This article was featured in Jus Mundi‘s 2023 Arbitration Statistics Report. The report offers a comprehensive comparative analysis of the 2023 annual statistics published by some of the world’s leading arbitral institutions, including the ICC, LCIA, SIAC, HKIAC, VIAC, DIAC, SCC, NAI, PCA, and ICSID. Covering caseloads, procedural innovations, diversity efforts, financial stakes, and state involvement, the report highlights key trends shaping international arbitration and calls for greater transparency and consistency across the sector.
THE AUTHOR:
José Emilio Ruiz Pineda, Foreign Legal Expert
Amounts in Dispute
In 2023, the different arbitral institutions reported on the financial stakes in dispute. It is important to mention that the methodologies used to present the financial interest at stake differed from institution to institution. This section aims to gauge the size of disputes per institution. In this respect, the graph below represents a snapshot of the total amounts in dispute as reported by the ICC, SIAC, HKIAC, DIAC, SCC, NAI, and ICDR.
From the outset, it is interesting to note that most institutions reported their figures in USD. Hence, where an institution reported in EUR an exchange to USD will also be accompanied.
Under ICC arbitrations the total amount in dispute for new cases in 2023 was USD 53 billion. The ICC provided exhaustive figures regarding the amounts in dispute. The ICC stated that in 2023, the average amount in dispute was USD 65 million for new cases and USD 150 million for cases pending at the end of the year. In percentages, the ICC reported that 50 percent of cases filed and pending at the end of 2023 ranged between USD 1 million and USD 30 million, with 39.5 percent of cases not exceeding UDS 3 million.
The LCIA did not report on the total amount in dispute for 2023. However, the LCIA and NAI reported their amounts in dispute through graphs showing the percentage of cases that fell within certain monetary thresholds. Due to the similarity in the reporting style, they are presented together. The NAI provided their amounts in EUR, but they have been exchanged to USD. In 2023, for both LCIA and NAI arbitrations, 50 percent of the arbitrations were between USD 1,1 million and no higher than USD 5,6 million, with the other 50 percent of arbitrations exceeding USD 5,6 million and up to more than USD 168 million for LCIA arbitrations, and up to USD 56 million for NAI arbitrations.
The LCIA reported that claims over USD 20 million represented 29 percent of the total claims registered in 2023. Notably, the LCIA also reported on the type of relief sought, indicating that 49 percent of relief sought was monetary in nature, 44 percent was a combination of monetary relief and declaratory relief and/or specific performance, and 7 percent of relief sought was either declaratory relief or specific performance.
The SIAC reported a total amount of USD 11,90 billion for all new case filings and revealed that the average value in dispute amounted to USD 37,31 million. Interesting to note, the SIAC also reported that the highest sum in dispute for a single case was USD 5,48 billion. The HKIAC reported a total amount in dispute of USD 11,1 billion and an average amount of USD 60,1 million in dispute in HKIAC administered arbitrations. The DIAC reported a total amount in dispute of USD 1.497 billion, with an average of USD 4.6 million. Similarly to others, the DIAC also reported on the highest sum in dispute for a single case, which amounted to USD 298 million.
For its part, the VIAC reported a total amount in dispute that almost reached the EUR 2 billion mark, or about USD 2 billion. Interestingly, 51 percent of disputes, were reportedly under the EUR 500 thousand marker, or about USD 525 thousand. However, 22 percent of disputes surpassed the EUR 10 million, or approximately USD 10.5 million. The DIAC and VIAC also presented graphs with percentages, similar to the LCIA and NAI.
The SCC reported that the total amount in dispute under SCC arbitrations amounted to EUR 3,05 billion or USD 3,38 billion. The NAI reported that the total amount in dispute under NAI arbitrations amounted to EUR 4 billion or USD 4,44 billion. The ICDR reported on the total amount of claims and counterclaims which were quantified at USD 5 billion, interesting to note, the ICDR reported that the largest claim or counterclaim amounted to USD 600 million.
Finally, both the PCA and ICSID, did not report on the amounts in dispute under their administered caseload.
The institutions that provided the most details regarding the amounts in dispute were, in the first place, the ICC. In second place the LCIA, which also reported on the type of relief sought. In third place, the VIAC and NAI reported on percentages and number of cases within that percentage coupled, and on the total amount in dispute for the year. The rest of the institutions reported on the total amount in dispute for the totality of their arbitrations or provided a combination with the average amount in dispute for the year.
Length of Proceedings
The duration of the arbitration proceedings is an important consideration for the users and should be more widely reported. Surprisingly, however, only the ICC and the SCC reported on the duration of their arbitration proceedings, albeit in a different manner. In this respect, the ICC reported that in cases that concluded by way of a final award in 2023, the average duration was 27 months, and the median duration was 25 months. The SCC presented a graph that showed the percentage of cases that took a given range of months for a final award to be rendered. The report does not clarify whether the percentages refer to the year 2023 or else. Nonetheless, studying and adding the percentages, it can be noted that 65 percent of cases took less than 18 months for a final award to be rendered, while 22 percent of cases took between 12.1 months up to 24 months for a final award to be rendered. For the remaining 12 percent of cases, they took between 24.1 months to more than 36 months for a final award to be rendered. Notably, the VIAC reported that the average duration of cases that concluded in 2023 was 12 months.
The remaining arbitral institutions mentioned in this report did not provide information on the duration of the arbitration proceedings completed in 2023. Offering data on the average or median length of these proceedings would be valuable and might significantly influence users’ decisions when choosing an arbitral institution.
Solutions for the Need for Speed in Arbitration
Increasingly, institutions have developed procedures aimed at enhancing efficiency, reducing costs, and importantly, providing timely or emergency relief. These tools are regularly put to use; with this in mind, we turn to the annual reports and see how these procedural tools were used in 2023.
The ICC administered 189 arbitrations under its Expedited Procedure Provisions, setting a new record for the institution. Moreover, the ICC reported it received 28 Emergency Arbitrator applications, of which, 27 resulted in Emergency Arbitrator orders, with 3 fully granting the emergency measures, 9 partially granted the application, and 13 rejected the application, including 1 order were the application was found inadmissible. In addition, emergency arbitrators rendered 1 consent order and 1 termination order.
The LCIA provides for the Expedited Formation of the Arbitral Tribunal and/or urgent relief from an Emergency Arbitrator. In this respect, the LCIA received a total of 15 Expedited Formation applications, of which, 12 were rejected, and 3 were granted. Regarding Emergency Arbitrator the LCIA received a total of 6 applications, 5 were rejected and 1 was granted.
The SIAC received 94 requests for its Expedited Procedure services, out of which 41 requests were accepted. Notably, the SIAC received 11 applications to appoint an Emergency Arbitrator, all of which were accepted. Regarding, its Early Dismissal of Claims and Defences the SIAC received 9 applications, of which, 3 were allowed to proceed, 4 were rejected, 1 application was pending, and 1 application was withdrawn. Of the 3 applications that were allowed to proceed, 1 was granted, 1 was rejected, and 1 was withdrawn.
The HKIAC received a total of 24 Expedited Procedure applications under its Rules, of which, 15 were granted, and 9 were rejected. Moreover, the HKIAC Emergency Arbitrator procedure received a total of 3 applications. Finally, the HKIAC received 5 applications for its Early Determination Procedure, of which, 2 were rejected, 2 were granted, and 1 application was pending at the end of 2023.
The DIAC revealed that it received 2 applications for the appointment of an Emergency Arbitrator. Interestingly, under the DIAC Rules, the application can be made on an ex parte basis, which was the case for 1 of the 2 applications received. In both cases, the Arbitration Court was prima facie satisfied, and the Emergency Arbitrators ultimately awarded emergency interim relief.
The VIAC only reported that 11 percent of their proceedings were expedited. For its part, the SCC reported that four Emergency Arbitrator proceedings were commenced in 2023, most notably, in all cases the emergency arbitrator was appointed within 24 hours, and decisions were rendered on average after 5,25 days, a statistic only the SCC provided. The NAI reported that 15 percent of its procedures were Summary Arbitral Proceedings, these types of proceedings are comparable to summary proceedings before a Dutch court and are rendered in the form of an award.
The ICDR reported that it received 160 applications for Emergency Measure of Protection under its different sets of rules. Of these, 101 were presented under the ICDR International Rules, 55 under the AAA Commercial Rules, 3 under the ICDR Canada Rules, and 1 under the Independent Film & Television Alliance Rules.
Further, the ICDR provided a breakdown of the 159 applications that were resolved. Of note is that it did not indicate under which set of rules these decisions were made. Nonetheless, 73 applications for emergency relief were granted either in part or in full, 41 applications for emergency relief were denied, in 24 instances the parties settled, and 21 applications were withdrawn.
The PCA most recently approved its PCA Optional Protocols on Expedited Procedures, with an official publication date pending, the arbitration market awaits this new development. Nonetheless, a substantial percentage of PCA arbitrations are conducted under the arbitration rules of the United Nations Commission on International Trade Law (“UNCITRAL”), which include an expedited procedure under the UNCITRAL Expedited Arbitration Rules of 2021. It remains to be seen how this will be implemented in practice as this is an opt-in procedure. Similarly, under the 2022 ICSID arbitration rules an expedited procedure is envisaged; however, parties have to opt-in for it to apply. Thus far, information on proceedings being administered under these set of expedited rules has not been reported.
Involvement of States and State-owned Entities
It goes without saying that both PCA and ICSID proceedings involve states and state-owned entities (“SOEs”) due to their specialized nature. As a consequence, their annual reports do not quantify the number of states and SOEs involved. However, such disclosure would also be welcomed.
As a result, the focus in this section shifts to arbitral institutions that have historically been commercially focused. Naturally, these institutions are also aiming to draw in more arbitration cases involving states and SOEs.
With this backdrop in mind, the ICC and LCIA disclosed figures on the arbitrations that involved states and SOEs. The ICC reported that 16 percent of new cases involved a state or state entity, including, most notably, 45 state or state-owned parties from Central and South-East Europe, 37 parties from Latin America and the Caribbean, and 30 parties from Sub-Saharan Africa. Moreover, the ICC also reported that 25 percent of Emergency Arbitrator applications involved a state or state entity.
The LCIA reported that 11 percent of its cases in 2023 involved SOEs. Moreover, states and SOEs hailed from 20 different nations, although the LCIA did not report to which nations this referred, perhaps for confidentiality reasons.
Finally, it would be valuable if all of the leading arbitral institutions, like the ICC and LCIA, provided data on the number of states and SOEs involved in disputes under their administration.
Concluding Remarks
Throughout this series, it has become increasingly clear that the arbitration market benefits significantly from the annual reports published by the leading arbitral institutions. These reports promote transparency and accountability across the arbitral institutions. The annual reports also help in promoting and creating awareness of the crucial efforts, for example, with respect to gender diversity and the inclusion of arbitrators with a diverse range of backgrounds, efforts that make international arbitration a more equitable and inclusive practice, which one may also hope helps address some of the warranted and also the unwarranted criticism that arbitration as a practice often receives.
The annual reports are also useful as they reflect the results of procedural innovations, such as the different forms of expedited solutions promoted by the different institutions’ arbitration rules.
Taking stock of the repots in terms of levels of disclosure, the annual report produced by the ICC stands out as the most comprehensive and exhaustive. The LCIA and the SIAC are tied for second, closely followed by the DIAC, which in turn is followed by the ICSID and the PCA. The latter two are perhaps limited due to the more sensitive context, given the number of states involved. It is worth noting, that both the ICC and ICDR, creatively, presented their caseload statistics in user-friendly infographics. For the rest of the arbitral institutions, an increase in the level of disclosure and reporting is welcomed to promote a more standardised level of disclosure and raise awareness of their offerings, which is the inspiration behind this report.
To conclude, the outlook for international arbitration remains positive. As arbitral institutions increasingly incorporate creativity and innovation into their rules, they raise the bar for other institutions. It is expected that the market for arbitration will only continue to grow, and the competition to attract users will only become more sophisticated from one institution to another.
ABOUT THE AUTHOR
José Emilio Ruiz Pineda is a Honduran-qualified lawyer that specializes in international commercial (and investment) arbitration. He frequently advises and has participated in arbitrations under various arbitration rules (including the ICC Rules, SIAC Rules, the UNCITRAL Rules). Emilio holds an LL.M. in International Arbitration and Business Law from Erasmus University Rotterdam.
Discover more insights into the global trends shaping institutional arbitration in 2023 by exploring the full Arbitration Statistics Report now.
* The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
* The arbitral institutions have been selected from the perspective of the author, a native Spanish and English-speaking Amsterdam-based international arbitration practitioner.
