Users of international arbitration are familiar with the common criticism that arbitral tribunals in international arbitration tend to be old, male and stale. Further to this, there have been growing concerns and discussions around the subject of diversity in international arbitration. On 10 September 2021, during its Annual Congress, the Singapore International Arbitration Center held a lunchtime roundtable discussion on the subject ‘Shifting Paradigms in International Arbitration: Arbitral Tribunals, Party-Nominated Arbitrators and Diversity’. The roundtable discussion which was moderated by Kabir Singh, featured Foo Yuet Min, Ashish Kabra, Zhulkarnain Abdul Rahim, John Liu, Gitta Satryani and Myung-Ahn Kim. The panel addressed the meaning, scope, importance and type of diversity needed in international arbitration, the hallmarks of a diverse tribunal and the stakeholder with the responsibility of ensuring diversity in international arbitration.
Diversity in International Arbitration: Moving beyond Gender
When discussions on diversity arise in international arbitration, they frequently revolve around gender. However, the panellists of the roundtable discussion noted that beyond gender, there were other forms of diversity that were still left unaddressed in international arbitration. Ms Foo while stressing on the broad nature of diversity noted that diversity included a broad array of other areas including age, race, nationality and geographic representation. She explained that while there was no one definition for diversity, the hallmark of a truly diverse tribunal is the differences in perspectives and experiences. Mr Abdul Rahim on the other hand reiterated the importance of diversity, which leads to intellectual rigor, better decision making and increased neutrality of the panel, and opined that the most important aspect is intellectual diversity or diversity in knowledgebase.
Though desirable, diversity in international arbitration raises several concerns. One being the concern of symbolic tokenism, or a superficial compliance with diversity without recourse to merit. Ms Kim noted that the delineation of the nature of the dispute may assist in solving this concern. Whilst drawing insight from the investor-state dispute settlement (ISDS) approach, she explained that some disputes by nature determine the diverse class of persons, background and experiences required. For example, in a construction dispute, technical knowledge may be very pivotal.
Party Nominated Arbitrators and Diversity
The legitimacy of the arbitral process is built on the concept of party autonomy. In this context, it is the freedom of parties to select their arbitrators. The consequence of this, is parties’ selection of non-diverse arbitral tribunal members. Mr Kabra whilst providing an Indian perspective noted that although clients frequently request for well-known names in the arbitral circles to act as party-nominated arbitrators, he suggested that counsel now have the responsibility of advising their clients on diversity concerns in the selection of arbitrators, especially considering the need for their clients to make decisions based on environmental, social and governance (ESG) considerations. With the elevation of several female judges to the Supreme Court of India, Mr Kabra opined that this would increase the diversity in the pool of individuals selected as arbitrators in arbitrations in India.
Mr Liu who provided a Sino perspective noted that although PRC clients and arbitral institutions do not pay attention to gender diversity, they nonetheless emphasised a diversity in legal background of the panel. He however expressed optimism in this state of affairs in the near future by highlighting that there was an increase in female participation in the fields of litigation and arbitration.
Ms Satryani also provided an Indonesian perspective on the concerns of diversity. She explained that in Indonesia-seated arbitration, especially domestic arbitration, there was less consciousness about issues of diversity. However, for international arbitration, especially institutional arbitrations such as SIAC arbitrations, she noted that there was an increased consciousness of the issue of diversity. She explained that in this regard, there was more focus on cultural diversity, whether the arbitrator understands Indonesian business practices, than on gender or other forms of diversity.
The panellists of the roundtable discussion emphasised the importance of diversity but noted that counsel also has the duty to highlight the importance of diversity to their clients. In highlighting the importance of diversity for better decision making, Ms Kim noted that although it was difficult to empirically determine whether a diverse tribunal makes a better decision, her experience from practice seems to suggest that a diverse tribunal has the ability to make a fair decision and in the long run assist in avoiding the situation of an echo-chamber where personal views are reinforced.
In a bid to ensure diversity, there has been increased affirmative action in favour of previously underrepresented groups. However, this approach raises concerns of meritocracy. On this note, it may be important to take a cue from Maxi Scherer’s two-pronged approach. This is an approach where a large section of a diverse pool is first selected and then pruned to the most qualified.
In conclusion, having highlighted the relationship between party autonomy and the composition of an arbitral tribunal, there is the need for counsel to play an active role in emphasising the importance of diversity to their clients and encouraging them to consider having a more diverse tribunal. Arbitral institutions must also rise to this challenge and advocate for increased diversity (especially in relation to disability, nationality, age and race). Party autonomy and a diverse tribunal are parallel lines that can meet if stakeholders make a conscious effort at working towards it. Achieving diversity in arbitration is a duty for all stakeholders, including arbitral institutions, counsel and clients. Everyone must acknowledge this duty and take active steps at working towards it.