Global reach and construction disputes feature prominently in ICC arbitrations

According to its 2023 casework report (28-page PDF/892KB), parties from 141 countries and territories were involved in a total of 890 new arbitration cases filed with the ICC Court.

While parties from Europe (40%) and the Americas (27%) accounted for the largest proportion of parties  at the ICC in 2023, Asia and the Pacifics represented the third largest region (25%). However, the ICC has also in recent years become a popular venue among parties from the Middle East and Africa. The institution has historically administered the highest volumes of cases involving African parties.

In 2022, the Middle East represented 10% of the ICC’s overall party population which steadily increased to 12% in 2023. The top five nationalities in the region were the UAE (with 84 parties) followed by Saudi Arabia (54 parties), Qatar (53 parties), Oman (30 parties) and Lebanon (20 parties).

As in previous years, parties from North Africa and Sub-Saharan Africa accounted for 8% of the total party population. International arbitration expert and Member of the ICC Court of Arbitration, Chloe De Jager said that of the 8%, the split across the continent was telling, with more than 120 parties coming from Sub-Saharan Africa. The representation across 32 nationalities is another sign of ICC arbitration’s growing popularity in the region. “This shows that the work being done by the ICC is gaining traction in less popular jurisdictions, while maintaining its impact in the more prominent African countries. Given the volume of cases across the continent, it is recognised that regional arbitral institutions still play a key role to parties, particularly in relation to domestic arbitrations and in Sub-Saharan Africa,” she said.

While ICC cases cover a wide range of sectors that are divided into more than 20 categories, the construction and energy industries continued to generate the largest number of cases in 2023. Collectively, these two sectors accounted for around 45% of all new cases registered or 219 (25.2%) and 179 new cases (20.6%), respectively. This is consistent with previous years, where the construction and energy sectors generated 45% of new cases in 2022 and 44% of new cases in 2021. 

Scheherazade Dubash, international arbitration specialist at Pinsent Masons, said that “in recent years, Gulf Cooperation Council (GCC) countries have increasingly recognised the potential in investing in Africa and their strategic geographic location between Africa, Europe, and Asia has positioned them well for economic collaboration. As large-scale and ‘mega’ projects continue to thrive, arbitration remains the preferred method for resolving disputes related to distressed infrastructure and construction projects. As the infrastructure sector that continues to dominate ICC’s caseload, the statistics support the view that the ICC remains a popular choice  for handling infra and energy related disputes,  some of which are more likely than not going to include those originating from Middle East and African regions”.

“As regional arbitration institutions continue to promote their services over more established centres like the ICC, it will be intriguing to observe whether this trend will persist in the coming years”, said Dubash.

According to ICC’s statistics, at the end of 2023 the Secretariat was administering a total of 1,766 cases through its offices in Paris, New York, Sao Paulo, Singapore, Hong Kong, and the Abu Dhabi Global Market.

The average amount in dispute in 2023 filings was $65 million, and the aggregate amount in dispute stood at $53 billion. These figures are markedly lower than in 2022 and 2021. In 2022, the average amount in dispute was $154m; in 2021, the average amount was $143m, and the aggregate amount in dispute was $113bn. However, this reflects a return to the ICC's average pre-pandemic figures.

Global co-head of arbitration and investor-state dispute settlement at Pinsent Masons, and ICC Court member, Sylvia Tonova said that “the 2023 ICC statistics underscore the institution’s preeminent position in arbitral proceedings involving high-value disputes across a wide spectrum of global transactions. It is this extensive global reach, combined with the ICC’s wealth of experience, that sets it apart”.

Last year saw a change among the top five countries as seat for ICC arbitration. In 2023, the top five countries were France, the UK, Switzerland, the US, and Brazil. In 2021, the UK was selected more frequently than France, and Singapore was the fifth most popular choice.

Another recent development saw the ICC Court exercise its power to fix the place of arbitration in 8% of all cases in 2023.

The statistics also show that the ICC made steady progress in improving diversity in arbitrator appointments. In 2023, about 41% of the arbitrators appointed by the ICC were female. Overall, female appointments continue to increase steadily, from 24.3% in 2021 and 28.6% in 2022 to 29.7% last year.

In 2023, a total of 935 arbitrators were appointed to act in ICC arbitrations and they come from 89 jurisdictions. Close to 60% of all confirmations and appointments involved arbitrators coming from Europe, while 24% of arbitrators came from the Americas, 12% from Asia and the Pacific, and 4% from Africa. As in previous years, the UK remained the top arbitrator nationality, followed by France, Switzerland, Germany, Spain, and Austria.

“Enhancing arbitrator diversity, particularly in terms of gender and geographic representation, is a crucial trajectory to monitor. The ICC’s commitment to appointing arbitrators from diverse nationalities and ensuring broader geographical coverage in appointments will be worth watching,” said Dubash.

In addition to arbitration, the 2023 report also draws light on the number of cases registered with the ICC International Centre for ADR. The ADR Centre offers a wide range of services that can be used separately, successively or even concurrently with arbitration at the ICC Court of Arbitration. These include administering mediations and other forms of amicable dispute settlement. The separation between the Court and the ADR Centre is intended to preserve the full confidentiality of mediation and arbitration proceedings—whether they are concurrent or not and if the parties do not wish the exchange of information.

In 2023, 37 requests were filed under the Mediation Rules. Newly-registered mediation cases involved 90 parties from 28 countries. Six parties were state-owned, including those originating from Africa, the Middle East, Europe and the Americas.

International Arbitration specialist and delegate of the ICC’s UAE National Commission on Arbitration, Faisal Attia of Pinsent Masons said, “While there has historically been scepticism surrounding the mediation process in the Middle East, we are witnessing a growing popularity. Parties now recognize mediation as a forum to bridge gaps and thoroughly examine the strengths and weaknesses of their positions—often for the first time. Under the right conditions, mediation can lead to settlements. At the very least, it ensures that parties are well-informed about their positions before embarking on more formal dispute resolution proceedings”.

The ICC Guide to Effective Conflict Management, published by the ICC Commission on Arbitration and ADR in July 2023, provides valuable guidance on selecting the most suitable ADR techniques, according to Attia. “It explains how to use these techniques efficiently to prevent escalation, resolve disputes, and minimise the costs associated with unavoidable conflicts, both before and after the commencement of arbitration proceedings. The guide also outlines the available ICC dispute resolution services and offers practical examples of their standalone use or combination”, he said