Justice Hima Kohli Calls For Creation Of Specialized Arbitration Institutions And To Promote Gender Diversity Amongst Arbitrators

Supreme Court Judge Justice Hima Kohli delivered an address to commemorate International Arbitration Day (October 7) at an event hosted by The International Arbitration & Mediation Centre (IAMC), Hyderabad in collaboration with Shardul Amarchand Mangaldas & Company.

Justice Kohli commenced the address by giving a brief explanation about the historical background and significance of arbitration. She stated that arbitration in a structured might have gained prominence recently only. She stated that arbitration as a dispute resolutions process gained prominence due to its dynamicity and flexibility to develop, adapt and upgrade to meet the needs of its users.

Justice Kohli referred to ancient arbitration practices that existed in Middle Eastern regions and stated that it was the most relied upon method of dispute resolution in the Arab Community. She then mentioned that arbitration as a dispute resolution method was followed in Russia and under Roman laws also. Justice Kohli stated that Singapore which stands out as global hub for modern arbitration, from its early days, has followed dispute resolution methods espousing the valued principles of communal harmony and consensus-driven adjudication.

Justice Kohli then elaborated on the growth of arbitration in South Asia and Middle East. She stated that factors like community inclination, pro-arbitration approach of governments and Courts have led to the development of arbitration as a dispute resolution means in the countries of the Asia-Pacific region.

Regarding the growth of arbitration in Asia, she referred to the 2021 Survey conducted by Queen Mary University of London and stated that, out of the five most preferred arbitration institutions in the World, three are situated in Asia- Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC), China International Economic and Trade Arbitration Commission (CIETACT).

“The flavour of arbitration in Asia has been augmented by the generally pro-arbitration stance taken by countries in the region. Arbitration hubs and institutions in Asia have reached new heights in their growth and popularity, achieving stellar global rankings and an ever- growing number of case filings.”

Justice Kohli lauded the constructive steps undertaken in India for the growth of arbitration in the recent years.

“In recent years, India has also made significant strides in establishing itself as a reliable and trustworthy partner in arbitration services. The setting up of IAMC at Hyderabad along with other prominent arbitration institutions such as a) the Indian Council of Arbitration (ICA) – New Delhi; b) Delhi International Arbitration Centre (DIAC) – New Delhi; c) Mumbai Centre for International Arbitration (MCIA) – Mumbai; d) the Indian Chamber of Commerce’s (ICC) Council of Arbitration – Kolkata; and e) New Delhi International Arbitration Centre (NDIAC) – New Delhi are a prime example of the constructive step taken towards enhancing the Alternative Dispute Resolution (ADR) landscape of the country.”

She noticed that the prominence of arbitration institutions in India as well as globally points towards the need for evolving a Specialized Arbitration Bar which comprises of experts and legal practitioners dedicated to arbitration. Justice Kohli stated that arbitration will become the primary of mode of dispute resolution when this specialized bar will work along with leading arbitration institutions.

Justice Kohli shared her experience of chairing a session on ‘ADR in International Transactions’ at an International Conference organized by the Bar Counsel of India where she emphasized the need for creating a Specialized Arbitration Bar in India that will boost both domestic and international confidence in India as an arbitration hub. She also cited International Bar Association Arbitration Committee (the IBA Committee) as an example to this.

“Specialized Arbitration Bar will promote a cultural shift in the legal community, positioning arbitration as a niche field of expertise. It will attract fresh talent and, at some stage, perhaps call for specialised Arbitral Tribunals at High Courts and District levels, akin to Commercial Benches. Regular workshops and training sessions will streamline every facet of the arbitration process, from drafting to enforcement.”

In this regard, she pointed out that Attorney General of India, R. Venkataramani in a conference organized by India International Arbitration Centre (IIAC) mentioned about the creation of All India Arbitration Bar and that was a step in the right direction.

Going forward, Justice Kohli cited judicial decisions to the show Indian Judiciary’s unwavering support for the growth of arbitration process. The judiciary has adapted and responded to the new challenges faced in the field of arbitration by adopting a minimal intervention approach while dealing with arbitral awards, she stated:

“It was emphasised that courts should only act as an appellate authority and refrain from reassessing the merits of an arbitral award unless there are compelling reasons to interfere. This has conveyed a strong message to the global business community that India is committed to maintaining the sanctity of arbitration. The Indian judiciary’s commitment to enforcement of arbitral awards is equally unwavering.”

Lastly, Justice Kohli expressed her concerns regarding lack of diversity, including gender diversity amongst international arbitrators. She stated that gender-based diversity in arbitrators was essential for promoting inclusivity and fairness in dispute resolution.

She referred to a 2022 Updated Report published by the Cross- Institutional Task Force Cross- Institutional Task Force On Gender Diversity In Arbitral Appointments And Proceedings that was governed under the International Council for Commercial arbitration (ICCA). The report summarized data regarding gender diversity by analysing the appointments of female arbitrators and also identified opportunities and best practices for promoting gender diversity in international arbitration.

“The Report found that before the year 2015, women were a miniscule fraction of arbitrators. They accounted for five women (3.5%) in the population of 145 investment treaty arbitrators and that there were no tribunals composed of two or more women. However, there has been significant improvement in recent years. Between 2015 and 2021, the percentage of women appointed as arbitrators has nearly doubled from 12.6% to 26.1%.”

She mentioned that the increased number of women arbitrators was the result of the unceasing role played by arbitration institutions. She further continued,

“Between 2015 and 2020, at least a quarter of all the appointments by Arbitration institutions have been of women, increasing their share in the pie from 24.9% in 2015 to 37.9% in 2021. For co-arbitrator appointments, the percentage of women appointed has nearly tripled from 10.1% in 2015 to 27.1% in 2021.”

Justice Kohli also referred to the ERA (Equal Representation in Arbitration) Pledge drawn up by the members of the arbitration community for seeking to increase the number of women arbitrators for achieving fair representation. She stated that leading countries around the world were also striving to attain gender diversity in arbitration proceedings. She cited the example of Saudi Administrative Court of Appeal in Dammam that appointed its first female commercial disputes arbitrator in the year 2016.

She also cited various other ways for promoting women in the field of arbitration. She stated that arbitration institutions must develop systematic and collaborative strategies like:

“These include enhancing education and training through scholarships for women and representatives of other under-represented groups and revising institutional arbitration rules to appoint diverse arbitrators, particularly women, a standard practice in the selection process. Additionally, increasing awareness activities like the present one must be undertaken on a regular basis to update all stakeholders in international and domestic arbitrations including parties, General counsel, litigation lawyers and arbitrators, to bring a balance in making the appointments.”

Justice Kohli concluded by sharing her vision of having a brighter and harmonious future of global arbitration. She stated that cultivating an ecosystem of respect and mutual commitment will create a favorable environment which will help attain an equal and diversified arbitration framework.