During the year 2008, the activity of the ICC International Court of Arbitration ('the Court') intensified considerably. Demand for ICC arbitration grew by 10%, with 663 new Requests for Arbitration. As a consequence, the number of ongoing cases rose to over 1,300, more awards were rendered than in any previous year, and the participants in ICC proceedings-both parties and arbitrators-were more numerous and diverse than in the past.

In response to the heightened demand for the Court's services, ICC made a number of structural changes during the year. A branch of the Secretariat of the Court was opened in Hong Kong to handle the growing number of cases linked to South and East Asia. An additional case management team was created at the Secretariat's Paris headquarters, bringing the total number of teams to eight. ICC also opened its Hearing Centre in Paris, which offers specially designed hearing and meeting rooms for use in arbitration and other dispute resolution proceedings.

During 2008, the composition of the Court rose to 127 members from 90 different countries. A Committee of the Court, with a rotating membership, met each week throughout the year, and a Plenary Session was held each month. The Secretariat of the Court was joined by new staff members from an increasingly wide range of countries, reinforcing the institution's multiculturalism and its ability to handle an ever more diverse caseload.

Outside the institution's walls, the Court organized and sponsored training events and conferences in North and South America, South East Asia, North Africa and the Middle East, and Europe, including Russia. These events, which offered an interface with arbitration professionals, corporate counsel, the judiciary and student practitioners, covered not only arbitration but also ICC's other dispute resolution services: ADR, expertise, DOCDEX and dispute boards.

The present report provides statistical information on parties and arbitrators in ICC cases commenced in 2008 and on other aspects of the proceedings administered by the Court during the year. It also includes similar information on ICC's other dispute resolution services. [Page6:]

Arbitration

Parties

The cases filed with the Court in 2008 involved a total of 1,758 parties. This represents an increase of almost 10% over the previous year, largely explained by the increase in the number of cases filed but also by a 3% increase in the number of multiparty cases.

Geographical origins of parties

The parties involved in the cases registered in 2008 came from 120 different countries and independent territories. Some 50% of these parties were from Europe, 20% from the Americas and 20% from Asia. There were also parties from Africa and Oceania.

AFRICA

2% of all parties came from North Africa and 4% from Sub-Saharan Africa. At 66, the number of parties from Sub-Saharan Africa was twice as many as in 2007. The largest increases concerned (in decreasing order) Nigeria, Tanzania, Mauritius, Zambia, Liberia and Senegal. In North Africa, there was a marked rise in the number of Tunisian parties.

OCEANIA

The number of parties shrank to less than 1% of all parties from just over 1% in 2007.

Country/Territory Claimants Respondents Total

AMERICAS

11% of all parties came from North America and 11% from Latin America and the Caribbean. USA rose to become the most frequent of all nationalities in 2008. Brazil continued to lead in Latin America, closely followed by Mexico. In the [Page7:] Caribbean, there was a significant rise in the number of parties from the Bahamas, which was the second most frequent nationality after the British Virgin Islands.

ASIA

7% of all parties came from Central and West Asia and 12% from South and East Asia. The number of parties from West Asia was higher than ever before, due to an almost twofold rise in the number of Israeli and UAE parties and an upsurge in the number of Qatari parties. In South and East Asia, the number of parties from China reached a record high, overtaking India as the most frequent nationality in the region.

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EUROPE

41% of all parties came from North and West Europe and 12% from Central and East Europe. As in 2007, German parties were the most frequent in Europe, followed closely by French parties. In Central and East Europe, previous records were equalled or exceeded for Bulgaria, Greece and Poland.

Most frequent nationalities of parties

State and parastatal parties

Of the 1,758 parties involved in the cases filed with ICC in 2008, 80 (4.6%) were States or parastatal entities. Although such parties originated from all regions except North America and Oceania, they were chiefly concentrated in Central and East Europe, Sub-Saharan Africa and Latin America.

The number of cases involving one or more States or parastatal entities rose to 71 in 2008, representing 10.7% of the total number of cases filed during the year. The Court also received a case involving an inter-governmental organization. [Page9:]

Multiparty cases

The number of cases involving more than two parties rose slightly in 2008 to 192, from 186 in 2007, and represented 29% of the total number of cases filed during the year. 166 cases involved between three and five parties, 17 between six and ten parties, and 9 more than ten parties. The largest number of parties in any one case was 21.

Single-nationality cases

ICC arbitration is not confined to international disputes. If empowered by the parties' arbitration agreement, the Court may also administer cases between parties of the same nationality. 107 (16.1%) of the cases filed in 2008 involved parties of the same nationality. The total number of nationalities represented in these cases was 44. The largest number of single-nationality cases involved French parties (10 cases), followed by Brazilian and German cases (7 each), then Italian and Polish cases (6 each). Single-nationality cases represented 50% or more of the total number of cases involving parties from Albania, Croatia, Kenya, Laos and Oman.

Arbitral tribunals

2008 saw a record 1,156 appointments and confirmations of arbitrators in ICC cases. This 11% increase over 2007 can be explained by the rise in the number of cases filed together with an increase in the number of three-member tribunals.

Constitution of arbitral tribunals

Arbitrators in ICC cases are either nominated by the parties or the other arbitrators (in the case of three-member tribunals), or appointed by the Court. Nominations by parties and other arbitrators have to be confirmed by the Court. Appointments are made either on the basis of a proposal from an ICC national committee, or directly by the Court. In 2008, there were 682 nominations and 474 appointments of arbitrators. The relative proportions of nominations and appointments (59%/41%) was in keeping with the breakdown averaged over the last five years (58.5%/41.5%).

Whether nominated or appointed, arbitrators are required to sign a statement of independence and disclose any facts or circumstances that might be of such a nature as to call into question their independence in the eyes of the parties. If disclosures are made, the statement of independence becomes 'qualified'. 168 (14.5%) of the 1,156 appointments and confirmations recorded in 2008 were made on the basis of qualified statements of independence.

Of the total number of appointments and confirmations in 2008, 202 (17.5%) were for one-member tribunals. The remaining 954 were for three-member tribunals: 307 (26.5%) appointments and confirmations of co-arbitrators and 647 (56%) appointments and confirmations of presiding arbitrators to chair the tribunal.

The table below shows the manner in which the different kinds of arbitrators were appointed or confirmed.

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In 2008, 24 nominations of arbitrators were not confirmed by the Court. 20 of the candidates had made qualified statements of independence.

Incidents affecting the composition of arbitral tribunals

The composition of an arbitral tribunal may be affected by three kinds of incidents occurring after the commencement of the proceedings.

Challenges 'for an alleged lack of independence or otherwise' (ICC Rules of Arbitration ('the Rules'), Art. 11(1)) were introduced in 23 cases against a total of 44 arbitrators. Only one of the challenges was accepted by the Court.

19 resignations were tendered by ICC arbitrators during 2008. All were accepted by the Court. Some were prompted by the initiation of a replacement procedure by the Court, following the arbitrator's failure to fulfil his or her functions.

In addition to the replacements made following the acceptance of a challenge or a resignation, 4 replacements were made due to death and 5 at the request of all the parties pursuant to Article 12(1) of the Rules.

Geographical origins of arbitrators

The arbitrators came from 74 different countries. Switzerland continued to provide the largest number of arbitrators, although its lead was narrowed in 2008 due to an increase of over 50% in the number of German arbitrators and of some 30% in the number of UK arbitrators. Elsewhere, the number of arbitrators from Austria, Australia, Malaysia, Mexico, Singapore, South Korea and Spain rose to unprecedented levels.

The table below shows the number of appointments and confirmations of arbitrators from the countries listed, with a breakdown according to their status.

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Places of arbitration

In over 90% of the cases commenced in 2008, the place of arbitration was chosen by the parties, usually in their arbitration clause or occasionally in a subsequent agreement. For the first time, the proportion of cases in which the Court was required to fix the place of arbitration fell to less than 10%.

A total of 93 different cities in 50 countries were selected as places of arbitration in 2008.

72.7% of all cases commenced in 2008 were seated in Europe, 14.1% in Asia and 12.4% in the Americas. Significant developments in 2008 included a 67% increase in the number of times Germany was chosen as the place of arbitration and a general rise in the frequency of Asian venues (up by 24% from 2007). The Asian rise was due notably to the popularity of the United Arab Emirates (ninefold increase compared with 2007), Hong Kong (up 70% on 2007) and Singapore (up 80% on 2007). The five most frequently chosen cities, which were the same in 2008 as in 2007, in themselves accounted for half of all cases. [Page12:]

In the USA, ICC proceedings were seated in 10 different states: New York (12 cases), California (6 cases), Florida (5 cases), Texas (3 cases), Illinois and Pennsylvania (2 cases each), and Arizona, Ohio, Oregon and Washington D.C. (1 case each).

The table below shows the frequency with which the countries listed were selected as places of arbitration in 2008.

Choice of law

In 86.8% of the contracts underlying the disputes referred to ICC arbitration in 2008, the substantive rules applicable to the merits of the dispute had been specified by the parties. This was a national law in 84% of cases. The most frequent choice was English law (13% of contracts), followed by Swiss law (9.5%), French law (7.3%), US laws (6.7%), German law (4.8%) and Spanish law (3.1%). The range of laws chosen was wider than ever before, covering some 75 different nations and independent territories.

In those contracts where parties had chosen US laws, the law of the state of New York was by far the most frequent choice (62.5%). Other state laws chosen were those of California, Delaware, Florida, Massachusetts, New Jersey, Ohio, Oregon and Pennsylvania.

The parties had specified rules of law other than State laws in 3% of their contracts. The most frequent choice was the United Nations Convention on Contracts for the International Sale of Goods (CISG). Other choices included the UNIDROIT Principles of International Commercial Contracts, the law of the Organization for the Harmonization of Business Law in Africa (OHADA) and EC law. In a few contracts, references were also found to international law, international trade law, equity and universally recognized principles of law.

In 13.2% of contracts, the parties had not specified the law applicable to the merits of their dispute.

The above figures reflect the positive choices made by parties when drafting their contracts. They do not take account of the decisions on the applicable law made by arbitrators after the proceedings have begun. Nor do they include negative choices, whereby parties exclude the application of a given law. [Page13:]

Nature of the disputes

Economic sectors

The range of sectors represented in ICC cases registered in 2008 was extremely wide and followed a similar breakdown to previous years. Construction and engineering disputes continued to be the most numerous, accounting for over 15% of the total caseload. They were followed by energy disputes, which accounted for 10.4% of disputes. Other areas strongly represented were telecommunications and information technology (8.1% of cases), finance and insurance (7.2% of cases), transport (6.8% of cases), general trade and distribution (6.5% of cases) and industrial equipment (6.2% of cases).

Amounts in dispute

2008 saw a large increase in the number of high-value disputes. The percentage of cases in which the amount in dispute exceeded 100 million dollars topped 5% for the first time, and almost 60% of cases involved amounts exceeding one million dollars. Four cases were filed in which the amount in dispute exceeded one billion dollars. [Page14:]

Awards

The total number of awards approved by the Court grew by 17% in 2008 to 407. These awards included 261 final awards, 109 partial awards and 37 awards by consent.

Making of the award

Over 90% of awards made by three-member tribunals in 2008 were unanimous decisions. In 31 awards, the decision was made by a majority of the three arbitrators. In no case was it necessary for the chair of the tribunal to make the award alone, as permitted by Article 25(1) of the Rules.

Scrutiny

Awards made by ICC arbitral tribunals are submitted to the Court for approval pursuant to Article 27 of the Rules. In 2008, the Court laid down modifications as to the form of the award and/or drew the arbitral tribunal's attention to points of substance when approving 363 awards, leaving 44 awards approved without commentary by the Court. On a further 25 occasions, the Court requested that the tribunal resubmit its award for approval.

Languages

Some 75% of the awards approved in 2008 were drafted in English. The remaining awards were drafted in the following languages (in decreasing order of frequency): French, Spanish, German, Portuguese, Italian, Polish, Greek, Russian, Turkish, Arabic, Czech, Hungarian and Serbian. Two bilingual awards were approved: one drafted in English and Italian and the other in English and Chinese.

Correction and interpretation

If, after an award has been rendered, it proves necessary to correct or interpret any part of the award, the tribunal may draw up an addendum pursuant to Article 29 of the Rules. During 2008, 32 addenda were issued by ICC arbitral tribunals correcting and/or interpreting an award. On 10 occasions, arbitral tribunals issued decisions rejecting an application for correction and/or interpretation.

ICC as Appointing Authority

Parties involved in ad hoc proceedings may call upon ICC to assist in constituting the arbitral tribunal. ICC offers a special set of rules for this purpose, entitled the Rules of ICC as Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration Proceedings. The functions carried out by the Court under those rules cover not only appointments but also challenges and other services upon which the parties may agree. [Page15:]

In 2008, 24 requests were filed for ICC to act as appointing authority. Of these requests, 12 concerned UNCITRAL and 12 non-UNCITRAL ad hoc proceedings. Appointments were sought in 19 of the requests and a decision on a challenge in the other 5.

ADR - Expertise - DOCDEX - Dispute Boards

ICC offers a range of other dispute resolution services, which may be used as alternatives or in addition to arbitration. Administered separately from arbitration, these services cover amicable dispute resolution (ADR), expertise, DOCDEX and dispute boards.

ADR

ICC ADR stands for amicable dispute resolution. It offers a procedure for settling disputes consensually, with the assistance of a third party known as a neutral. The procedure is governed by the ICC ADR Rules, which leave the parties and the neutral free to choose whatever settlement technique(s) they prefer. Mediation is used if no choice is expressed.

In 2008, 11 Requests for ADR were filed with ICC. They concerned a variety of economic sectors, including engineering, industrial equipment, general trade and distribution, healthcare and household goods, and ranged in size from six-figure to multimillion dollar cases. A total of 29 parties and 7 neutrals were involved, whose geographical origins are indicated in the table below.

In 2 of the ADR cases commenced in 2008 the neutrals were chosen directly by the parties. In most cases, however, no agreement was reached on the choice of a neutral, who was therefore selected by ICC. The time taken to appoint the neutral averaged 29 days from receipt of the Request for ADR, and total duration of the proceedings 89 days from receipt of the Request for ADR. In 3 cases, no neutral was appointed as the responding party refused to participate and the proceedings could therefore not proceed. In 2008, mediation was consistently used as the settlement technique. The average cost of ADR proceedings commenced in 2008, including the fees and expenses of the neutral and the administrative expenses of ICC, was just over 12,500 US dollars.

Expertise

The ICC International Centre for Expertise administers three distinct services for use by persons seeking expert opinions: the proposal of experts, the appointment of experts, and the administration of expertise proceedings. In 2008, the Centre received 5 requests for proposals, 4 requests for appointments and 1 request for the administration of expertise proceedings. The areas in which expertise was sought included engineering and construction, energy, manufacturing and transport. The parties requesting the Centre's services came from Australia, Colombia, Congo, the Czech Republic, Denmark, France, Germany, India, Italy, New Caledonia, Norway, Portugal, Romania, Spain, Tanzania, the United Kingdom, the USA and Vietnam. The experts proposed or appointed came from France, Mexico, the Netherlands, Singapore, Switzerland, the United Kingdom and the USA.

DOCDEX

DOCDEX is a special service proposed by ICC for resolving disputes related to letters of credit and other documentary instruments incorporating ICC banking rules including the Uniform Customs and Practice for Documentary Credits (UCP), Uniform Rules for Collections (URC) and Uniform Rules for Demand Guarantees (URDG). It is a fast, document-based expertise procedure leading to a decision by a panel of three experts drawn from a list maintained by ICC's Banking Commission. The procedure is administered by the ICC International Centre for Expertise. [Page16:]

In 2008, the Centre received 15 requests for DOCDEX, involving parties from 17 different countries (China (both Mainland China and Hong Kong), Chinese Taipei, Egypt, France, Germany, Greece, India, Italy, Japan, Korea, Monaco, the Netherlands, Spain, Sweden, Switzerland, Turkey and the USA.

The experts appointed in these cases came from Australia, Austria, Bangladesh, Belgium, Canada, China (both Mainland China and Hong Kong), Croatia, the Czech Republic, Denmark, France, India, Iran, Ireland, Italy, Lebanon, Mexico, Pakistan, Singapore, Switzerland, Turkey, the United Kingdom and the USA. When constituting the panels of experts, every attempt is made to avoid picking experts who share the parties' nationalities and to combine experts from different regions who have experience of the type of instrument concerned.

Dispute Boards

Dispute boards are independent standing bodies whose function is to help resolve disagreements and disputes as and when they arise during the performance of a mid- or long-term contract. Under the ICC Dispute Board Rules, which govern the creation and operation of dispute boards, parties may call upon ICC to assist at certain stages of the proceedings. In 2008, three requests were filed by parties from Africa, Asia and South America. All were for the appointment of dispute board members in construction cases. The persons selected by the ICC Dispute Board Centre for these cases came from Belgium, Chile, the United Kingdom and the USA.