Introduction
On 15 July 2020, the International Chamber of Commerce (the “ICC”) published its annual Dispute Resolution Statistics Report for 2019 (the “Report”), setting out detailed figures regarding the cases administered by the organisation’s International Court of Arbitration (the “ICC Court”) and its International Centre for ADR. The Report (available to download here) analyses the ICC’s caseload using a variety of measures, including the number of cases registered, the nationality of parties, the constitution of arbitral tribunals and related challenges, the applicable law of ICC arbitrations, the seat of arbitrations and the subject and size of the disputes.
In this article, we highlight the key trends. This follows our analysis of the annual reports published by other arbitral institutions earlier in the year. For our Law-Now on SIAC’s Annual Report 2019, please click here, and on the LCIA’s Annual Casework Report 2019, please click here.
In summary, cases are up, reflecting a trend among most of the leading arbitral institutions; London, English law and the UK retain the top spots for venue, choice of law and nationality of arbitrator respectively; Chinese and Indian parties jump up the tables, but with only a corresponding increase in the popularity of Indian nationality arbitrators. The ICC is improving its record on diversity of nationalities and gender of arbitrators, but still lags behind a number of other institutions on gender.
Number of cases
The number of new cases referred to the ICC in 2019 is the second highest figure for the organisation to date. Following a record figure of 966 cases in 2016, 869 new cases were registered in 2019, 851 of which were under the ICC Rules of Arbitration and 18 under the ICC Appointing Authority Rules. Although only a modest increase from the 842 new cases administered by the ICC Court in 2018, the rise reflects a trend of increasing referrals to arbitration across a number of leading institutions. As noted in our Law-Now on the LCIA’s Annual Casework Report 2019, the LCIA, SIAC, and HKIAC all reported record numbers of referrals in 2019.
Parties
147 nationalities were represented in parties in ICC arbitrations, breaking the organisation’s previous record of 142 in 2017. US parties still topped the list, with 196 parties (representing 8% of all parties worldwide), followed by India (147 parties, discussed further below), Brazil (133 cases) and France (126 cases).
China
In fifth place was China, reflecting the increasing involvement of Chinese parties in international arbitration. China climbed from eleventh place in the previous year (59 parties), to fifth in 2019 (105 parties). Possible reasons cited by the ICC for this growth include the Belt and Road Commission, established by the ICC Court in 2018 to drive the development of the ICC’s existing procedures and infrastructure falling under China’s Belt and Road Initiative. In addition, the ICC is now a confirmed authorised institution under the China-Hong Kong Arrangement on interim relief, which allows parties to a Hong Kong seated arbitration to obtain interim measures from Chinese courts that will be enforceable in Mainland China.
India
The most growth in terms of parties in an ICC arbitration, came from India. According to the latest statistics, the number of Indian parties trebled from 47 in 2018 to 147 in 2019. India now ranks second on the overall number of parties worldwide, although the authors understand there may be some anomalous cases distorting this year’s figures.
Nationality of arbitrators, seat of arbitration and choice of law
The UK topped the rankings both in terms of nationality of arbitrators and venue of arbitration. 258 arbitrators with UK nationality were appointed (17.5%). As in previous years, other top nationalities were Swiss (147 arbitrators), French (116 arbitrators), US (107 arbitrators), German (87 arbitrators) and Brazilian (62 arbitrators).
As in 2018 the most popular choice of law was English (16% of cases overall), followed by Swiss (12% of cases), the laws of US states and French law (each accounting for 10% of cases). As 2019 has seen growth in the number of Indian parties, the number of Indian arbitrators also increased from 16 in 2018 to 34 arbitrators in 2019, and now account for 40% of all arbitrators from South and East Asia.
That trend can be seen elsewhere. The most favoured venue was London with 114 cases, followed by Paris with 106, Geneva with 53, Singapore with 32 and New York with 27. Those “chart-topping” venues, coupled with other statistics show strong correlation between venue, choice of law and nationality of arbitrators.
Challenges
In 2019, the number of challenges filed in ICC arbitrations, whether based on an alleged lack of impartiality, independence or otherwise, amounted to 52, of which six were accepted by the ICC Court. This is an increase from the number of challenges in 2018 when 45 challenges were brought, seven of which were accepted by the ICC Court. However, the picture is largely consistent with the LCIA, SIAC and HKIA who also reported a higher number of challenges but with continuing low levels of success.
Diversity
One of the highlights of the Report is in diversity. 2019 saw 1,476 appointments and confirmations of arbitrators, which led to the following new records for the ICC:
- First, the 972 individuals appointed or confirmed came from 89 countries. That is the highest number of jurisdictions to date, which the ICC suggest is down to active efforts of the ICC Court to increase diversity among arbitral tribunals. New nationalities represented included Azerbaijan, Botswana, Haiti, Malawi, the Palestinian authority, and St Kitts and Nevis.
- Second, the overall number of female arbitrator appointments in ICC arbitrations rose to 312 (from 273 appointments in 2018), representing 21% of all appointments/confirmations (as compared with 18.4% in 2018). Further, the number of women acting as president has increased to 30% over the last three years.
Although a record for the ICC, there is still work to be done. The gender diversity figures of the ICC remain below a number of other arbitral institutions. In 2019:
- The number of female arbitrator appointments in LCIA arbitrations increased to 29%;
- The LCIA Court appointed 48% of roles to female arbitrators;
- SIAC appointed female arbitrators in 36.5% of cases; and
- HKIAC appointed female arbitrators in 20.5% of all cases.
