Adv. Raghvendra Pratap Singh and Ms. Sonya Mohan[i]
“Diversity may be the hardest thing for the society to live with, and perhaps the most dangerous thing for a society to be without.”
-William Sloane Coffin Jr.
International Commercial Arbitrations have always been an intellectual treat to observe. The proceedings connecting the two disputing nations into the realization of creative solutions without court interference have forged a sense of world unity. Though Arbitration is consistently proving to be successful to its purpose, the authors wonder whether it has been actually true to its vision. As we know in its basic meaning, “International Commercial Arbitration is an innovation that is said to be an alternative method of resolving disputes between two private parties arising out of such commercial transactions arising transnational.” The most important feature of Arbitration, either domestic or international, is the selection of Arbitrators or the formation of a strong Arbitral Tribunal. But what exactly is the actual thought process and criteria considered behind the appointment of Arbitrators? And more importantly, is the process inclusive of everyone regardless of their background, gender, ethnicity or not? The authors through this Article pose a question of whether the International Arbitration process embraces diversity. The Authors shall discuss the said issue with the support of certain reliable empirical data and check as to how International Arbitration is bringing the participating nations closer and facilitating access to its regime. Also, the Article shall delve around issues of cultural inclusivity, promotion of gender uniformity, and lack of concern as an obstacle over access to International Arbitration.
Diversity in International Arbitration: The Present State
On 10th January 2017, Bryan Cave Leighton Paisner, an international law firm, leased an annual arbitration survey titled “Diversity in International Arbitration: Are we getting there?” The results of the said survey can be regarded as noteworthy and thought provoking. It was revealed that a total of 84% of Respondents thought there was prevalence of Male Arbitrators, 80% thought there was prevalence of White Arbitrators and 28% thought they lost on opportunities due to an young age. The report of the survey makes it clear that the placement of low priorities over gender and ethnicity indicate lack of sensitivity over diversity in the International disputes sector. It is true and a well-accepted fact that a highly experienced Arbitrator, such as a retired judge is desired by any party to the dispute. What is alarming is the least consideration given to let the process be arbitrated by persons reflecting younger age, gender, or ethnicity. It has to be brought to notice that there exists a psychological notion that might be called ‘legal notion’ which can actually administer thinking in the selection of Arbitral Tribunal. What predominantly matters here is the type and level of legal education imparted that influences Arbitral decision making. Consider a hypothetical situation in a country ‘A’ where legal education has been imparted in the most equitable manner, catering both sexes and the different races the desired equal opportunities. Thus, it shall be very likely that such a country like ‘A’ shall administer better accommodating strategies in the selection of Arbitral Tribunal thereby facilitating and accepting diversity in the Arbitration process. But is the notion true in practicalities, and more importantly, desirable?
Why Diversity is Desirable?
Considering the fact that International Commercial Arbitration brings two disputing parties closer to their problem-solving approach and the appointment of Arbitrators or the formation of the adjudicating body or the Arbitral Tribunal is done by the choice of the disputing parties, the authors contend whether does that really mean ignorance to certain crucial aspects as regards the appointment of women Arbitrators or racially different Arbitrator is okay?
To frame it in other words,
"If the end of the goal is achieved by duly appointing ‘elderly white male Arbitrators’ who are known to be well educated and seasoned with years of knowledge and vivid experiences, who actually would consider appointing novice Arbitrators or women candidates? Thus, having a short term and a self- interested view in the entire Arbitral Tribunal formation process is dangerous in nature.”
Diversity is desirable in International Commercial Arbitration especially for its own sustainability in the ‘justice-delivery’ system. The vision of greater transparency through the inclusion of people of diverse sexes, races, and regions shall ensure its legitimacy and call for more creative solutions to complex commercial issues. Concerns have been boldly presented stating that the quality of Arbitral Awards shall suffer if diversity is not given its due importance. Empirical studies are cited as finding that "the deliberative process before the arbitral tribunal is likely to be crucial and, therefore, the diversity of views may be fundamental for a fair process and outcome".
Women, Race & Diversity in International Arbitration
The 2017 Arbitration Survey has already answered about the decreasing percentage of women in Arbitration. This is a very alarming concern since the problem lies in the root regarding Equal Opportunities. There are various factors behind the lack of women representation in the field of Dispute Resolution. The key factor regarding the lack of successful female arbitrators is often called the “pipeline leak”. The “pipeline” can be thought as what are the different considerations required to make an impressive Curriculum Vitae as an Arbitrator in International Arbitration. In the survey it was observed that the considerations included education from good law schools, elite associations and considerable practical experiences. Considering the above stated context, the proportion of women undergoing quality legal education and practical skills observation is a burning question. This can be validated via, statistics report of 2015-16 as presented in the academic Article by Swiss Investment Arbitration Lawyer, Miss Caroline Dos Santos wherein it was demonstrated that 67.3% out of the 17,335 students in law at an undergraduate level were women. In 2015, 61% of the solicitors admitted to the roll were women. It was reported that only 18.8% of women lawyers could become Partners in the Law Firms. In the same vein, it can be observed that there exists a glass ceiling for women in the field of Disputes. Firstly, gaining of legal education is still not well prevalent, even if the same is acquired deserving a top-notch position in the Law Firms or even enrolling as Solicitors are not guaranteed.
Apart from gender concerns, race- regional disparity in the field of International Arbitration is quite alarming. A direct question can be posed to oneself. “Are we including Arbitrators from India, Africa, Vietnam, or Pacific countries?” Interestingly, recently the Vice President of the International Court of Justice, Judge Abdulqawi Ahmed Yusuf, from Somalia, gave a speech that there is a huge pressure for African countries to participate in international arbitration and Mr. Yusuf said that if the arbitration community does not welcome Africans, Africans will reject it. The availability of legal infrastructure and synchronized legal regime forms an essential precursor for the use of International Arbitration as a tool for solving disputes in the said countries. The “Model Law on International Commercial”, innovated by the UN Commission on International Trade Law can be regarded as an useful measure to amend the setbacks in this regard. The said Model Law assists in the preparation of draft laws for countries to bring in new or revised laws on international commercial arbitration in harmony with the New York Convention and other international standards. The same if adopted can do not let compromise the unique trade circumstances of the countries while matching to its best international practice. It is undeniable that the Pacific countries are working really hard to set their Arbitral mechanism working at a faster pace. The Arbitration law is observing a good increase especially Asia Pacific graduates in Arbitration related Masters in Law (LLM) are seen preferring Masters in the said subject area and securing jobs in foreign Law Firms (presently third only to Western Europe and Latin America). Also, many bring with them the knowledge back to their home countries thereby encouraging healthy developments in the cross border-Arbitral network.
Recent Development in the Indian Regime
The landmark decision of the Supreme Court of India in the case of ‘Bar Council of India v/s A.K Balaji & Ors’ wherein it was held that “foreign Lawyers and Law firms can conduct International Commercial Arbitrations in India where rules of Institutional Arbitration apply” is a welcome decision for enhancing access in International Arbitration in India. The bench had also stated that they could render legal advices to the Indian clientele strictly on a temporary basis and given that the foreign lawyers shall be under the surveillance of the applicable code of conduct as appreciated by the Laws of India governing the Indian Legal Practitioners. What is important to understand that the SC allowed foreign lawyers only ‘casual visits’ to India. It is to be noted that the said term is not explained in detail and the interpretation of the same has been left on the facts and circumstances of the issues arising in the future. The said judgment though is a remarkable in nature and promises access of opportunities in International Arbitration in India, but the same can be observed to be quite vague in its approach towards facilitation of a free environment for foreign lawyers. Thus, it is up to the nations to decide what equity measures can be undertaken to let the access to International Arbitrations not become a distant dream.
International Commercial Arbitration is posing as the future for the majority of nations actively involved in trade and other allied activities. Considering the very spirit of the due process involved in the selection of Arbitrators, an equal opportunity is not only a desire but a demand. To counter gender diversity, continuous efforts with regards to generous investments in Women Arbitrator skills education as well as mentorship programs for them have to be brought into existence. Now, it is the time that we tighten our belts and call for transparency in the system. In order to enhance gender, racial, and regional diversity, the ICC has taken the initiative of publishing on its website, the names and nationality of Arbitrators presiding by the pending and completed Arbitration matters. The Arbitration and Conciliation (Amendment) Act of 2019 promises colossal changes with respect to the Arbitration mechanism of India. The Amendment Act paints the picture of an ‘Arbitration Council’. The said amendments are more focused towards making Arbitration process speedier. What is interesting to find that there have been no specific reservations wrt women and also, novice Arbitrators may still feel shy in venturing into the said field. But with the increasing demand of ADR in India and vigilant amendments done frequently by the legislators, the said concerns shall be hopefully accommodated too. Thus, the goal of achieving Diversity and Access to International Arbitration might seem a little distant but is not impossible.
[i] Mr. Raghvendra Pratap Singh is an India qualified Advocate based in New Delhi, India, and is an Associate with Karanjawala and co. Advocates and Solicitors, New Delhi. His core area of practice is Arbitration and Commercial disputes He can be reached at email@example.com. Ms. Sonya Mohan is an incoming Advanced LLM (International Arbitration and Dispute Resolution) candidate (2021-22) at the University of Leiden, Netherlands. She can be reached at firstname.lastname@example.org.
Preferred Citation – Adv. Raghvendra Pratap Singh and Ms. Sonya Mohan, "The Glass Ceiling in International Commercial Arbitration: Analysis of Diversity and Accessibility", Arbitration & Corporate Law Review, Published on 15th September, 2020.
This article was reviewed by Bodhisattwa Majumder and Utsav Saxena.