accommodating disparate time
zones on the other. Interviewees
highlighted that the truly global
nature of international arbitral
practice means that the various
stakeholders in any given case
(e.g., party representatives,
counsel, arbitrators, witnesses and
experts) may be located in different
places and, critically, different
time zones all over the world. This
makes it particularly challenging
to find a given set of hours in the
course of a day that would be
equally convenient and fair for
all participants.
On the issue of ease, or lack
thereof, of team communications
during virtual hearing sessions,
interviewees recounted that
they have used various means of
communication within their teams.
However, they have found that
none of them compare to being
in the same room physically. This
extends to communications outside
the strict confines of the hearing
room. A number of interviewees,
in particular arbitrators, explained
that in-person hearings offer the
merit of face-to-face deliberations
and casual exchanges (for example,
over shared meals or in scheduled
breaks) that are not simply social
encounters. They facilitate the
arbitral process by encouraging
Difficulty of accommodating multiple
or disparate time zones
Harder for counsel teams and clients to confer during
hearing sessions, i.e., other than in breaks
More difficult to control witnesses and
assess their credibility
Technical malfunctions and/or limitations (including
inequality of access to particular and/or reliable technology)
More difficult for participants to maintain
concentration due to ‘screen fatigue’
More difficult to ‘read’ arbitrators and other
remote participants
Harder for arbitrators to confer during hearing
sessions, i.e., other than in breaks
Potential due process concerns impacting
enforceability of any award
Potential for ethical or procedural abuses
Other
Confidentiality and cybersecurity concerns
Chart 16: What are the main disadvantages of virtual hearings?
40%
40%
38%
35%
35%
30%
27%
15%
11%
8%
2%
Respondents were able to select up to three options
As far as virtual hearings are concerned, respondents
tended to come down on one side or another: either very
positive towards them, or very sceptical of them
252021 International Arbitration Survey
a more collegial atmosphere,
making it easier to come to
agreements with co-arbitrators or
other participants.44
In the same
vein, interviewees in the role
of counsel mentioned finding it
easier to resolve such things as
minor procedural issues in faceto-face
discussions in more casual
environments, such as over the
coffee machines in breaks or a
quick knock on the door. In a virtual
environment, dealing with the same
kind of minor issues is more likely
to be a more formal and timeconsuming
process.
However, respondents did not
appear to be unduly concerned
about the enforceability of awards
when hearings were held virtually.
Only 8% of respondents thought
‘potential due process concerns
impacting enforceability of any
award’ was one of the main
disadvantages of virtual hearings.
Only 11% pointed to ‘potential
for ethical or procedural abuses’.
Interviewees revealed that any
initial concerns they may have had
were alleviated by the first positive
messages coming from domestic
courts considering enforceability
questions arising from virtual
hearings. They were also reassured
by statements and guidance issued
by arbitral institutions (in the
context of administered arbitrations)
confirming that virtual hearings
were permitted under their rules.
Another set of concerns that
were frequently mentioned in the
interviews related to advocacy
and the ability to ‘read’ other
participants. Interviewees conceded
that the view of other participants’
faces can be better on screen than
in person, but stressed that it is
harder to capture body language
over video, as well as the overall
dynamics of a hearing that one
can only feel if everyone is in
the same room. For some, their
misgivings come from a sense of
counsel having less control of the
process in a virtual setting. Several
interviewees found that some
aspects of advocacy are tougher
when conducted remotely, such as
cross-examination. Notwithstanding
this, one common theme emerged:
A good advocate is a good advocate
in any environment, in-person or
remote, and the decision whether
to choose an in-person or a remote
hearing should be made on one
basis only—what is best for
the client.
How, then, do the parties who
are the ultimate stakeholders of the
arbitral process feel about virtual
hearings? Some interviewees in the
role of counsel reported that their
clients tended to be very resistant to
the idea of a virtual hearing, even if it
might lead to costs savings. This was
sometimes seen in cases involving
states or where the clients were
personally invested in the issues
Arbitration community
events and conferences
Counsel team meetings
Meetings with clients
Meetings with expert
and fact witnesses
Procedural conferences
and hearings
Substantive hearings
Chart 17: Post-COVID-19, what do you think your preferred format will
be for the following interactions?
0 20 40 60 80 100
45% 8% 48%
44%48%8%
25% 15% 60%
25% 15% 60%
20% 26% 54%
28% 16% 57%
In-person Virtual Mix of in-person and virtual
at stake. This may be due in part to
those clients wanting to have the
arbitration equivalent of ‘their day in
court’. A remote hearing feels less
like that. On the other hand, several
counsel reported that the majority
of their clients were delighted to
be able to keep the resolution of
their dispute on track and were
largely satisfied with the virtual
hearings in which they participated.
It seems these clients would also be
willing to entertain virtual settings
as a preference in the future, as
discussed further below. As one
counsel commented, ‘it will be hard
to explain to certain clients in the
future why an in-person hearing
is needed’.
Another interviewee offered the
most pragmatic summation of the
virtual experience, particularly in
the current context: ‘Sometimes,
good enough is good enough
and we should accept that we
cannot always operate in a perfect
paradigm scenario’.
Here to stay or a necessary stopgap
in extreme circumstances?
Hearings are not the only type of
interaction that arbitration users
have been experiencing in a virtual
environment. From meeting clients,
colleagues and witnesses to
attending seminars and conferences,
the arbitration community has had
to adapt to interacting online. Are
virtual settings for hearings and
other interactions here to stay even
when the pandemic (or similar
circumstances) does not form part
of the equation? Or is the current
prevalence of remote interactions
tolerated as a necessary stop-gap
until ‘normal’ service resumes?
A good advocate is a good
advocate in any environment—
in-person or remote—and the
decision whether to choose an
in-person or a remote hearing
should be made on one basis only:
what is best for the client
Only 8%of respondents
would prefer
substantive
hearings to be
held virtually
or procedural
hearings to be
held in-person
32%
26 White & Case
To explore this, we asked
respondents what their preferred
format for these kinds of interactions
is likely to be post-COVID-19—i.e.,
in ‘normal’ circumstances, without
factors such as social distancing
and travel restrictions. A choice of
three formats was offered for each
category of interaction: ‘in-person’,
‘virtual’, and ‘mix of in-person
and virtual’.
Interviewees confirmed they
deemed the mixed option to be
equivalent to every lawyer’s favourite
answer: ‘it depends’. As such, it
is unsurprising that a ‘mix of inperson
and virtual’ was the most
popular option for almost all types of
interactions. Respondents expressed
a strong preference for this mixed
format for ‘meetings with clients’
(60%), ‘meetings with expert and
fact witnesses’ (60%), ‘arbitration
community events and conferences’
(57%), and ‘counsel team meetings’
(54%). The only type of interaction
for which a different format was
narrowly preferred was ‘procedural
hearings and conferences’, where
48% of respondents would prefer
a wholly ‘virtual’ format, compared
to 45% preferring the mixed option.
For ‘substantive hearings’, the mixed
format was again the most popular
choice (48%), but the ‘in-person’
format was a very close second
Chart 18: What would make you more likely to choose a virtual rather than in-person format for
hearings post-COVID-19?
Time and cost savings compared to in-person hearings
Increased confidence and familiarity with virtual
hearings as a result of recent experience
More reliable and secure technology
More choice of good quality virtual hearing
centers and platform providers
Express provisions in arbitral rules and local arbitration laws
recognising the validity of virtual hearings
Standardised guidance and protocols for virtual hearings
Environmental sustainability
More harmonisation of ethical standards
Other 1%
61%
43%
37%
36%
29%
26%
24%
8%
Respondents were able to select up to three options
(45%). Only 8% of respondents
said they would prefer a purely
virtual setting for ‘substantive
hearings’. That relative lack of
enthusiasm may suggest that those
who prefer the mixed approach
might be more motivated by the
wish to preserve the ability to hold
an in-person hearing than by the
desire to keep open the option of a
virtual arrangement.
In a similar vein, while a mixed
format was comfortably the
preferred choice of respondents
for arbitration community events
and conferences, the vast majority
of interviewees highlighted the
importance of in-person contact.
They appreciate the fact that offering
access to an event online allows
a wide audience to participate,
including people who might not
otherwise have been able to do
so. However, attending an event
in person enhances the sense of
community and provides networking
opportunities that cannot be fully
replicated in a virtual setting. By
contrast, with regard to client
meetings and meetings with
expert and fact witnesses, most
interviewees agreed that an inperson
meeting is rarely required
beyond, perhaps, the first encounter.
They also reported, however, that
the choice of in-person or virtual
meetings tended to be largely driven
by the client’s preference. Some
counsel reported increased recourse
to routine videoconferences with
clients, rather than telephone calls,
giving them a kind of face-to-face
contact (even if virtual) that they
would not otherwise have had.
When discussing virtual hearings,
two key takeaways emerged from
From meetings with clients, colleagues and witnesses to
attending seminars and conferences, a mix of in-person
and virtual was the most popular option for almost all
types of interactions
272021 International Arbitration Survey
interviews. First, there appears to
be a growing expectation that virtual
hearings will become the default
option in the future for procedural
hearings and conferences. As
several interviewees pointed
out, it is difficult now to find a
plausible explanation for travelling,
sometimes to a different country,
to attend a procedural hearing.
Similarly, it is hard to say why
telephone calls rather than videoconferences
have been seen as
the standard alternative. As one
senior practitioner noted, it used to
be common practice for early case
management conferences to be held
in person, as the first opportunity
to ‘put a face to the dispute’ and
evaluate the dynamics. They felt
the advent of videoconferencing
technologies could achieve largely
the same result, a sentiment echoed
by others. Second, as discussed
further below, interviewees consider
it is less probable that wholly virtual
formats will become the prevalent
choice for substantive hearings. In
particular, they viewed the in-person
format as the dominant arrangement
for substantive hearings for cases
with complex factual backgrounds.
However, they predicted that
‘hybrid’ hearings (mix of virtual and
in-person) would continue to grow in
popularity as users gained increased
familiarity with the relevant
technology and the procedural
and logistical demands of remote
participation in a hearing.
We also asked what would make
respondents more likely to choose
a virtual rather than in-person
format for hearings post-COVID-19.
Respondents were again asked
to select up to three options from
a list of suggestions. ‘Time and
cost savings compared to inperson
hearings’ (61%) was the
most popular choice, followed by
‘increased confidence and familiarity
with virtual hearings as a result of
recent experience’ (43%). Technical
and practical factors, such as ‘more
reliable and secure technology’
and ‘more choice of good-quality
virtual hearing centres and platform
providers’ ranked third and fourth
with almost identical percentages
(37% and 36% respectively). Almost
a third of the respondents chose
‘express provisions in arbitral rules
and local arbitration laws recognising
the validity of virtual hearings’ (29%),
while ‘standardised guidance and
protocols for virtual hearings’ and
‘environmental sustainability’ were
selected by almost a quarter (26%
and 24% respectively).
These findings were reflected in
interviewees’ thoughts on the use
of technology and their predictions
for the future use of virtual hearings.
A vast majority of interviewees
emphasised the importance,
going forward, of developing best
practices and reliable technology.
They also stressed the need for
guidance from arbitral institutions in
administered arbitrations.
Before the COVID-19 pandemic,
the vast majority of users attending
hearings would have considered
the in-person format to be the
norm, particularly for substantive
hearings. The pandemic necessitated
the switch for many users to
virtual arrangements. Regardless
of whether users may prefer to
continue with remote forms of
participation or revert to the inperson
model where and when
possible, the experiences we have
now had with virtual hearings
have presented an opportunity to
evaluate and learn from their use. As
interviewees optimistically hoped,
perhaps this will also encourage
accelerated acceptance by the
arbitration community of technologydriven
change in the future.
There appears to be a growing expectation that
virtual hearings will become the default option for
procedural hearings
61%
Time and cost
savings was
cited by 61% of
respondents as a
reason to opt for
virtual rather than
in-person hearings
32%
28 White & Case
Sustainability and information
security: Opportunities
and challenges
Summary
	… Respondents show a willingness to adopt paperless practices,
such as production of documents in electronic rather than hardcopy
form; providing submissions, evidence and correspondence
in electronic format; and the use of electronic hearing bundles.
Many respondents would also welcome more ‘green’ guidance,
both from tribunals and in the form of soft law.
	… While the environmental benefits of remote participation rather
than in-person participation are recognised, this is not the primary
motivation behind the decision as to whether interactions should
be remote or in-person.
	… There appears to be increasing awareness of the need to
embrace ‘greener’ practices. However, the overall message
from respondents is that the reduction of environmental impact
is a welcome side-effect of their choices throughout the arbitral
process, rather than a priority in and of itself.
	… Even though users generally acknowledge data protection issues
and regulations may have an impact on the conduct of arbitrations,
the extent and full implications of that impact are not understood
by all. 34% of respondents predicted that data protection issues
and regulations have ‘limited impact at present but [this is] likely
to increase’.
	… Only around a quarter of respondents said they have ‘frequently’
or ‘always’ seen cybersecurity measures being put in place in their
international arbitrations.The majority (57%) encountered such
measures in less than half of their cases.
	… The IT security measures and tools most used or recommended
by respondents include ‘cloud-based platforms for sharing
electronic or electronically submitted data’; ‘limiting access to
prescribed individuals’; ‘data encryption’; and ‘access controls,
e.g., multi-factor authentication’. Almost half of the respondents
recommended the use of ‘secure/professional email addresses for
arbitrators rather than web-based email providers (i.e., no Gmail,
Yahoo, Hotmail, etc.)’.
	… Respondents appreciate being able to rely on specialist IT support
and systems to ensure robust cybersecurity protections are
in place.
	… Although there are encouraging signs that users are mindful
of cybersecurity issues and the need to address them, there is
nonetheless ample scope for more engagement on this front.
The increasing use of technology
also offers other opportunities
and challenges for international
arbitration. In particular, there has
been increased focus in recent
years on the environmental impact
of international arbitration, and
concerns surrounding cybersecurity
and data protection issues and how
to address them. We sought to
explore how each of these topics
are viewed and dealt with in practice
by users.
How ‘green’ are our arbitrations?
Reducing the environmental impact
of international arbitration is a
serious objective. But how ‘green’
are arbitration users willing to go
in practice? We aimed to shed
some light on this by presenting
respondents with a list of options
that are used, or potentially could be
used, to reduce the environmental
impact of international arbitration.
For each option, respondents were
asked to indicate whether they had
experience of using that measure.
They were also asked whether they
thought the measure should be
used. Respondents did not have to
have experience of using any given
option in order to express their view
of whether it should be used.
It may seem surprising that, as
detailed further below, even for
the measures that respondents
indicated they had used most, a
lesser percentage of respondents
in each case suggested that
they should be used. A possible
explanation for this came to light in
the course of the interviews. The
majority of interviewees on the topic
explained that they had mistakenly
understood that if they had used a
given measure, they did not then
need to specify whether they also
thought it should be used. While this
was not the case for all respondents,
34%
of respondents
expect that while
data protection
issues and
regulations have
limited impact
now, they are
likely to increase
in importance
in the future
32%
292021 International Arbitration Survey
Chart 19: What measures have you experienced being used, and/or
do you think should be used, to reduce the environmental impact
of international arbitration?
Experienced being used
Should be used
12%
40%
40%
30%
30%
39%
38%
40%
40%
27%
28%
39%
4%
15%
45%
49%
55%
53%
13%
51%
38%
37%
48%
2%
Adoption of soft law
instruments and guidance,
e.g.,The Pledge for Greener
Arbitrations
Carbon offsetting of flights
and printing
Conferences held as
virtual rather than
in-person events
Meetings with clients and
witnesses remotely/virtually
Production of documents
in electronic rather than
hard-copy form
Procedural conferences
held remotely/virtually
Specific directions
from arbitral tribunals in
relation to reducing
environmental impact
Submissions, evidence and
correspondence provided in
electronic format rather
than in hard-copy
Substantive hearings
held remotely/virtually
Witness evidence being
given remotely/virtually
Use of electronic
rather than hard-copy
hearing bundles
Other
Respondents were able to select up to three options
the findings from this enquiry
must be assessed in light of this
misunderstanding.
The most commonly used
measures included ‘production
of documents in electronic rather
than hard-copy form in document
production exercises’, providing
‘submissions, evidence and
correspondence in electronic format
rather than in hard copy’ and ‘use
of electronic rather than hard-copy
hearing bundles’. Each of these
options were chosen by around
half of the respondents (between
48% and 55% in each case). All
three options also ranked highly
as measures that respondents felt
should be used (between 38% and
40% in each case).
Interviewees favoured a move
towards more paperless practices
although, while they welcomed
the environmental benefit, they
often focused more on the cost
and efficiency of these measures.
They expressed surprise that it
should still be considered necessary
to print multiple copies of hearing
bundles, emphasising that it is
important to ‘think before you print’.
They preferred making the choice
themselves on whether or not
to print documents, rather than
expecting by default to be sent
paper copies. Some suggested that
going paperless should be an opt-out
rule, at least for disputes under a
certain monetary threshold.
Environmental sustainability was
confirmed as a factor that influenced
users’ choice of a virtual rather than
in-person interaction.45
‘Procedural
conferences held via telephone
conference, videoconference or
virtual hearing rooms’, ‘meetings with
clients and witnesses via telephone
conference’, ‘video-conference or
virtual hearing rooms rather than in
person’, ‘substantive hearings held
via video conference or virtual hearing
rooms’ and ‘witness evidence
being given via video conference
or virtual hearing rooms’ were all
measures that significant numbers
of respondents both reported
having experienced and thought
should be used. Indeed, ‘procedural
conferences held via telephone
conference, video-conference or
virtual hearing rooms’ was one of
the most commonly experienced
measures, identified by 53% of
respondents. However, although the
30 White & Case
environmental benefits of remote
participation were recognised,
interviews revealed that this was not
the primary motivation behind the
decision as to whether interactions
should be remote or in person.
‘Adoption of soft law instruments
and guidance, e.g.,The Pledge for
Greener Arbitrations’ emerged as
another measure that a large number
of respondents thought should be
used (40%). Reflecting that this fell
short of a majority view, opinions
expressed in interviews diverged.
Some interviewees praised the
importance of these initiatives. Others
were more sceptical, urging the
avoidance of over-regulation through
soft law. Interestingly, a number of
interviewees felt institutions being
more proactive in encouraging
reduction of environmental impact
would be more effective than soft
law. Several interviewees agreed that,
at least for administered arbitrations,
arbitral institutions could take the
lead by modifying their rules in order
to provide that written submissions
and supporting evidence should be
submitted in electronic form only,
unless otherwise ordered by the
tribunal. On that note, while very few
respondents have had experience
with ‘specific directions from arbitral
tribunals in relation to reducing
environmental impact’ (13%), they
would welcome more direct guidance
from arbitrators (40%).
There appears to be increasing
awareness of the need to embrace
‘greener’ practices. However, the
overall message from respondents is
that the reduction of environmental
impact is a welcome side-effect of
their choices throughout the arbitral
process rather than being a priority in
and of itself.
Data protection: How much do we
actually know?
We asked respondents to indicate
how much impact they consider
data protection issues (e.g.,
obligations under the EU General
Data Protection Regulation (GDPR))
have on the conduct of arbitrations.
We sought to identify both when
they thought data protection issues
would be of relevance to their
arbitrations, and the degree to
which they have an impact. They
were asked to select all options
that they deemed applicable from
the following: ‘depends on who
is involved in the arbitration’;
‘depends on the nature of the
dispute’; ‘limited impact’; ‘limited
impact at present but likely to
increase’; ‘negligible impact and
significant impact’.
Inevitably, options including the
word ‘depends’ were popular. Half
of the responses (51%) indicated
that it ‘depends on who is involved
in the arbitration’ and just under that
threshold (44%) that it ‘depends on
the nature of the dispute’.
With regard to the extent to
which data protection issues were
thought to have an impact, 34%
of respondents predicted that they
have ‘limited impact at present
but likely to increase’. Only 13%
felt that they have ‘significant
impact’, and 9% voted for negligible
impact. These results may indicate
a lack of familiarity with the reach
and applicability to international
arbitration of many data protection
regimes that are in place around
the world.
It is interesting to note that
although we only referred to the
GDPR as an indicative example
in the question, an overwhelming
number of interviewees, across
all regions and roles, expressly
referred to this EU legislation
when discussing data protection.
Interviewees explained that
they felt the GDPR in particular
had brought the issue of data
protection to the fore. As one
observer stated, the GDPR ‘put
the issue of accountability in
data processing operations in the
context of arbitration on the table’.
The large fines potentially payable
for non-compliance was thought
There is a general awareness of the potential financial
consequences of non-compliance, but the exact
implications of existing data protection regulations are
far from understood
Chart 20: How much impact do you consider data protection
issues (e.g., obligations under the EU General Data Protection
Regulation) have on the conduct of arbitrations?
Respondents were able to select up to three options
51%
44%
18%
34%
9%
13%
Depends on who is
involved in the
arbitration
Depends on the
nature of the dispute
Limited impact at
present but likely
to increase
Limited impact
Significant impact
Negligible impact
9%
Only 9% of our
respondents
felt that data
protection
regulations have
negligible impact
on the conduct
of arbitrations
32%
312021 International Arbitration Survey
to be a major factor in drawing
attention to data protection issues.
Most tellingly, the interviews
revealed a general awareness
of the potential financial
consequences of non-compliance,
but the exact implications of
existing data protection regulations
are far from understood. Very few
interviewees revealed extensive
understanding of the issues
and the measures required to
address them. The vast majority
of interviewees indicated that
they delegated all responsibility
for data protection to others in
their organisations (such as data
protection officers) where they
had the ability to do so. Most
confessed they had no direct
experience of grappling with
data protection issues in their
arbitrations. Others voiced their
dissatisfaction with what they saw
9%
18%
16%
57%
Chart 21: In your experience over the past three years,
how often have measures been put in place to protect the
confidentiality and security of electronic or electronically
submitted data in an international arbitration?
Always
Frequently (e.g. more than
half of the cases)
Sometimes (e.g. less than
half of the cases)
Never
as an unnecessary new layer of
complexity added to proceedings.
They felt that arbitration proceedings
should be exempted from the scope
of data protection regulations.
Ultimately, the prevailing theme
that emerged was that users
generally acknowledge there is
an impact. However, they find it
hard to define exactly what that
impact is and what it might mean
in practical terms both for them and
their arbitrations.
The cybersecurity conundrum
We asked respondents how
often, over the previous threeyear
period, they had experienced
measures being put in place in
international arbitrations to protect
the confidentiality and security of
electronic or electronically submitted
data. They were asked to choose
from one of four options: ‘always’,
‘frequently (i.e., more than half of
the cases)’, ‘sometimes (i.e., less
than half of the cases)’ or ‘never’.
The responses were mixed: Only
around a quarter of respondents
said they have ‘frequently’ (18%)
or ‘always’ (9%) seen cybersecurity
measures being put in place in
their international arbitrations.
The majority said they only
encountered such measures in
less than half of their cases (57%),
while a further 16% of respondents
said they have ‘never’ seen such
measures put in place.
A significant number of
interviewees pointed out that the
amount of consideration given to
cybersecurity in their arbitrations
depends in large part on the nature
of the dispute, and the interests and
identity of the parties. For example,
interviewees thought cybersecurity
was likely to be a significant concern
when a dispute involved a state or
public interest issue.
We then explored which specific
cybersecurity measures respondents
have experienced being used, or think
should be used. Respondents were
provided with a list of measures.
For each option, respondents were
asked to indicate whether they had
experience of using that measure.
They were also asked whether they
thought the measure should be used.
Respondents did not have to have
experience of using any given option
in order to express their view of
whether it should be used.46
The measure that respondents
reported using most was ‘cloudbased
platforms for sharing
electronic or electronically submitted
data’ (42%), suggesting that their
adoption has become a relatively
standard practice for many arbitration
users. Around a third of respondents
reported seeing the use of various
concrete IT security measures and
tools: ‘limiting access to prescribed
individuals’ (37%), ‘data encryption’
(33%) and ‘access controls, e.g.,
multi-factor authentication’ (32%).
Interviewees acknowledged that it
is obviously easier to ensure robust
cybersecurity protections are in place
when they can rely on dedicated IT
support and systems to facilitate
this. As numerous interviewees were
at pains to point out, they are not
themselves IT specialists. In some
cases, but not all, this support was
available from within an interviewee’s
The amount of consideration given to cybersecurity in
arbitrations depends in large part on the nature of the
dispute, and the interests and identity of the parties
27%
of respondents
have seen
cybersecurity
measures used
in more than half
of their cases
over the past
three years
32%
32 White & Case
organisation. Support from other
sources was also mentioned—22%
of respondents said they had used
‘platforms or technologies provided or
controlled by the arbitral institution’.
Interviewees confirmed that they
welcomed this development. It
appears that the provision by nonparties,
or even external vendors, of
support for cybersecurity measures
would help ensure a consistent level
of security and risk management for
all participants.
Measures involving discussion
amongst participants and guidance or
input from arbitrators, institutions and
other sources were less commonly
encountered. Most options of this
kind scored between 20% and 28%,
with only 10% of respondents having
experienced the ‘adoption of soft law
instruments and guidance’.
When it comes to measures that
respondents thought should be
used, almost half (47%) advised the
use of ‘secure/professional email
addresses for arbitrators rather than
web-based email providers (i.e., no
Gmail,Yahoo, Hotmail, etc.)’.This
was an area of concern flagged by
some counsel in interviews.While
they acknowledged this is a declining
practice, they voiced their discomfort
that some arbitrators continue to use
web-based email notwithstanding the
associated risks.
Other measures which garnered
significant support (each chosen
by between 36% and 44% of
respondents) as options that should
be used included: ‘access controls,
e.g., multi-factor authentication’,
‘platforms or technologies provided
or controlled by the arbitral
institution’, ‘guidance or protocols
from institutions’, ‘adoption of soft
law instruments and guidance, e.g.,
ICCA-NewYork City Bar-CPR Protocol
on Cybersecurity in International
Arbitration’, ‘cloud-based platforms
for sharing electronic or electronically
submitted data’, ‘data encryption’,
‘limiting access to prescribed
individuals’, ‘specific directions from
arbitral tribunals’ and ‘bespoke agreed
protocols between the parties’.  These
are encouraging signs that users are
mindful of cybersecurity issues and
the need to address them.There is
nonetheless ample scope for more
engagement on this front.
Chart 22: Which of the following measures have you experienced
being used, or do you think should be used, to protect the
confidentiality and security of electronic or electronically
submitted data in international arbitration?
Access controls,
e.g., multi-factor
authentication
Adoption of soft law
instruments and
guidance, e.g., ICCANew
York City Bar-CPR
Protocol on Cybersecurity
in International
Arbitration
Bespoke agreed protocols
between the parties
Cloud-based platforms
for sharing electronic
or electronically
submitted data
Data encryption
Guidance or protocols
from institutions
Limiting access to
prescribed individuals
Platforms or
technologies provided
or controlled by the
arbitral institution
Secure/Professional
email addresses for
arbitrators rather than
web-based email
providers (i.e., no Gmail,
Yahoo, Hotmail, etc.)
Specific directions
from arbitral tribunals
Other
Respondents were able to select up to three options
32%
44%
10%
40%
28%
36%
42%
38%
33%
39%
20%
41%
37%
38%
22%
40%
25%
23%
37%
47%
1%
3%
Experienced being used
Should be used
332021 International Arbitration Survey
Endnotes
1	 2015 International Arbitration Survey, p.5 and 2018 International Arbitration
Survey, p.5-6. In the 2018 survey, 97% of respondents chose arbitration
as their preferred method of resolving cross-border disputes, either as
a stand-alone method (48%) or in conjunction with ADR (49%).
2	 2015 International Arbitration Survey, p.5 (Chart 1); 2018 International Survey,
p.5 (Chart 1).
3	 2015 International Arbitration Survey, p.12 (Chart 8) and 2018 International
Arbitration Survey, p.10 (Chart 7).
4	 Zurich was also favoured by 4% of respondents, placing it just outside the
top ten, showing Switzerland’s continuing popularity as an international
arbitration centre.
5	 See further the discussion at p.8 below on reasons influencing choice of seat.
6	 55% of respondents expected Brexit would have no impact on the use of
London as a seat (2018 International Arbitration Survey, p.12 (Chart 9)).
7	 Our 2015 survey found that factors of convenience, such as the presence
in a seat of well regarded arbitration institutions, can increase the
attractiveness of the seat once the quality of its formal legal infrastructure
has reached a threshold of established quality (2015 International Arbitration
Survey, p.16 (Chart 12)).
8	 In addition to Hong Kong and Singapore, seats in Mainland China such as
Shanghai, Beijing and Shenzen were also nominated by more respondents
in this survey than in our previous surveys.
9	 These subgroups of respondents reflect the data collected from users who
have stated that they principally practise or operate in a particular region,
or in a multitude of regions that includes the particular region in which a
subgroup is based.
10	 2010 International Arbitration Survey, p.17.
11	 2018 International Arbitration Survey, p.11, Chart 8. See also 2015
International Arbitration Survey, p.14 (Chart 10) and 2010 International
Arbitration Survey, p.18 (Chart 14).
12	 GAFTA was included as an option because although it may administer
arbitrations under the GAFTA rules, GAFTA does not hold itself out as an
arbitral institution. However, arbitrations under the GAFTA rules could be
described as administered non-institutional arbitrations rather than being
purely ad hoc in the way non-administered arbitrations may be categorised.
13	 2006 International Arbitration Survey, p.12; 2010 International Arbitration
Survey, p.23 (Chart 17); 2015 International Arbitration Survey, p.17
(Chart 13); 2018 International Arbitration Survey, p.13 (Chart 12).
14	 The LMAA stands for the London Maritime Arbitrators Association.The
LMAATerms were listed in our survey questionnaire as an example of ad
hoc arbitration rules that may be chosen by users although, erroneously, an
inadvertent typographic error there referred to the LMAA as the London
Maritime Arbitration Association.The LMAA does not classify itself as
an arbitral institution and was not described as such in our questionnaire.
Notwithstanding this, it was nominated by a number of respondents in
response to the question asking them to name their preferred arbitral
institutions. In order to accurately reflect the answers given to this question
by these respondents, and to maintain the integrity of the survey data, we
have not excluded the nominations for the LMAA from the data set for this
question although it is not an arbitral institution.
15	 SIAC was chosen by 21% of respondents in 2015, 36% in 2018 and 49%
in this survey (2015 International Arbitration Survey, p.17 (Chart 13); 2018
International Arbitration Survey, p.13 (Chart 12)).
16	 HKIAC was chosen by 27% of respondents in 2018 and 44% in this survey
(2018 International Arbitration Survey, p.13 (Chart 12)).
17	 The same factors were highlighted by respondents in our 2015 International
Arbitration Survey (p.19 (Chart 15)) and 2018 International Arbitration Survey
(p.13-14 (Chart 13). See further below pp.11-12.
18	 See note 14 above regarding the nomination by respondents of the LMAA.
19	 Our 2015 and 2018 surveys noted a similar trend whereby interviewees
often showed preference for an arbitral institution in the region in which
they were based, alongside appreciating widely recognised global
institutions such as the ICC (2015 International Arbitration Survey, p.17
and 2018 International Arbitration Survey, p.13).
20	 2018 International Arbitration Survey, p.14.
21	 See also 2018 International Arbitration Survey, p.37-38 (Chart 40) where
respondents voiced an expectation for the future evolution of arbitration
to be driven by increased efficiency including through technology.
22	 See also the discussion at pp.18-19 below in relation to the role played by
both counsel and institutions or appointing authorities in promoting more
diverse candidates.
23	 The phrase ‘due process paranoia’ was first coined by a respondent to our
2015 survey (2015 International Arbitration Survey p.10).
24	 This view was also expressed by interviewees in our 2015 survey (2015
International Arbitration Survey, p.10).
25	 In our 2018 survey, for example, time and cost were named as the worst
characteristics of arbitration (2018 International Arbitration Survey, p.8),
and the wish for greater efficiency was cited as the main driver for the future
evolution of arbitration (2018 International Arbitration Survey, pp.37-38).
26	 See also the discussion on virtual hearings at pp.22-23 below.
27	 See also the discussion at pp.26-27 below on choice of hearing format
in the future.
28	 2018 International Arbitration Survey, pp.17-18.
29	 In 2018, only 24% of respondents agree that progress had been made
in this regard over the previous five years.
30	 See also the discussion at pp.18-19 below on initiatives to encourage
greater diversity.
31	 See 2018 International Arbitration Survey, p.19 (Chart 17). Arbitral
institutions were voted by nearly half of respondents (45%) to be the best
placed stakeholders to ensure greater diversity across tribunals.
32	 See 2018 International Arbitration Survey, p.18-19.
33	13% of respondents thought an advantage of virtual hearings is that
they may encourage greater diversity across tribunals (see further
Chart 15 below).
34	 See further pp.23-24 below.
35	 2018 International Arbitration Survey, p.32 (Chart 35).
36	 Id.
37	The following percentages correspond to ‘never’ and ‘rarely’:
‘videoconferencing’ (5% and 5%); ‘hearing room technologies’
(7% and 5%); ‘cloud-based storage’ (11% and 10%); ‘virtual hearing
rooms’ (14% and 12%).
38	 2018 International Arbitration Survey, p.33 (Chart 36).
39	 Id.
40	 2018 International Arbitration Survey, p.32 (Chart 35).
41	 Id.
42	 See 2018 International Survey, pp.32-33.
43	 2018 International Arbitration Survey, p.32. The ability of participants to
conduct hearings and meetings via videoconferencing or other means
of communication that do not require physical presence has been
acknowledged for some time as one of the most notable advantages of
technology that is already very much exploited in international arbitration.
See also Chart 13 above.
44	 See also p.19 above on interactions between tribunal members.
45	 ‘Less environmental impact than in-person hearings’ was identified by
34% of respondents as one of the main advantages of virtual hearings
(Chart 15); 24% of respondents said ‘environmental sustainability’ was a
factor that would make them more likely to choose a virtual rather than
in-person format for hearings (Chart 18).
46	 As with a previous question (see pp.28-29 and Chart 19), a significant
number of interviewees on the topic explained that they had mistakenly
understood that if they had used a given measure, they did not then need
to specify whether they also thought it should be used. While this was not
the case for all respondents, the findings from this enquiry should be read
in light of this misunderstanding.
47	 This includes, for example, academics, judges, representatives of trade
associations, third-party funders, government officials, expert witnesses,
economists, entrepreneurs, law students, business development experts,
and respondents who did not specify their position.
Appendices
352021 International Arbitration Survey
Methodology
T
he research for this study was
conducted from October 2020
to March 2021 by Dr Maria
Fanou,White & Case Postdoctoral
Research Fellow in International
Arbitration, School of International
Arbitration, Centre for Commercial
Law Studies, Queen Mary University
of London, together with Ms Norah
Gallagher, Deputy Director, School of
International Arbitration, Centre for
Commercial Law Studies, Queen Mary
University of London.
An external focus group composed
of senior in-house counsel, senior
representatives of arbitral institutions,
private practitioners and arbitrators
provided valuable feedback on the
draft questionnaire.
The research was conducted in two
phases: the first quantitative and the
second qualitative.
	… Phase 1: An online questionnaire
of 31 questions (of which 20
were substantive in nature) was
completed by 1218 respondents
between 8 October 2020 and
21 December 2020.The survey
sought the views of a wide variety
of stakeholders in international
arbitration. 60% of respondents
declared that they have been
personally involved in more than
five international arbitrations over
the past fiveyears.The respondent
group consisted of counsel (private
practitioners) (43%), full-time
arbitrators (15%), in-house counsel
(private sector) (7%), in-house
counsel (government or state
entity) (2%), ‘arbitrator and counsel
in approximately equal proportion’
(11%), arbitral institution staff
(5%), and others47
(17%).The
questionnaire responses were
analysed to produce the statistical
data presented in this report. A
reference to ‘respondents’ in the
report refers to those respondents
who answered that particular
question. Each of the substantive
questions was answered by more
than 75% of respondents. Due
to rounding up/down of individual
figures, the aggregate of the
percentages shown in some charts
may not equal 100%.
	… Phase 2: 198 video or telephone
interviews, ranging from ten to
110 minutes long, were conducted
between early November 2020 and
early March 2021.The qualitative
information gathered during the
interviews was used to supplement
the quantitative questionnaire data,
to nuance and further explain the
findings on particular issues covered
15%
11%
7%
5% 2%
43%
17%
Counsel (private practitioner)
Other
Arbitrator
Arbitrator and counsel
(in approximately equal proportion)
In-house counsel (private sector)
Arbitral institutional staff
In-house counsel
(government and state entity)
Chart 23: What is your primary role?
9%
7% 7%
43%
24%
10%
Africa
Asia-Pacific
Caribbean/Latin America
Europe
Middle East
North America
Respondents were able to select multiple options
Chart 24: In which region(s) do you principally
practise or operate?
in the survey. Interviewees were
based in 39 countries and 53 cities
across all continents (except
Antarctica).The pool of interviewees
reflected all categories across
the diverse respondent group.
Interviewees either contacted us
directly requesting an interview or
were contacted on the basis of their
consent in the questionnaire.
The following charts illustrate the
composition of the respondent pool
by: primary role; geographic region
of primary practise or operation;
primary industry; and experience in
international arbitration.
36 White & Case
Chart 25: Industry in which your organisation operates
35%
9%
8%
6%
5%
5%
5%
5%
4%
4%
3%
3%
3%
3%
2%
Legal
Construction/Engineering/ Infrastructure
Energy
Banking/Financial Services
Industrial/Manufacturing
Shipping/Maritime
Telecommunications/IT
Transportation
Insurance
Mining
Media/Entertainment
Pharmaceuticals/Life Sciences
Retail/Consumer
Other
Hospitality
Respondents were able to select multiple options
0 – 5 6 –10 11–20 20+
40%
23%
17%
20%
Chart 26: Over the past five years, approximately
how many international arbitrations have you
personally been involved in?
Chart 27: Over the past five years, approximately
how many international arbitrations has your
organisation been involved in?
0 –10 11–30 30+
33%
16%
51%
372021 International Arbitration Survey
School of International
Arbitration, Queen Mary
University of London
School of International
Arbitration
Centre for Commercial Law Studies
Queen Mary University of London
67–69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom
T +44 20 7882 8100
E ccls-arbitration@qmul.ac.uk
The School of International Arbitration (SIA)
was established in 1985 within the Centre
for Commercial Law Studies.The SIA was an
innovation at that time.This was because the
founders of the School believed international
dispute resolution should be a standalone
substantive subject rather than a side-discipline
of civil procedure, international or comparative
law.This is now widely accepted and has inspired
several institutions around the world to set up
similar programmes.
Today the School is acknowledged as the global leading postgraduate teaching
and research centre in international dispute resolution. It has become a centre
of excellence for research and teaching of international dispute resolution. It
attracts some of the best students with an interest in arbitration globally each
year. Students are provided both theoretical and practical training on all aspects of
international dispute resolution from advocacy & negotiation skills, to enforcement
of arbitral awards.
Since its establishment, more than 4,000 students from more than 110 countries
have graduated from the SIA. More than 60 PhD students have successfully
completed their doctoral studies. Many of our graduates are now successfully
practicing arbitration around the world as advocates, in-house counsel, academics
and arbitrators. Others serve international organisations, including UNCITRAL, the
World Bank and UNCTAD, or work for major arbitration institutions.
The SIA is located in Queen Mary’s postgraduate law centre in Lincoln’s Inn
Fields, the centre of legal London. Its key location facilitates support from the
international arbitration community for our students including professional events,
internships and mentoring. In addition to the London programme, the disputes
resolution LLM is taught in Paris as well as online for our Distance Learning
students.There is an active and growing alumni group across all of the programmes.
The School’s goals are:
Scholarship:To produce leading scholarship that advances the intellectual and
theoretical development of the discipline of international dispute resolution.
Education:To offer rigorous and innovative programmes for the global education
of future generations of international dispute resolution lawyers.
Professional engagement:To engage with international dispute resolution
practice and professional institutions and organisations.This includes our cocurricular
practitioner seminars and the popular annual SIA & Freshfields lecture.
Impact:To offer consulting services and advice to governments and nongovernmental
agencies that wish to develop a non-judicial settlement of dispute
mechanism, as well as training for lawyers in private practice, in-house lawyers,
judges, arbitrators and mediators.
For further information, please visit the School’s website:
www.arbitration.qmul.ac.uk.
38 White & Case
White & Case
International
Arbitration Practice
With more than 200 arbitration lawyers globally,
we have the largest International Arbitration
Practice in the world. Our lawyers are based
in the key arbitral centres of New York,
Washington, DC, London, Paris, Geneva,
Stockholm and Singapore, and we have
significant on-the-ground arbitration capability
in Mexico City, Miami, Houston, Los Angeles,
Madrid, Frankfurt, Warsaw, Moscow, Prague,
Hong Kong, Sydney and beyond.
We advise clients globally, spanning every jurisdiction, arbitral forum and
industry sector, and working under multiple laws and in diverse languages.
We have successfully handled thousands of arbitrations on behalf of
businesses and governments around the world. Our International Arbitration
Practice draws upon this depth of experience and our worldwide network
to approach dispute resolution with detailed knowledge and expertise not
only of substantive laws and issues, but also of the different arbitral regimes
and rules.
We have unparalleled insight borne from decades of experience. Our
experience in international arbitration is unsurpassed. We have extensive
knowledge of the range of commercial arbitration institutions around the world
(AAA/ICDR, ICC, LCIA, HKIAC, SCC, etc.) and are familiar with the procedures,
rules and personnel involved. Members of our team are leading individuals in
international arbitration and many hold prominent positions at key arbitration
institutions.
Our group’s collective experience brings with it unrivalled insight into
arbitrators, institutions, expert witnesses and opposing counsel, which can
make all the difference to the outcome of a dispute. We work with original
language documents, interview witnesses in their native language and
conduct proceedings in the language of choice. Every stage of the dispute
resolution process is given our utmost attention to provide the best options
in any given scenario
www.whitecase.com/law/practices/international-arbitration
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‘Draws from a formidable
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‘One client comments:
‘White & Case’s level of
expertise, both in terms of
subject matter and strategic
counseling, was simply
breathtaking’’
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Who’s Who Legal 2018 – 2020
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Global Arbitration Review 2015 – 2019
392021 International Arbitration Survey
Truly global
Americas
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Houston
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Mexico City
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40 White & Case
Acknowledgements
LON0320037-19
T
he School of International Arbitration of Queen Mary University
of London would like to thank White & Case LLP for its financial
support and substantive assistance, in particular Mona Wright and
Clare Connellan, both in London, who coordinated the project on behalf of
White & Case and provided invaluable input. We are also grateful for the
guidance of Sheena Sarkar (Paris), Jonathan Brierley (London), Fiona Candy
(Paris), Melody Chan (Hong Kong), Jorge Mattamouros (Houston), Alexandre
Mazuranic (Geneva), Damien Nyer (New York), Petr Polasek (Washington, DC),
Aditya Singh (Singapore), and the White & Case Business Development and
Creative Services teams in London, Paris, and Moscow.
We would further like to thank our external Focus Group for their generous
and valued feedback on the questionnaire and methodology, including
(in alphabetical order): Dr Mohamed S AbdelWahab (CRCICA, Zulficar Partners),
Olivier André (Freshfields, formerly CPR), Diana Bayzakova (TIAC),
Domenico di Pietro (BCLP), Artem Doudko (Osborne Clarke), Geraldine Fischer
(ICSID), Eric Franco (Engie Peru), Manuel Gonçalves (MG Advogados),
Professor Silvina González Napolitano (Faculty of Law, University of Buenos
Aires), Joe Liu (HKIAC), Mark Luz (Global Affairs Canada), Annette Magnusson
(Climate Change Counsel, formerly SCC), Luis M. Martinez (ICDR-AAA),
Kevin Nash (SIAC), Dr Emilia Onyema (SOAS), Maria Irene Perruccio
(Webuild Group SpA), Professor Peter Sester (CAM CCBC), Olasupo Shasore
SAN (Lagos Court of Arbitration),TulioToledo (PCA), and Dr Jacomjin van
Haersolte-van Hof (LCIA).
We are also grateful for the assistance of several organisations and
individuals who helped promote the questionnaire, in particular: Kluwer
Arbitration, Transnational Dispute Management/OGEMID, Global Arbitration
Review, Thomson Reuters, LexisNexis, Professor Stavros Brekoulakis, Dr
Rémy Gerbay and Professor Loukas Mistelis.
Most importantly, we would like to thank all stakeholders (private
practitioners, arbitrators, in-house counsel, academics, third-party funders,
government officials and other respondents) who generously gave their time in
completing the questionnaire and/or being interviewed.
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 partnerships,
companies and entities.
This publication is prepared for
the general information of our
clients and other interested
persons. It is not, and does not
attempt to be, comprehensive
in nature. Due to the general
nature of its content, it should
not be regarded as legal advice.
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