The London Court of International Arbitration (the “LCIA“) has recently published its Casework Report for 2017 which contains statistics on its performance last year. The report makes for an interesting comparison with the 2016 report. This article examines the LCIA’s 2017 figures, making comparisons also with those of the International Chamber of Commerce (the “ICC“), where appropriate.
The LCIA received 303 referrals in 2016, 253 of which fell under the LCIA rules (LCIA acting as appointing authority or providing administrative services in the others). Additionally, 8 further requests were made to the LCIA for mediation and other forms of alternative dispute resolution. These numbers were down from the LCIA’s record year of 326 referrals in 2015.
There was also a reduced caseload in 2017 compared to the previous year’s total, with 298 total referrals. Of these, 285 were for arbitration (233 falling under the LCIA rules), whilst there were 13 requests for mediation and other forms of alternative dispute resolution. Despite the reduced caseload, there is an overall upward trend in referrals over the last decade. In 2007, the LCIA received only 128 arbitration referrals, 101 of which under the LCIA rules. The ICC meanwhile reported 810 case referrals for 2017, which also represents a fall from its record high of 966 cases in 2016.
The industry sectors for arbitration in the LCIA followed a somewhat similar trend in both 2016 and 2017. In both years, Banking and Finance and Energy and Resources industries led the way and comprised over 20% of the caseload (24% each). The largest departure from the 2016 figures was seen in a fall in arbitration in the Construction and Infrastructure sector, which fell from 16.2% to 7%. However, arbitrations from the Professional Services industry more than doubled to 11%, up from 5.4% in 2016. However, the LCIA has put these changes down to annual fluctuations more than long term trends.
The LCIA again saw a diverse range of party nationalities in 2017, with over 80% of the parties coming from outside the United Kingdom. The United Kingdom did lead the way however, and represented 19.3% of all arbitral parties in 2017, rising from 16.2% in 2016. Other notable increases can be seen in Central and Eastern Europe which rose from 1.6% to 4.9%, and also the United States which almost doubled from 5.7% to 10.1%. This is balanced out by some decreases; the biggest of these was seen in parties from Asia falling from 14.8% to 8.8%. Lower percentages were also seen in the Middle East and North African regions, and Central and South America.
The LCIA’s figures for 2017 show a positive move towards more diversity. In terms of nationality, whilst the majority of arbitrators are still British, the LCIA Court selected fewer British arbitrators this year than previously; the LCIA Court selected non-British arbitrators 52% of the time, compared with 26% and 20% where nominations were made by the parties and co-arbitrators respectively. In 2016 the LCIA Court only selected non-British arbitrators 19.8% of the time, whilst the parties and co-arbitrator figures were at 10.5% and 9% respectively. The 2017 figures make for positive reading in this respect.
In terms of gender diversity, the LCIA continued on a positive path in 2017. Although the number of female arbitrators selected has fallen from 102 to 97, this makes up a larger percentage of the whole (24%) than in 2016 (20.6%). This represents an overall 3% increase from 2016 figures, with the majority still being selected by the LCIA Court, although more were also selected by both parties and co-arbitrators. Similarly, the ICC also declared a higher level of female arbitrators in 2017 with a rise from 209 to 249. However, the ICC’s female arbitrators make up a lesser percentage of total arbitrators when compared with the LCIA, sitting only at 16.7%.
Relief sought and sums in play
There was little change in terms of the most popular relief sought; monetary relief on its own was sought in 64% of cases in 2017, and a further 28% involving monetary relief coupled with declaratory relief/specific performance. Only 8% of the requests filed involved no request for monetary relief. In comparison, in 2016 29% of requests filed sought declaratory relief or specific performance, and in 67.6% of those cases the claimant also sought monetary relief.
In terms of the sums claimed, there was a rise in claims valued between USD 20-50 million, from 9.7% to 12%, which represented the biggest shift from otherwise similar percentages in 2016. 24% of the cases referred to the LCIA in 2017 had a value of less than USD 1 million.
In 2017, tribunal secretary appointments were declared in only 38 LCIA arbitrations, with 12 of the tribunal secretaries being female.
We note that the LCIA recently published revised guidance for arbitrators on tribunal secretaries in its October 2017 version of its Notes to Arbitrators. The tribunal secretary’s role is to help manage the tribunal’s workload and improve efficiency. However, under no circumstances is the tribunal permitted to delegate its fundamental decision-making function. Some examples of the changes made in the revised guidance are that tribunals must seek party consent on proposed roles for the secretary and any payment the secretary is to receive. A rise in declarations concerning tribunal secretary appointments is expected in the coming years due to the amendment to the notes.
The statistics show that English law and London as an arbitral seat continue to be popular in LCIA arbitrations, 85% and 94% respectively. However, note that the percentage relating to London as an arbitral seat includes arbitrations where London was the seat by default, absent party choice or tribunal determination designating another seat (LCIA Rules, Article 16.2).
Finally, in terms of expedited formation of tribunal and appointment of emergency arbitrator, there were a total of 16 applications for expedited appointment, of which four were granted, 11 rejected and one superseded. The LCIA received only one request for an emergency arbitrator appointment in 2017, which was rejected by the LCIA Court.