The Path Forward – Conflict of Laws

“The 2025 Worldwide Arbitration Survey: The Path Ahead”

Luke Nottage (College of Sydney)

The 14th Queen Mary College of London Survey, once more in collaboration with worldwide regulation agency White & Case, was dissected at an Australian launch seminar (expertly moderated by companion Lee Carroll) at their Melbourne workplace on 22 July 2025. Some “early insights” had been offered throughout Paris Arbitration Weeks, when the Survey report was not but public. This evaluation delves deeper into the report and key findings, drawing additionally on the dialogue with our co-panellists, together with some options for future analysis.

Survey Methodology

This newest Survey reveals how the responses have change into extra expansive and subsequently dependable over time. Though not a random survey, 2402 responses have been obtained for the written questionnaire (the response fee is unspecified). That is considerably higher than “greater than 900” respondents for the 2022 Survey centered on vitality disputes, 1218 for the final 2021 Survey, and simply 103 for the inaugural Survey in 2006. This research was once more mixed-method, including qualitative analysis by way of 117 follow-up interviews.

This improve in Survey participation arguably signifies the rising consciousness of the analysis and curiosity in its outcomes, in addition to the proliferation and diversification of worldwide arbitration (IA) during the last 20 years. General respondents in 2025 (Chart 26) primarily practiced or operated within the Asia-Pacific (47%), illustrating arbitration’s shift (together with financial exercise) into Asia; individually in North America (an extra 10% of respondents), Central and Latin America (7%); plus Europe (10%) and Africa (6%).

Respondents’ major roles (Chart 23) have been counsel (35%), arbitrators (17%), each (14%), arbitral establishment employees (9%), lecturers (8%) and tribunal secretaries (2%). Surprisingly, there have been few in-house counsel (3%), who traditionally and anecdotally are typically extra involved eg about prices and delays. Few respondents have been primarily consultants (1%), which can replicate the declining skilled range inside IA.

Arbitration with or with out ADR

The 2025 Survey requested once more about respondents’ most popular technique of resolving cross-border disputes (Chart 1). IA along with ADR was hottest (48%), in comparison with standalone IA (39%). The Survey contrasts this with 59% versus 31% in 2021 (p5). That shift might point out that IA has been working successfully to handle eg persistent complaints about its prices and delays.

Nonetheless, extra work must be carried out by IA stakeholders, as within the 2015 Survey solely 34% of respondents had most popular IA with ADR, versus 56% preferring simply IA. This means that the development during the last decade stays in the direction of combining IA with ADR. Moreover, future analysis might usefully ask what is supposed by IA “along with ADR”. As co-panellist Leah Ratcliff remarked from her expertise (now as in-house counsel in Australia), events are extra comfy with clauses offering for (structured) negotiations relatively than (probably nonetheless fairly costly) mediation earlier than IA. It could even be attention-grabbing to test respondents’ preferences relating to Arb-Med (arbitrators actively selling settlement, or partaking an Arb-Med-Arb course of as in Singapore – arguably exhibiting up within the 2022 SIDRA Survey, Exhibit 8.1).

The 2025 Survey commentary additionally means that ADR desire could also be partly “influenced by cultural elements” (p6), noting European respondents favoured extra standalone IA (51%) in contrast Asia-Pacific respondents (37%). Nonetheless, recall that general 39% favoured IA anyway.

There additionally stays nice range inside Asia relating to authorized tradition – not to mention common tradition. For instance, first there are frequent regulation jurisdictions (eg Singapore, Hong Kong, Australia) with robust traditions now of home mediation for industrial disputes, as a consequence of excessive prices and delays in litigation initially (and generally nonetheless). This carries over into extra willingness to conform to multi-tiered clauses mandating even mediation earlier than arbitration. Secondly, nevertheless, there are some frequent regulation jurisdictions in Asia (notably India, regardless of intensive courtroom delays) with no such custom of privately-supplied mediation companies. Relatedly, their authorized advisors and events are extra reluctant to suggest Med-Arb clauses in worldwide contracts (though they might conform to them if proposed, if acquiring different advantages by way of negotiations). Thirdly, civil regulation jurisdictions (like Japan, with extra environment friendly courts plus some Court docket-annexed mediation, but in addition mainland China) additionally appear much less amenable to Med-Arb clauses, though lengthy comfy with clauses offering for good religion negotiations previous to IA. As well as, there may be even higher range throughout Asia relating to Arb-Med (principally solely practiced intensively in China, partly in Japan).

Most well-liked Seats and Guidelines

Earlier surveys had began to determine Singapore, Hong Kong and mainland Chinese language cities inside high most popular seats, together with conventional venues like London and Paris. But it was unclear whether or not this mirrored the rising proportion of Asia-Pacific (basically Asian) respondents. The 2025 Survey helpfully helps to handle this query. Globally, ie amongst all respondents (Chart 3), probably the most most popular seat is London (chosen, amongst as much as 5 seats, by 34%), then Singapore and Hong Kong (31% every), then Beijing and Paris (19% every). Nonetheless, London and Singapore have been ranked within the high 4 for all regional respondents, and Paris too aside from Asia-Pacific respondents (Chart 2). In any other case, the European and Asia-Pacific respondents “present robust preferences for seats of their respective areas” (2025 Survey, p7).

Fairly equally, LCIA Guidelines (nominated globally by 25% of all respondents, once more with as much as 5 preferences) have been most popular in all areas besides the Asia-Pacific, whereas SIAC Guidelines (chosen by 25%) and UNCITRAL Guidelines (15%) have been most popular for all areas besides Central and Latin America (Charts 4 and 5). Against this, HKIAC Guidelines (25%) have been most most popular by Asia-Pacific respondents (36%), however not chosen amongst high 5 preferences from respondents from different areas. As co-panelist (and skilled arbitrator) Michael Pryles famous on the launch seminar, Hong Kong and HKIAC Guidelines nonetheless profit as a compromise for transactions and disputes involving mainland China. He additionally rightly instructed, as did an viewers member, that asking about “preferences” could not give the complete image. This may very well be usefully in contrast with evolving precise observe, together with arbitration case filings. Over 2024, for instance, HKIAC dealt with 352 new arbitration instances (77% worldwide) whereas SIAC dealt with 625 (91% worldwide).

Co-panellist Diana Bowman, new Secretary-Common of the ACICA, remarked that the ACICA Guidelines didn’t fairly make Chart 5, regardless of the Australian Centre’s elevated case filings in recent times. As a former Guidelines committee member (2004-2024), I added that arbitral establishments shouldn’t simply be judged by case submitting statistics. These rely for instance on geography, though there could also be scope for Australia to concentrate on niches, such because the South America – Southeast Asia or South Asia trades, or (as Pryles additionally noticed) specialist fields resembling disputes over assets. As well as, bettering Guidelines (and seats extra usually) can permit native events extra credibly to suggest them however then compromise in negotiations to acquire different contractual advantages.

Pryles additionally shared experiences and views in regards to the rising influence on IA from  sanctions on events or contributors. Notably, 30% of respondents famous that sanctions led to a distinct seat being chosen (Chart 6).

The 2025 Survey additionally discovered that 39% thought awards put aside on the seat ought to be enforceable in different jurisdictions (Chart 8), whereas 61% thought not. The 39% proportion is surprisingly excessive, as solely French courts uniformly undertake this method. Courts elsewhere will normally not implement, except there may be some significantly egregious flaw relating to the seat courtroom (resembling confirmed corruption) or seat jurisdiction (resembling laws retrospectively impacting arbitration agreements or awards). Maybe the 39% of respondents agreed with enforcement however solely in such distinctive circumstances, which could then be separated out as a 3rd risk in future analysis. In the meantime, this development (and rising deference in the direction of choice of seat courts as a substitute upholding challenged awards) ought to reinforce the significance of rigorously selecting the seat.

IA Enforcement and Effectivity

Previous Surveys (and different analysis) sometimes recognized enforceability of IA awards (and agreements), neutrality and experience of arbitrators, flexibility in procedures, then privateness and confidentiality, as main benefits over cross-border litigation. The 2025 Survey innovated by specializing in the rising consciousness and engagement in varied public curiosity components (eg environmental) even in industrial IA, together with its perceived benefits as a substitute of litigation. Arbitrator experience (47%), avoiding native courts and legal guidelines (42%) and (broader?) neutrality (28%) have been usually chosen from amongst three choices (Chart 15). Confidentiality was chosen by 34% of respondents, which appears comprehensible given these are nonetheless industrial disputes (not ISDS arbitrations involving higher public pursuits and so already related to extra transparency). Enforceability of awards was solely chosen by 32%, however this will likely replicate higher precise or anticipated issues with public coverage or arbitrability exceptions to enforcement.

Then 2025 Survey additionally usefully drilled down into one other generally posed query: voluntary compliance with IA awards (Chart 7). Apparently respondents stated this occurred equally, nearly at all times or usually, for non-ICSID awards in opposition to states (33%) as for ICSID awards (34%), regardless of many of the latter involving the extra delocalised ICSID Conference enforcement regime. Additionally surprisingly, good compliance for non-ICSID personal awards was solely reported by 40% of respondents. This may occasionally additionally point out persistent query round “formalisation” and over-lawyering in IA, mentioned extra broadly below “effectivity and effectiveness” within the 2025 Survey (pp15-19).

Notably, respondents have been requested to selected as much as three choices for processes that will most enhance effectivity in IA (Chart 10). The preferred have been expedited arbitration (50%, producing additional questions) and early willpower of unmeritorious claims or defences (49%). However there was additionally curiosity in non-binding pre-arbitral assessments by an knowledgeable (13%), obligatory settlement discussions (12%) or mediation (11%) in procedural timetables, and even “baseball arbitration” (11%). Apparently, as this stays a sizzling matter for multi-tiered clauses, 7% selected “limiting grounds to problem pre-arbitration ADR outcomes in arbitration proceedings” (relatively than in courtroom). Much less surprisingly, as these influence on charges earned by counsel (the biggest respondent group) and are not often talked about in arbitral Guidelines, only one% picked “sealed provides” as a mechanism to enhance effectivity.

The survey discovered “maybe most surprisingly, given the respondents’ usually beneficial view of mixing arbitration with ADR, the choice of multi-tiered dispute decision clauses with obligatory ADR processes was included by fewer than 1% of respondents as certainly one of their three picks. To some interviewees, ADR provides an pointless procedural layer. Others query the utility …” (p16). Nonetheless, this low response fee arguably is as a result of query’s phrasing, which requested about measures to enhance effectivity in arbitration (not the general dispute decision course of).

A last sizzling matter canvassed within the 2025 Survey issues AI in IA (pp27-33). Pryles was skeptical about arbitrators delegating an excessive amount of to Synthetic Intelligence for his or her reasoning. Surprisingly, nevertheless, though 71% of respondents had by no means used AI for “evaluating authorized arguments” prior to now 5 years, for the following 5 years this was anticipated to drop to 31% (Chart 18). Admittedly, a few of this can be carried out by legal professionals and so much less problematic than for arbitrators.

Much less controversial is the prevailing use of AI for “doc assessment” (by no means used up to now by solely 41%, anticipated to drop to 10%). Nonetheless, that raises the query of whether or not an much more environment friendly method can be for arbitrators to extra pro-actively assist determine the problems to be decided, and therefore related proof. The 2012 Survey (Chart 9) had discovered that to be the most effective means skilled to expedite arbitral proceedings, even when phrased as arbitrators doing this “as quickly as potential after structure” of the tribunal (which is extra controversial than because the arbitration progresses, eg below the JCAA Interactive Arbitration Guidelines).

Conclusion

The 2025 Survey, particularly mixed with the sooner ones, gives a wealthy useful resource to know present practices and issues in IA. It additionally helps determine future alternatives and challenges, in addition to promising ongoing analysis into this always-evolving area.