2019 STATISTICS SHOW A “RECORD YEAR” FOR THE ICC

The ICC has recently published statistics for 2019, hailing it as a “record year”. 2019 saw a total of 869 cases registered (of which 851 were under the ICC Arbitration Rules). This is the second highest number of cases registered in the ICC’s history, with only 2016 having a larger caseload (966 cases). The statistics also show improved numbers for the gender and geographical diversity of both users and arbitrators. Overall, these numbers demonstrate ICC’s global reach and position as one of the leading arbitral institutions for complex, high-value disputes.

Caseload

The ICC had 1,694 cases pending in 2019. These cases had an aggregate value of $230 billion and an average value in dispute of $140 million (an increase of $9 million on the 2018 average). Over 50% of the newly-registered cases in 2019 and pending cases at the end of 2019 had an amount in dispute between $1 million and $21 million, while 36% of newly-registered cases had an amount not exceeding $2 million. The cases filed in 2019 came from a wide range of sectors, although the construction (211) and energy (140) sectors generated the largest number of cases, accounting (as in previous years) for approximately 40% of the ICC Arbitration caseload.

Arbitrator diversity: Gender, age and nationality

1476 arbitrator appointments and confirmations took place in 2019 comprising 972 individuals. Of those 1476 appointments or confirmations, 312 were of female arbitrators (21%). Of those female arbitrators (rounded to the nearest %), 43% were appointed by the ICC, 42% were party nominated and 14% were nominated as president by their co-arbitrators. This represents an increase on the total percentage of female arbitrators appointed in 2018, which saw 273 female arbitrators appointed (18.4%). Women made up 33% of the sole arbitrators appointed, compared to 24% of presidents and 15% of co-arbitrators.

In 2019, the average age of arbitrators confirmed or appointed by the ICC Court was 56.7 years. 34% of arbitrators were below 50, with arbitrators appointed by the ICC Court being approximately five years younger than the average (51.5 years). The average age of women acting as arbitrators was 50.5 years, with the average age of female arbitrators being appointed by the ICC Court being 46.7 years.

The arbitrators appointed came from 89 different jurisdictions, the highest number to date for the ICC and reflecting the efforts of the ICC Court towards increased diversity. However, as with previous years, some jurisdictions had greater representation than others. In 2019, 258 arbitrators were British (17.5%), 147 arbitrators were Swiss (10%), 116 arbitrators were French (7.9%), 107 arbitrators were American (7.3%), 87 arbitrators were German (5.9%) and 62 arbitrators were Brazilian (4.2%).  The number of Indian arbitrators increased from 16 arbitrators in 2018 to 34 to 2019, reflecting the significant increase in Indian parties resorting to arbitration (from 47 parties in 2018 to 147 parties in 2019).

Global reach

The 2,498 parties involved in cases filed in 2019 came from 147 countries and independent territories worldwide, breaking the previous record of 142 countries in 2017. The USA retained its first position in terms of the geographical origins of ICC users, with its share dropping slightly from 210 cases (2018) to 196 (2019), representing 8 percent of all parties worldwide. Reflecting a slight increase from previous years, European parties represented close to 40 percent of the total parties, with France taking the lead (126) followed by Germany (97), Spain (87), Italy (84) and the United Kingdom (78).

The number of Indian parties more than tripled from 47 (2018) to 147 (2019), taking India to the second position in terms of the overall number of parties worldwide. The case management office in Singapore catered to almost half of the cases involving Indian parties. The number of Chinese parties also almost doubled from 59 (2018) to 105 (2019) and for the first time, two parties from Myanmar were involved in a case before the ICC. Africa represented 7.5 percent of all parties, with 188 parties compared to 122 parties in the previous year. Latin America and the Caribbean also registered a 14% increase in the number of parties from 339 (2018) to 386 (2019). Brazil (where the ICC established a case management team in October 2017) was third in the nationality rankings behind the USA and India.

The ICC has also witnessed a significant rise in the number of cases involving States or State entities. In 2019, the new cases involving a state or state entity rose to over 20% from 15% in 2016. Two of the 212 new claims were filed under a Bilateral Investment Treaty.

2019 also saw the highest number of different seats selected for ICC arbitrations (116 cities in 62 countries). London remained the most popular seat of arbitration with 114 cases, followed by Paris (106) and Geneva (53). Singapore was the most preferred seat in Asia, ranking fourth (30). Whilst still a modest total, 2019 also saw a significant statistical increase in sub-Saharan African-seated cases (11) as compared to 2018 (6).

Duration, expedited and emergency procedures

The average duration of proceedings in cases that reached a final award was 26 months, with a median of 22 months, a two month reduction compared to 2018’s duration figures. The ICC’s emergency arbitrator (EA) procedure has been applied 120 times since its introduction in 2012. In 2019, 23 EA applications were filed, with half of them relating to the construction/engineering and energy sectors.

The statistics illustrate the impact of the introduction of the Expedited Procedure Provisions (EPP) in the 2017 ICC Rules of Arbitration (2017 Rules). The EPP applies automatically (unless the parties explicitly opt out) in cases where the arbitration agreement was concluded after 1 March 2017 and the amount in dispute does not exceed $2 million. At the end of 2019, 146 cases have been or are being conducted under the EPP rules. In these cases, the ICC Court has overwhelmingly decided to appoint a sole arbitrator (in 82% of the cases) over a three member arbitral tribunal (in 18% of the cases). Most awards in EPP arbitrations (37 out of 50) have been rendered within the six-month time limit.

Comment 

2019 marked the celebration of the ICC’s centenary and also witnessed the ICC International Court of Arbitration’s 25,000^th case. It has been hailed as a “record year” by the ICC on many metrics, including the number of cases registered and for the diversity of its users and arbitrators. The ICC has also highlighted a number of other important initiatives it has undertaken during the year, including the launch of its ICC DRS App, its Emergency Arbitrator Proceedings report (an empirical study on the first 90 ICC EA cases) and the publication of Resolving Climate Change-Related Disputes through Arbitration and ADR, which offers a practical toolkit to equip users and practitioners in relation to a potentially significant area of disputes in future. 2019 also witnessed the ICC becoming an authorised institution under the Mainland China and Hong Kong arrangement on interim relief (discussed in our blog post here) and a registered institution in Sao Paulo.

Users and practitioners will await the release of the ICC’s 2020 statistics with interest, as they will the statistics of other arbitral institutions. The ICC has taken significant steps to ensure business continuity and dispute resolution efficacy during the COVID-19 pandemic (discussed in our blog post here). However, the impact of the COVID-19 pandemic on international arbitration in general, and the ICC in particular, remains to be seen.

For more information, please contact Craig Tevendale, Partner, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.