Flore Poloni, Philip Dunham and Kimberley Bazelais examine the ICC Court’s 2023 statistics in Law.com International

As the arbitration market remains highly competitive, the ICC is making every effort to maintain its status as a preeminent arbitral institution, reinforced by a track record of 28,000 administered cases. Analysis of ICC Court’s dispute resolution statistics for 2023 shows that its strategy remains focused on consistent growth. Although the COVID-19 pandemic did not spare any global arbitration institution, last year’s data indicates that recovery has finally arrived: for the first time since 2020, the ICC’s caseload returned to pre-pandemic levels.

Between 2020 and 2022, it had slumped from 929 to 695 cases while registered parties fell from 2,507 to 1,959—a worrying downward shift, notwithstanding “crisis” arbitrations relating to the pandemic. The recent upswing, marked by a jump from 695 cases in 2022 to 890 in 2023, certainly augurs well.

Parties 

Over the past 20 years, the ICC has maximised its international reach. This is evident from the establishment of offices—adjoining Abu Dhabi, Hong Kong, Singapore, New York and São Paulo to its Paris office—and the increase in Secretariat case management teams from eight in 2012 to 12 currently. Whether because of this expansion, the development of new features in successive editions of the ICC Arbitration Rules, or simply thanks to its global reach and reputation, the ICC’s strategy appears to be working.

The 2,389 parties engaged in ICC cases last year came from 141 different countries. In terms of regional origin, North and West Europe remains the most common at 28.8%, similar to 2022. When combined with Central and Southeast Europe, the figure rises to 40.4%. Next comes Latin America and the Caribbean, slightly down at 14.5% compared to 17.3% in 2022, followed by North America (U.S. and Canada) at 12.9%. South and East Asia, and the Pacific, are less represented: 11.7% compared to 14.5% in 2022. This could lead the ICC to fear a broader shift by regional users towards East Asian institutions such as the Singapore International Arbitration Centre (SIAC). Nonetheless, the use of ICC arbitration by parties from Central and West Asia (including the Middle East) remains stable.

Arbitrators and Constitution of Tribunals 

The ICC’s supporting role in the constitution of arbitral tribunals remains a much sought-after feature of ICC arbitration. Last year, the Court appointed 27% of arbitrators in ICC-administered cases.

Last year, 523 prospective arbitrators (39%) filed disclosures prior to their appointment, compared to 32% in 2019, a statistic to be read in conjunction with case law developments relating to independence and impartiality (especially in France which cemented its lead as the country most selected for arbitration, with 96 Paris-seated arbitrations). The ICC is understandably careful in stating that these “disclosures do not imply the existence of conflict”, which explains why only 23 prospective arbitrators were not confirmed by the ICC last year.

The ICC continues to drive gender diversity in appointing arbitrators although it struggles to meet geographic diversity goals. The number of female arbitrators nominated or appointed has increased steadily, but slowly: 312 in 2019, 355 in 2020, 371 in 2021, 364 in 2022, and a record 398 in 2023. The ICC has consistently played a significant role in this, with women comprising roughly 40% of its appointments.

The outlook for geographic diversity seems less positive. Last year, 935 ICC arbitrators from 89 countries were appointed, with a significant majority coming from Europe (60%). In other regions, the percentage from Latin America & the Caribbean, at 13.3%, was the lowest in four years, while the number of Asia Pacific confirmations and appointments also declined. Considering the growth of local arbitration institutions leading to geographical fragmentation, and to combat perceptions that the ICC is Eurocentric, this should encourage the ICC to continue expanding and diversifying its pool of arbitrators from underrepresented jurisdictions.

ICC Caseload

In line with previous years, the construction, engineering and energy sectors dominated, representing 45% of new cases brought before the Court. The ICC has worked hard to establish itself as the go-to commercial arbitration institution: only two new cases in 2023 arose out of bilateral investment treaties. Over the past decade, it has developed sophisticated tools to facilitate disputes of every size to address the perception of ICC arbitrations being an expensive process. Although the average amount in dispute was USD 65 million, the median amount for cases filed in 2023 was USD 5.5 million.

Last year, almost 40% of cases involved amounts under the USD 3 million threshold for the application of the Expedited Procedure Provisions, which came into force in 2017. It was also a record year for the Expedited Procedure with a record 189 new cases (compared to 124 in 2022, 157 in 2021 and 97 in 2020) where the provisions were applied—automatically in 174 cases and 15 cases where parties ‘opted in’. This confirms the procedure’s enduring popularity beyond the pandemic.

Awards and Scrutiny

Last year, 520 awards were rendered by ICC arbitrators, 512 of which were approved subject to points raised by the Court for the arbitral tribunal’s consideration, while 42 underwent a further round of scrutiny—a distinctive feature of ICC arbitration.

The average duration of proceedings for arbitrations concluded in 2023 increased slightly to 27 months, while the median duration (25 months) also rose. This resulted from procedural delays with only 47% of final awards rendered within the ICC’s specified timeframe—a consistent decline from 57% in 2022 and 59% in 2021. Although the statistics are silent on the issue, this could arise from the increased use of interim measures or other parallel proceedings where parties are increasingly sophisticated and litigious. The same trend arises in Expedited Procedures, although these awards are generally rendered on time, and delays are largely minimal.

The overall pattern of robust growth in 2023 is sufficient for the ICC to draw mostly positive conclusions. Nonetheless, halfway into 2024, the ICC’s ambitious vision for the years ahead requires further steps to maintain its appeal to international arbitration users and stakeholders, and avoid losing ground to the fierce competition from fast growing arbitral institutions worldwide.