As many of you will be aware, the London Court of International Arbitration (LCIA) is marking the 125th anniversary of the formal inauguration of ‘The City of London Chamber of Arbitration’ (in 1892), which evolved into the institution we know so well today. This week, as a further demonstration of the LCIA’s commitment to increased transparency, a red-hot topic in international arbitration, the LCIA has released a database of 32 anonymised challenge decisions from the period 2010-17.
The published digests contain anonymised excerpts of the decisions, and are intended to provide a useful resource for users, counsel, and arbitrators, giving guidance on standards of conduct and providing a greater understanding of the reasoning applied by the LCIA Court. It is understood that the challenge decision database will be updated periodically when new decisions are issued. It will also be interesting to watch whether the challenge decision summaries published in 2011 in respect of the period 1996-2010 will be added to the publicly available database in due course.
The LCIA points to some interesting trends which emerge from the challenge decisions:
- challenges are rare in LCIA arbitrations, and rarely succeed—during the period covered, more than 1,600 cases were registered. Challenges were heard in less than 2% of cases, and only one fifth were successful
- the challenge process is robust—following a challenge, the other parties and the challenged arbitrator are given an opportunity to provide submissions in response. The LCIA will appoint members of the court as decision-makers. Following a hearing and/or further written submissions, the decision-makers then provide a robust and closely-reasoned decision
- the challenge process is efficient—it takes on average only 27 days to provide a reasoned decision, with more than half of all decisions provided in less than 14 days
- grounds for challenge are diverse, with a focus on procedural matters—in half of all challenge decisions, the challenging party presented a procedural decision contrary to their interests as evidence of bias
We will be considering the data in greater detail for Lexis®PSL Arbitration in due course.
The forthcoming release of the database was noted by Jacomijn van Haersolte-van Hof, Director General of the LCIA, at a packed, fun and fitting 125th anniversary celebration held at Somerset House last week and should be viewed in the context of other notable, recent LCIA initiatives:
- an on-going commitment to improving diversity in arbitration and, in particular in LCIA arbitration proceedings
- in October 2017, the LCIA updated its costs and duration data analysis with the assistance of an independent third party (The Brattle Group), having been the first leading arbitral institution to provide such transparency. The LCIA has also called upon other institutions to provide their data to Brattle with a view to ensuring a level playing field for data comparisons
- also in October 2017, the amendments to the LCIA Notes for Arbitrators in respect of the role of tribunal secretaries
- a January 2018 guidance note on the use of experts in international arbitration, and
- also in January 2018, the first in a series of perspectives from a range of commentators from the LCIA community—Audley Sheppard QC, Chairman of the LCIA Board, has contributed an interesting piece on ‘nudge theory’
So, what’s next for the institution?
It’s been nearly 4 years since the revised LCIA Arbitration Rules entered into force—another round of consultation has already been announced for this year’s symposia at Tylney Hall, which is not surprising given the speed of change in the field. The LCIA’s annual statistics will also be published in the coming months and are likely to reflect the institution’s steady and strong caseload, but it remains a key objective of the LCIA, as demonstrated by its Chairman’s recently published perspective, to ensure the continued inclusion of LCIA arbitration clauses in commercial contracts, particularly in light of strong competition from other leading institutions, for example the HKIAC (which is reported to have enjoyed a bumper 2017 due, in part, to the influence of Belt & Road disputes). For many people, even though international arbitration at the seat comes in many and various forms, London arbitration and the LCIA go hand-in-hand and the institution has an important role to play in helping maintain and develop London’s reputation as a preeminent seat of arbitration post-Brexit. Whatever may be on the horizon, the recent initiatives demonstrate the LCIA engaging with the arbitration community and its users to help ensure its continued success.
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