Navigating The Practicalities Of Achieving Diversity In Arbitration
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Navigating the Practicalities of Achieving Diversity in Arbitration
Available literature highlights that though most countries had their own form of private dispute settlement, similar to an unorganized form of arbitration, the development of modern international commercial arbitration, as it exists today, dates back to several concrete steps taken in the twentieth century by Western countries. Decades later, this Western influence continues to be highly pervasive and is one of the important contributing factors for practitioners from such regions enjoying the greatest number of appointments as arbitrators. This has led to serious debates revolving around diversity and inclusivity in arbitral tribunals. Through this research paper, the authors attempt to examine the various factors that affect these ideas of 'inclusivity' as well as 'diversity', and how these ideas are consistent or inconsistent with the fundamental principles underlying arbitration. The paper discusses various initiatives that have been undertaken to increase all forms of diversity - of nationality, race, gender, culture, and so on- and then evaluates the effectiveness of the same. It also analyzes the idea of 'familiarity' in the appointment of arbitrators, including the idea of an arbitrator's previous experience, and if at all it would be fair to ask parties to give up on their autonomy while pushing for diversity in the tribunal. The research is premised on the hypothesis that there exists an inherent tension between these ideas. Given that most legislations recognize the autonomy of contracting parties are extremely essential, any initiative seeking to increase diversity might turn out to be a complex one. The authors also discuss, as a case study, the structure of the Indian judicial system, which in the absence of any definite setup has struggled to create and sustain diversity, particularly from the gender vantage. The paper concludes by discussing plausible solutions, structures, and stakeholders, which if identified, as well as regulated efficiently, can play a significant role in pushing for such changes.
Diversity in International Arbitration
Author: Shahla F. Ali
language: en
Publisher: Edward Elgar Publishing
Release Date: 2022-11-04
After decades of focus on harmonization, which for too many represents no more than Western legal dominance and a largely homogeneous arbitration practitioner community, this ground-breaking book explores the increasing attention being paid to the need for greater diversity in the international arbitration ecosystem. It examines diversity in all its forms, investigating how best to develop an international arbitral order that is not just tolerant of diversity, but that sustains and promotes diversity in concert with harmonized practices.
Arbitrator Diversity
The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration's already less formal structure, one method for enhancing its legitimacy among diverse disputants would be to ensure greater diversity among those empowered to make decisions. Increasing diversity of neutral rosters--and more importantly, of the arbitrators ultimately selected from those rosters--may improve the public's perception of the fairness and impartiality of the arbitration process. Increasing arbitrator diversity will have other benefits as well, including enhancing equal protection, equal opportunity, and complete participation norms. This Article suggests approaches that arbitration providers and participants in the arbitral process might adopt to enhance diversity in arbitrator selection. In particular, this Article posits that, while party control over arbitrator selection is a hallmark of arbitration, unbridled party selection may play an integral role in reducing diversity in the arbitrators selected. Among other things, winnowing to a single arbitrator, which the parties often undertake with relatively little information, may lead parties to rely on heuristics that incorporate explicit or implicit biases. One way to combat such concerns may be to reduce--at least at the margins--the extent of party control over the selection process. More specifically, adjusting the selection process to include a limited appointment aspect, rather than the traditional strike and rank approach, may substantially promote diversity while still preserving a strong role for party participation in arbitrator selection. In addition to direct arbitrator appointment, this Article explores other approaches that might enhance diversity in the arbitrator corps, including creating permanent panels of arbitrators, publicizing information about individual arbitrators, and implementing arbitrator evaluation processes. The proposed approaches would retain a strong role for party autonomy in the selection process while also providing a greater likelihood for diversity in the outcome of that selection process, in turn enhancing public perceptions of the fairness of arbitration as a dispute resolution mechanism.