During the Delhi Arbitration Week, the Chief Justice of India expressed his belief that there is no justification for the exclusion of highly qualified Indian arbitrators from serving as arbitrators in disputes unrelated to Indian parties.
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NEW DELHI: Chief Justice of India (CJI) DY Chandrachud on Wednesday addressed the issue of the lack of representation of Indian arbitrators in international arbitration during the Delhi Arbitration Week on Wednesday. He emphasized the importance of enhancing diversity to mitigate biases in arbitral proceedings.
CJI Chandrachud highlighted the prevalent trend of appointing arbitrators primarily from North America and Western Europe, particularly men. He pointed out that a significant proportion of arbitrators selected by the International Chamber of Commerce hailed from five countries: the US, the UK, Switzerland, France, and Germany.
He remarked,
“Traditionally the arbitrator pools have been dominated by what was famously called persons who are pale, male, and stale,”
-underscoring the need for diversity in such panels.
Referring to a trademark case involving American rapper Jay-Z, CJI Chandrachud illustrated the correlation between the lack of diversity and concerns about bias. He recounted,
“What makes this case unique is the rap artist’s spirited invocation of the lack of racial diversity amongst the arbitrators as an obstacle to justice and the perception of impartiality. He (Jay Z) sought a temporary stay on the arbitration proceedings before the American Bar Association, alleging that there were not enough African American arbitrators in the pool, leaving him only an illusion of choice.”
Eventually, African-American arbitrators were appointed to the panel hearing the dispute. CJI Chandrachud noted,
“Most importantly, the Association also agreed to include eleven more African American candidates in its general pool of arbitrators.”
Advocating for the inclusion of more Indian arbitrators, he stated,
“Indian arbitrators are currently under-represented in international arbitrations…Going forward, I see no reason why highly qualified Indian arbitrators cannot be appointed as arbitrators in disputes that do not involve Indian parties as well, in the same way that experienced European arbitrators are often appointed in the disputes that no European connection.”
CJI Chandrachud delivered his remarks during the inaugural session of the Delhi Arbitration Week (DAW) 2024.
Addressing the audience, he emphasized the critical connection between diversity and the perception of arbitral forums as impartial platforms.
“The value that diversity in arbitrator appointments brings is rooted in fact. Half of the world’s population is female. Ninety percent are below the age of 65. Three-fourths reside in developing countries of the global south,” he stated. “Diversity ensures that individuals with varied backgrounds and lived experiences are part of the process, bringing novel perspectives. Inclusive decision-making, supported by data, enhances group performance by drawing from heterogeneous experiences to reach well-thought-out decisions.”
CJI Chandrachud also highlighted the advantages of diversifying beyond the commonly chosen hubs of international commercial arbitration.
“Expanding the locations where arbitration is conducted promotes the universal adoption of arbitration as an efficient dispute resolution mechanism,” he noted.
“It fosters the development of global expertise in arbitration and encourages diverse representation among arbitrators, legal counsel, and experts. Economically, broadening arbitration locations can help mitigate associated costs.”
-CJI added.
Regarding the use of Artificial Intelligence (AI) in arbitrator selection, CJI Chandrachud acknowledged its potential to reduce bias but cautioned against potential pitfalls.
“Artificial Intelligence offers objectivity in arbitrator selection, safeguarding against bias,”
-he explained.
“However, we must remain vigilant as AI solutions are not immune to bias. If the data used to train AI reflects biased patterns, the resulting decisions may also be biased.”
-CJI pointed out.
The session also featured contributions from Judge Judith Prakash of the Singapore Supreme Court and Acting Chief Justice Manmohan of the Delhi High Court.
Judge Prakash explored the theme of biases in arbitration and the role of courts and tribunals in her keynote address.
Acting Chief Justice Manmohan likened the five-day Delhi Arbitration Week to a cricket Test Match. He highlighted how arbitration empowers parties to select their judges, contributing to the flexibility and adaptability of the fora.
Click Here to Read Previous Reports of CJI Chandrachud
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