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Diversity in Arbitral Tribunals

We need diversity of thought in the world to face new challenges.

The words which appear above embrace within them, the multi-millionaire inventor of the World Wide Web, Professor Tim Berners Lee’s ideology, that diversity is a requirement to overcome developing obstacles. This notion of nexus between diversity and overcoming challenges can readily be applied to the realm of dispute resolution. In a globalized economy where each nation is growing at its own pace and legislating its typical rules on various subject areas of law, while simultaneously having an extreme degree of trade interaction giving birth to peculiar disputes on a regular basis, the proximity that arbitral institutions bring by encompassing stakeholders from varied ethnic backgrounds and their myriad conflicts within a shelter of well formulated rules is pleasantly welcomed.

Diversity – a natural phenomenon

Diversity (defined broadly as variety or variation)[1]... is the greatest wonder of this planet, says E.O. Wilson,[2] and must be treated more seriously as a global resource, to be indexed, used, and above all, preserved [3] and [d]iversity is the staff of economic life. [4] Diversity is a natural process resulting from present day trade interactions. It has bloomed to be inevitable and has touched every element of the economy and its institutions, only as a vital addition to economic evolution. In all presumptions, the diversity of individuals’ relationships is strongly correlated with the economic development of communities. Precisely, economic opportunities are more likely to come from contacts outside a tightly knit group[5].

Arbitral institutions are no exception to this notion and diversity as a concept is only to be encouraged for flourishing the trends within arbitral institutions. In the sphere of dispute resolution, recent chronicles have featured acute changes in terms of candidates participating as panellists in arbitral institutions and the nature of disputes coming up for resolution, largely resulting from a cycle of rapid market expansion and cross territorial trade exchanges.

Effect of diversity in the domain of arbitration

Increased people interaction has resulted to a rise in number and variation in the nature of arbitration disputes. As a corollary, the prevalence of national and international arbitral institutions has turned out to be uncontroversial. It is also true that diversity invites unavoidable complexities in international arbitration including socio legal differences, varied practice methods, ethnic miscellany, language barriers, etc. For example, arbitration involving parties from both civil and common law countries where the common law approach, at least in the United States, is to commence with ‘a short and plain statement of the claim’[6] and that the details of the claim will be developed in the course of discovery.

Per contra, continental Europeans expect a case to be fully developed before it is filed. They expect that the initial pleading - the statement of claim in arbitration - will not only include a full statement of the facts and the law upon which the claim is based, but also the ‘dossier’ of documents relied upon.[7] The contrast which emanates from the ethnic-legal diversity in parties is sensed at every tier of the proceeding starting from marking documents, witness testimony and legal arguments.

Thus, a foreseeable challenge is to be able to constitute a righteous and worthy arbitral tribunal which absorbs the perspectives of actual users and their counsel in actual word and spirit, while keeping intact, the legitimacy of the arbitral institution. But, what in the end is a righteous and legitimate arbitral tribunal?
  1. Tribunal which creates better ‘connect’

    The diversity notion has been discussed for long and the view that we should have more diversity in the arbitration community is one that has been met with general support.[8] However, the diversity debate should shift from actual legitimacy to the perception of legitimacy of the institution of international arbitration i.e., international arbitration must reflect the stakeholders who are its real users. If we aim to spread the tentacles of international arbitration and be the system that people turn to, then the current and prospective users have to embrace it.

    It is undeniable that statistics do play a role to attract people but what’s more significant in selecting an institution, is the ‘connect’ which is established when a party identifies that the adjudicator is more like itself and not by a mere belief in the available statistics. Example, an investor-state arbitration where most arbitrators are white males from Western Europe or North America in extreme contradiction to its actual users who are majorly Africans, Asians, Indians and Latin Americans. This clearly filters all the public rights of the actual users through the prism of arbitrators who do not reflect them. Simply put, prima facie, such a tribunal doesn’t feel right and so, there is no ‘connect’.
     
  2. A tribunal which is well represented

    An arbitral tribunal symbolises the notion of internationality as being the common interests of user states who approach that tribunal. Therefore, the legitimacy of the institution is protected by a varied arbitral tribunal which is always well represented with respect to both gender and ethnicity. A panel that does not include a diverse practitioner or woman neither represents the majority nor has the benefit of diverse perspectives. It is in essence, an incomplete and defective one.[9]

    A former federal judge of the United States named Deanell Tacha emphasized the significance of diversity amongst judges: When the judiciary is composed of people who all look the same way, speak the same way, and identify the same way, then there are many, many people in our country who don’t feel like the life experiences – and the resultant mindset – of the judge are the same as their own [10]

    Also, the need for representation has only aggravated today. For 2018, ICC registered a record number of cases filed. The top five countries with parties represented in cases are the United States (210), France (139), Brazil (117), Spain (110), and Germany (95). New arrivals to the top 10 countries’ ranking for 2018 included Turkey and the United Arab Emirates.

    The United Arab Emirates represented the eighth-highest number of parties in 2018 with 69. Meanwhile, Turkey climbed into the 2018 top 10 for the first time with 62 parties.[11] Further, according to the ICC report of the record number of countries representing in ICC Arbitration cases, from 11% in 2016, the number of States and State entities that were parties to arbitral proceedings initiated in 2017 rose to over 15%. This illustrates a growing need for diversity among arbitrators.


What is the benefit of diverse tribunals?

The answer is qualitative awards. Therefore, a secondary argument is that diversity does enhance the quality of the proceedings and a diverse tribunal is more prone to bringing up viewpoints leading to robust decision making. The diversity of a tribunal enriches it with quality of heterogeneous responses as different arbitrators develop unique solutions to the same conflicts. We do not require a tribunal comprising highly and only intellectual arbitrators because individuals who display incapability in one aspect of the dispute may infuse harmony and strength in another. Differing strengths act as consecrations and endow the tribunal with the power of diversity by which reliable awards can be manifested. Various studies have confirmed, not surprisingly that representativeness of judges improves perceived legitimacy of adjudicatory apparatus.

These studies suggest that we would all benefit from greater diversity among arbitrators.[12] Stakeholders have varied opinions on how such diversity impacts the quality of its outcome. Figure 1 summarizes data from the 2018 International Arbitration Survey[13] which shows 59% of the participants believe that diversity is pragmatic to a tribunal’s decision making.
Description Data
Depends on the particularities of the dispute in question 26%
Improvement in quality 22%
Diversity is inherently valuable 19%
Significant improvement in quality 18%
No appreciable difference in quality 13%
Can reduce quality 2%

Role of arbitral institutions

Arbitral institutions are an essential and credible intermediary between governments, businesses and other general users of international arbitration representing institutional cooperation at national and international levels. Parties in conflict coming from various nations have faith and look up to the institutions to obtain credible awards. Surely, everyone has a role in improving diversity but institutions are best placed to keep up with the evolution caused by diversity. Ensuring better representation in tribunals is also the responsibility of institutions because these arbitral institutions are organizations of the international community which in turn exists through the agentive structures of international institutions and internationality of the collective will of the states. [14]

Firstly, institutions are clearly aware of the ground reality regarding the number of arbitrators being appointed every year, their gender and the ethnicity. Hence, it is desirable that institutions spread awareness by publishing statistics about the gender and ethic or national identity of the appointed arbitrators[15] and act upon them. In fact, international arbitral institutions like ICC, SIAC and LCIA continue their concerted efforts to narrow gender and cultural disparities and have taken commendable efforts which are evidenced particularly by the sophisticated steps taken by these institutions. ICC principally believes that the professional, cultural and gender diversity of ICC Court members reflects the world-class standard and international reach of ICC Arbitration[16] and has published a full report of its 2017 ICC Dispute Resolution figures and for the first time, the statistical report was made available to the public free of charge. The same was also made available on the ICC Digital Library and ICC store.

The Court appointed a higher percentage of women (45%) versus the parties themselves (41%) and the co-arbitrators (13.7%).[17] ICC Court President Alexis Mourre emphasised on diversity and said: To have achieved full gender parity in the ICC Court is a major milestone in the history of international arbitration.

We are also extremely proud of the level of renewal marked by the new Court, with unprecedented regional diversity. [18] The most noticeable growth occurred in 2016, where the proportion of women arbitrators in ICC jumped from 10.4% in 2015 to 14.8% in 2016.[19] LCIA reported a higher total percentage of female arbitrator appointments. One in three (33%) arbitrator appointments by the LCIA in 2017 was a woman, compared to one in six (17%) for the parties and the co-arbitrators. In total, 24% of arbitrator appointments were women, a 3% increase from 2016.[20] 30% of SIAC’s arbitrator appointments were women, an increase of 7% from 2016.[21]

Secondly, they are in a position to frame rules laying down procedures of appointment of arbitrators and to decide the finality of the arbitral tribunal where parties fail to do so. Other stakeholders such as law firms, attorneys, academicians, users of arbitration and state bar associations can play an active advisory role. The institutions have autonomy to entrust themselves with the authority to decide upon the finality of an arbitral tribunal in case of inconsistency. In ICC, the decisions of the Court as to the appointment, confirmation, challenge or replacement of an arbitrator is final.[22] Under most of the arbitration rules, where the parties fail to decide upon an arbitral tribunal, the authority to appoint the arbitrator lies with the court.[23] Even in the Commercial Arbitration Rules of the American Arbitration Association, if any party fails to make the appointment within the specified period, the AAA shall make the appointment.[24] The LCIA too has the maximum command over appointment of arbitrators.[25] We see that institutions are able to take major decisions regarding the appointment of arbitrators.[26]

Hence, by having maximum power of choosing the presiding officer of the arbitral tribunal, they can ensure diversity. Institutions may adopt selection procedures such as the rooney rule in the National Football League, a classic example of affirmative action wherein a mandatory process to interview the diverse class should be adopted. However, it would not be mandatory to select someone. The idea is to put the diverse class in ‘front’ of the decision makers. In the NFL, by forcing the interviewers to see the African American candidates, the number of African American coaches and head coaches automatically went up.

Conclusion
In the future, we are going to need diverse sets of knowledge to be able to cope with uncertainties. Diversity gives us more solutions to face these uncertainties and these solutions lay the foundation for unique sets of knowledge. Having realized this, we see a clear drive among institutions to promote diversity as is evidenced by the Equal Representation in Arbitration Pledge. As Anselmo Trinidad Reyes has also said, arbitration institutions have a responsibility to constantly analyze their list and panel of arbitrators to work out the composition of ethnic diversity, women and young arbitrators and then send invites to balance the composition accordingly.

End-Notes:
  1. MERRIAM-WEBSTER (11th ed. 2012
  2. E.O. WILSON, BIODIVERSITY, Editor’s Foreword v (E.O. Wilson ed., 1988)
  3. ibid, at 3 in chapter titled The Current State of Biological Diversity
  4. Sherwin Rosen, Markets and Diversity, 92 AM. ECON. REV. 1, Abstract (2002)
  5. Nathan Eagle et al, Network Diversity and Economic Development Science, 328, Science (2010); See https://science.sciencemag.org/content/328/5981/1029
  6. Federal Rule of Civil Procedure, 8(a)
  7. INTERNATIONAL ARBITRATION AND MEDIATION FROM THE PROFESSIONAL'S PERSPECTIVE 46 (Anita Alibekova & Robert Carrow, 2007
  8. Jackie van Haersolte-van Hof, Diversity; why it matters and what we can all do about it, Summer Edition 2015 of the Scottish Arbitration Centre Newsletter, July 25, 2015
  9. Gary L. Benton, Let’s Stop Talking About the Arbitrator Diversity Problem, KLUWER ARBITRATION BLOG (January 14, 2018), http://arbitrationblog.kluwerarbitration.com/2018/01/14/post/
  10. Tacha Deanell, Diversity in the Judiciary: A Conversation with Deanell Tacha, 59 KAN LAW REV 1037 (2011)
  11. ICC Arbitration figures reveal new record for awards in 2018, ICC (11 June 2019) https://iccwbo.org/media-wall/news-speeches/icc-arbitration-figures-reveal-new-record-cases-awards-2018/>
  12. Catherine A. Rogers and Louise Barrington, Mirèze Philippe, Join in the Campaign on Women Arbitrators: Co-sponsored by Arbitrator Intelligence and Arbitral Women, KLUWER ARBITRATION BLOG (December 3, 2018),http://arbitrationblog.kluwerarbitration.com/2018/12/03/join-in-the-campaign-on-women-arbitrators-co-sponsored-by-arbitrator-intelligence-and-arbitralwomen/
  13. International Arbitration Survey: The Evolution of International Arbitration - eighth empirical survey conducted by the school of International Arbitration at Queen Mary University of London in partnership with White and Case LLP, 2018, http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey-report.pdf
  14. Ellis, David C. On the Possibility of ‘International Community.’ International Studies Review, vol. 11, no. 1, 2009, pp. 1 - 26. Cited pg 5.
  15. Bryan Cave Leighton Paisner: International Arbitration Survey: Diversity on arbitral tribunals, BERWIN LEIGHTON_PAISNER,https://www.bclplaw.com/images/content/1/5/v1/150194/FINAL-Arbitration_Survey_Report.pdf >
  16. Diversity in arbitration, INTERNATIONAL CHAMBER OF COMMERCE, https://iccwbo.org/global-issues-trends/diversity/diversity-in-arbitration/
  17. ICC court releases full statistical report for 2017, INTERNATIONAL CHAMBER OF COMMERCE (July 31, 2018), https://iccwbo.org/media-wall/news-speeches/icc-court-releases-full-statistical-report-for-2017/
  18. ICC renews Alexis Mourre as President and nominates court with full gender parity and unprecedented diversity, INTERNATIONAL CHAMBER OF COMMERCE (June 21, 2018), https://iccwbo.org/media-wall/news-speeches/icc-renews-alexis-mourre-president-nominates-court-full-gender-parity-unprecedented-diversity/> accessed on 8th July 2019
  19. How Has Female Participation at ICC Evolved, ICC Dispute Resolution Bulletin 2017 Issue 3, at pg 38, https://s3.amazonaws.com/cdn-arbitralwomen/wp-content/uploads/2018/08/2017-How-has-Female-Participation-at-ICC-evolved.pdf
  20. Charity R. Kirby, 2017 Facts and Figures: ICC, LCIA, SIAC, THOMPSON AND REUTERS - PRACTICAL LAW ARBITRATION BLOG (October 5, 2018) http://arbitrationblog.practicallaw.com/2017-facts-and-figures-icc-lcia-siac/>
  21. ibid
  22. Article 11(4) - ICC Arbitral Rules, ICC Publication 880-4 ENG
  23. ibid, Article 12(3)
  24. R-13(c) Commercial Arbitration Rules - AAA https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdf>
  25. Article 5 LCIA-MIAC RULES 2018
  26. GREENWOOD LUCY/BAKER MARK, Getting a Better Balance on International Arbitration Tribunals, 28 The Journal of the London Court of International Arbitration, 653 (2012).
Written By: For queries, contact author at: [email protected]  

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