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Arbitration remains a popular and prominent force for resolving commercial disputes. Indeed, it is the mechanism of choice across a wide range of sectors and jurisdictions thanks to its confidentiality, flexibility, speed, enforceability and potential cost savings, among other reasons. Parties, when entering into a commercial contract, should draft an appropriate dispute resolution mechanism. Clear arbitration provisions can benefit all parties. The language should set out the choice of arbitral rules, the seat of the arbitration and the number of arbitrators, among other aspects.

UNITED STATES

Three Crowns

“In the US, arbitration continues to be the dispute resolution mechanism of choice across a wide range of business sectors. The number of new arbitration cases filed with the International Centre for Dispute Resolution (ICDR) and the American Arbitration Association (AAA) increased over the last year, particularly in the life sciences and financial services sectors, with new claims exceeding $14bn. Some of the most common themes included environmental, social and governance (ESG) disputes arising from ESG-related contractual provisions on renewable energy, responsible supply chain requirements and greenhouse gas emissions.”

CANADA

Norton Rose Fulbright Canada LLP

“Unlike other jurisdictions, arbitral institutions in Canada do not publish annual reports on their respective new and ongoing cases or the industry sectors from which those disputes arose. Even if they did, these metrics would not include the significant number of ad hoc arbitrations which occur throughout Canada and which are not administered by any institution. Accordingly, due to the generally confidential nature of arbitration, it is not possible to accurately estimate the number of disputes being arbitrated, or to identify common themes.”

BRAZIL

Thomaz Bastos, Waisberg, Kurzweil Advogados

“There has been a steady increase in the number of arbitrations in Brazil. The increase in the number of construction arbitrations has led to great advances in Brazilian law and arbitration within the public sector. Not only has that sector consolidated over the years, but the market expects an increase in the value of disputes involving public corporations moving forward. Most recently, the corporate sector has taken the lead on national arbitration, as most cases at the country’s major arbitral institutions concern M&A transactions and company managers’ liability.”

ARGENTINA

Marval O’Farrell Mairal

“In Argentina, we have recently seen a sustained increase in the number of disputes in regulated industries, including oil & gas, banking and finance and telecommunications. Although several regulations were instated in response to the coronavirus (COVID-19) pandemic, others were totally unrelated to the crisis. The primary recurring matter under consideration in these cases revolves around determining the party accountable for contract disruptions resulting from new regulations that affect the initial transaction terms.”

UNITED KINGDOM

Gateley Legal

“In September 2023, the Law Commission of England and Wales issued a report and draft bill recommending changes to the 1996 Arbitration Act. During the Law Commission’s consultation, it was noted that while London remains the world’s preferred choice for international arbitration, other regional arbitration centres – particularly in Asia – have grown in popularity. In the past year, international arbitration was heavily influenced by events affecting the global economy more widely.”

REPUBLIC OF IRELAND

A&L Goodbody

“Arbitration activity in Ireland continues to grow. While activity in the traditionally busy construction and energy arbitration spheres has remained constant, there has also been an increase in insurance arbitration, disputes arising from the coronavirus (COVID-19) pandemic, and investor and shareholder disputes across a range of sectors. There is no means to assess the number of cases being referred to arbitration given the absence of reporting and the private nature of the process, however we have seen an increase in the number of disputes that are more complex and which require specialist practitioners.”

FRANCE

Latham & Watkins LLP

“As a leading centre for international arbitration, Paris sees cases involving companies from around the world regarding a wide variety of industries. It is thus difficult to say exactly how many cases were filed in 2023. However, as an indication, the International Chamber of Commerce (ICC) alone registered approximately 1000 cases in 2023. Most disputes concern contractual breaches and termination of commercial relationships. Often, this is seen in proceedings in the construction, energy and digital technologies industries.”

SWITZERLAND

Prager Dreifuss AG

“We have seen consistent figures regarding arbitrations in Switzerland. The increasing complexity of international commercial relations, compounded by factors beyond the control of parties, such as the fallout of the coronavirus (COVID-19) pandemic, wars and the effects of multilateral sanctions and political trade barriers, have all directly or indirectly had economic consequences for international contracts, leading to an increase in the number of arbitrations. Also, the consequences of sanctions are making themselves felt in the practical aspects of conducting arbitration proceedings.”

INDIA

Cyril Amarchand Mangaldas

“The last year has seen courts reinforce the trend of establishing India as an arbitration friendly jurisdiction by settling debated aspects of arbitration. This can be seen through several judgements which primarily recognise the importance of party autonomy and the necessities of modern commercial contracts. For instance, recently the ‘group of companies doctrine’ has been upheld, thereby extending the ambit of applicability of an arbitration clause even onto specific non-signatories. Further, it is now open to Indian parties to choose a foreign seat.”

SINGAPORE

Ashurst LLP

“Arbitration activity in Singapore remains high, reflecting its position as a leading global arbitration centre. The Singapore International Arbitration Centre (SIAC) reported a historical high of new case filings in the first quarter of 2023, with almost as many cases filed as in all of 2022. While statistics for the full year 2023 have yet to be released, anecdotal evidence suggests that the trend has continued. We are seeing an increasing number of disputes in the renewable energy sector, particularly relating to the construction of large-scale renewables projects in the region.”

HONG KONG

Quinn Emanuel Urquhart & Sullivan LLP

“Due to the confidentiality of arbitrations, a good indication of arbitration activity in Hong Kong are the reports published by the Hong Kong International Arbitration Centre (HKIAC). In 2022, 344 arbitrations were filed with the HKIAC, with HKD43.1bn in dispute. These were primarily Asia-focused: only 5.8 percent had no connection with Asia. Top users were from Hong Kong, mainland China, the British Virgin Islands, the Cayman Islands and Singapore. Disputes mostly concerned banking and financial services, corporate and international trade or sale of goods.”

SOUTH AFRICA

Herbert Smith Freehills

“Arbitral institutions in South Africa generally do not report their caseload statistics and, as such, it can be difficult to monitor actual arbitration activity. However, we saw a sustained increase in activity from the 2022 financial year which continued into 2023. Both the number of arbitrations registered, and the value of those claims, appear to be increasing. The Arbitration Foundation of Southern Africa (AFSA) registered more than 20 new arbitrations in the 2022 financial year. This brings the total number of international arbitrations administered by the AFSA since the coming into force of the International Arbitration Act in 2017 to around 130, with an annual caseload of between 20 and 30 new arbitrations being registered each year.”

CONTRIBUTORS

A&L Goodbody

Ashurst LLP

Cyril Amarchand Mangaldas

Gateley Legal

Herbert Smith Freehills

Latham & Watkins LLP

Marval O’Farrell Mairal

Norton Rose Fulbright Canada LLP

Prager Dreifuss AG

Quinn Emanuel Urquhart & Sullivan LLP

Thomaz Bastos, Waisberg, Kurzweil Advogados

Three Crowns