Author: Paul D. Friedland** and Michael Ottolenghi***
Published: December 2009
| Jurisdiction: International |
Topics: Enforcement of Arbitral Awards Enforceability |
Description: After decades of reliance upon anecdote and lore, empirical studies have emerged as an important contribution to our understanding of international arbitration. The empirical surveys conducted by the School of International Arbitration at Queen Mary University of London in 2006 and 2008 (“2006 Survey” and “2008 Survey,” respectively) are of particular utility as they focus on the corporations that are users of international arbitration.
As one commentator has noted, “[C]arefully conducted and transparently described empirical research is a powerful tool to test assertions about the efficacy of the arbitration process . . . .” The 2006 Survey confirmed certain commonly held assumptions about international arbitration, most notably that 95% of survey respondents would continue to use international arbitration to resolve their commercial disputes. The 2008 Survey presents empirical evidence for the continued success of the New York Convention.
This note on the 2008 Survey first comments on the methodology of the Survey, and then offers observations, from the vantage of the practitioner, on the Survey’s findings relating to settlement and enforcement.
I. METHODOLOGICAL OBSERVATIONS
The utility of the 2008 Survey stems from the breadth of the respondents surveyed: more than 80 corporations and 21 arbitral institutions responded to the questions in the Survey. Of the corporations surveyed, 88% reported having used international arbitration at least once in the past ten years. While this is a significant indication of the widespread use of international arbitration, examination of the underlying data gives rise to the following observations. First, while 88% of corporations surveyed had used international arbitration at least once in the past ten years, the 2008 Survey further shows, as depicted in Figure 1, that, in response to a differently phrased question, 44% of Survey respondents reported that they have “experience” using international arbitration to resolve their international disputes, 41% have experience with transnational litigation, and 15 % have experience with mediation or other ADR mechanisms.
*Special Section on the 2008 Survey on Corporate Attitudes Towards Recognition and Enforcement of International Arbitral Awards
**Paul Friedland is the head of the international arbitration practice group at White & Case LLP.
***Michael Ottolenghi is an associate in the international arbitration group in the New York office of White & Case LLP.