The ICC has recently published its preliminary 2017 statistics, showing a slightly lower case load than the record-breaking 2016, but still indicating a steady long term growth. A total of 810 new cases were filed in 2017, involving 2316 parties from a record 142 countries. These newly-registered cases represented an aggregate value in dispute of over US$30.85 billion, with an average amount in dispute of US$45 million. Overall, these numbers demonstrate ICC’s global reach and leading position for complex, high-value disputes.
Caseload and amounts in dispute
After the record 20% increase reported by the ICC in 2016 – due primarily to a set of 135 low-value claims in a collective dispute – the ICC’s 2017 caseload dropped from 966 to 810 new claims, 60% of which had an amount in dispute over US$2 million. In total, the ICC had 1548 cases pending in 2017, with an average value in dispute of US$137 million. This number is significantly higher than the average value of cases which were newly registered in 2017 (US$45 million), potentially signalling that the ICC received fewer very high value claims in the past year than in previous years. The statistics also reveal a record number of draft awards approved by the ICC Court (512).
The number of States and State entities that were parties to arbitral proceedings initiated in 2017 rose to over 15% from 11% in 2016. Four of the 810 new claims were filed under a Bilateral Investment Treaty.
Appointment of Arbitrators and diversity
In 2017, of 1488 arbitrators nominated or appointed, 249 were women (16.7%), representing 85 nationalities. Of that 16.7%, the ICC appointed 45%, the parties themselves 41%, and the co-arbitrators 13.7% (being 7.5%, 6.8% and 2.3% of the total number of arbitrators respectively). This represents an increase on the percentage of female arbitrators appointed in 2016, which saw female arbitrators making up 209 of the 1,411 arbitrators appointed (14.8%).
There was an increase in the number of British and French arbitrators appointed. The number of English arbitrators appointed grew to 219 from 200 appointments in 2016 and the number of French arbitrators appointed grew to 141 from 98 appointments in 2016. This represents growth of over 9% and 44% respectively. Swiss (116 appointments, down from 145 in 2016), American (100 appointments, down from 168 in 2016) and German (99 appointments, up from 72 in 2016) arbitrators were the next most popular nationalities for arbitrator appointments.
Alexis Mourre, President of the ICC, stated that the ICC “will now double [its] efforts to significantly increase gender and regional diversity both in our appointments and in the Court’s membership”.
The number of cases (87) and parties (153) from Sub-Saharan Africa represented a significant double digit growth (respectively 35.9% and 40.4%) in the region.
Representing a growth of over 26% from 2016, 219 parties featured in ICC arbitrations in Central and West Asia in 2017. Iran, Kazakhstan, Qatar, Saudi Arabia and the United Arab Emirates all ranked in the top 50 countries both in terms of case numbers and number of parties represented. Collectively they represent over 15.5% of total parties. The statistics released by the ICC to date do not show the representation of parties from elsewhere in the Middle East: greater insight is anticipated when the ICC releases its detailed statistical report later this year.
Following the establishment of a case management team in Sao Paulo last year, Latin America saw an increase of almost 8% in number of cases and Brazil rose to 7th place in the case rankings worldwide, with 51 cases compared with 36 in 2016. The Sao Paulo team currently manages nine cases.
Oceania saw a marked increase of 25% in new cases filed and a 3.4% growth in the number of parties represented.
Finally, North and West Europe accounted for 784 parties, representing a growth of 4.8% from 2016.
Challenges, expedited and emergency procedures
The number of challenges made to arbitrators fell slightly from 50 in 2016 to 48, of which six where accepted.
Following the introduction of Expedited Procedure Provisions (EPP) in the 2017 ICC Rules of Arbitration (2017 Rules), 50 requests to opt-in were submitted. Of these, 10 resulted in an agreement to EPP, involving 20 parties from 16 countries. Only three of these cases were concluded within the six-month time limit from the case management conference established under the 2017 Rules.
Finally, the ICC’s emergency arbitrator procedure was adopted in 21 cases, involving 58 parties from 31 countries – a figure that is slightly lower that the 25 cases filed in 2016.
While 2017 was not a record year for the ICC, these statistics demonstrate continuing long-term growth for the institution. A focus on gender diversity in arbitral appointments appears to be making some headway, with a noticeable increase in the number of female arbitrators appointed. However, given that the ICC only appoints arbitrators in less than a quarter of cases, achieving further gender diversity will rest primarily with the parties and co-arbitrators. The geographic diversity of arbitrators also remains a considerable challenge, with little in these statistics to indicate a significant move away from the “usual suspects” in terms of jurisdictional background, with Western European and American candidates remaining very prominent.
A full breakdown of ICC Dispute Resolution Statistics will be made available in the ICC Dispute Resolution Bulletin later this year.
For more information, please contact Craig Tevendale, Partner, Vanessa Naish, Professional Support Consultant, Jonas Thierens, Paralegal, or your usual Herbert Smith Freehills contact.