BusinessDay

“Diversity is a key strength of the ICC Court and essential to the legitimacy of international arbitration” – Claudia Salomon

The International Chamber of Commerce (ICC) International Court of Arbitration is recognized as the world’s leading arbitral institution. ICC’s annual Africa conference, a major forum for arbitration in Africa now in its sixth year, took place in Lagos, Nigeria on 1-3 June 2022. An ICC Institute of World Business Law Advanced Training on Assessment of Damages by Arbitrators also took place alongside the ICC Africa conference on 1 June. In this interview with Claudia Salomon, President, ICC Court of Arbitration, BusinessDay’s Onyinye Ukegbu, discusses the role of arbitration in the future of Africa, being the first female president of the ICC Court of Arbitration, and the importance of diversity. Excerpts below…

The ICC Africa highly anticipated conference, where you were the keynote speaker, took place earlier this month. Did it meet your expectations?

The conference far exceeded our expectations! Amazing energy, with attendees from across Africa and around the world. We were also so pleased to have the Nigerian Bar Association as a co-sponsor.

The theme of this year’s conference is “African Arbitration: Consolidation and Transformation”, how does the theme of this conference further the founding objectives of the Africa Commission?

ICC created the Africa Commission to build capacity in the region and enhance awareness of, and access to, ICC’s dispute settlement know-how and globally reputed services. The Commission aims to strengthen the arbitration infrastructure throughout the continent while engaging with a range of stakeholders to promote ICC Arbitration, as well as ICC’s alternative dispute resolution services. The ICC Africa Conference seeks to achieve these objectives, focused on building awareness of the ICC Court as the leading institution for resolving disputes.

The ICC International Court of Arbitration centenary is coming up in 2023, and the global arbitration community must be excited about that. Any plans to mark the event?

We will celebrate our Centenary throughout the year, with a series of events but most importantly with a series of initiatives focused on an innovative suite of services, to position the ICC Court into its next century.

My task is to ensure that the ICC Court not only retains its reputation as the world’s preferred arbitral institution but is recognized as the world’s leading provider of innovative dispute resolution – and dispute prevention – services into its next century and is trusted globally for its integrity. We provide access to justice and the rule of law to facilitate peace, prosperity, and opportunity through global trade. My vision is that ICC’s dispute resolution services will be the preferred, one-stop-shop for the dispute resolution – and dispute avoidance – needs of businesses everywhere.

Six years after the ERA pledge, we have a female president at the ICC Court of Arbitration. This is inspiring. What does this progress say about the future of diversity?

Diversity is a key strength of the ICC Court and essential to the legitimacy of international arbitration. With the most diverse ICC Court in its history, with 195 members from 120 countries, women in the majority and greater representation from Africa than ever before, we need to ensure we benefit from the full range of experiences and perspectives. This requires doing everything possible to create a safe and inclusive space that enables everyone to be their authentic self at the Court and in the broader international arbitration community, so we reflect the global business community.

We are seeing great strides in gender diversity in international arbitration – with a significant increase in the number of women appointed as arbitrators, taking leadership roles and shaping the field. I now have the pleasure of serving as an arbitrator with an all-women tribunal – with two former judges. But there is so much more work to be done. I want every woman interested in international arbitration to know they have a seat at the table.

We must be focused on diversity broadly defined including not only gender diversity but race and ethnicity, geography, age, socio-economic diversity, LGBTQIA and importantly, disability inclusion.

In my first days in office, the ICC Commission on Arbitration and ADR, on my recommendation, issued a global call for interested candidates to participate in a new Task Force on Disability Inclusion and International Arbitration. As we hopefully emerge out of the pandemic, we are at a pivotal moment in which we have the opportunity to reshape how we work and can ensure the active participation of all skilled practitioners, including those with disabilities.

More concrete steps to increase diversity and inclusion in international arbitration are to come.

You were appointed to your current role in July 2021, in the wave of the pandemic. In what ways have arbitration practices changed post-pandemic? For instance, is it more time and cost-effective now?

From the pandemic, we have seen that international arbitration can quickly adapt and embrace new technologies as essential tools for dispute resolution. In the early stage of the pandemic, ICC issued a guidance note on how to minimize, or even avoid, potential disruption by thoughtful use of case management tools. These included the use of video-conferencing, which has now become commonplace but also included consideration of legal or contract interpretation issues that may be decided on a preliminary basis to narrow the issues in dispute and the scope of issues that need to be decided in an evidentiary hearing. The guidance note is available in multiple languages including Chinese.

The 2021 ICC arbitration rules also made important changes, so ICC is even more efficient, flexible and embraces this digitalisation. The rules make clear that tribunals are empowered to conduct hearings in person and remotely to take into consideration the relevant facts and circumstances of the case. All filings are now electronic unless a party specifically requests that hard copies be served.

And the presumption that meetings and hearings will be in person has been flipped. Before the pandemic, we assumed evidentiary hearings would be in person unless there were very specific reasons for a witness or expert to testify remotely. Now, everyone needs to consider whether there’s a need or a strong desire to meet in person.

Read also: Social media regulation: A look at NITDA’s Code

So, when travel resumes, I expect it will be rare for a tribunal to conduct a procedural hearing in person, and video-conferencing will be the norm. For evidentiary hearings, there will certainly be more openness to video and hybrid hearings, although some parties will want to be in person for major matters.

Still, on cost-effectiveness, there is the belief that arbitration though efficient, is quite expensive. Are there any initiatives to make it more accessible?

Under ICC’s expedited procedures, introduced in 2017 and amended in 2021, claims involving amounts in dispute less than USD 3 million are resolved by a sole arbitrator, and an award is issued within six months of the case management conference. The fees for cases under the expedited procedures are also reduced by 20%. These expedited procedures were introduced to meet the demand for a lower cost, faster method for resolving disputes, and they have proved to be hugely popular and a big success. We have also seen companies even opting into the expedited procedures when the amounts in dispute exceed USD 100 million.

Looking ahead, we will focus on the needs of small and medium-sized enterprises (SMEs) that drive the global economy and have been most impacted by the pandemic. We know they need an effective means of resolving low-value disputes. We are working closely with the broader ICC, which is establishing Centres for Entrepreneurship throughout the world providing services and assisting SMEs.

In the past, you have talked about dispute prevention as an arbitration service of the ICC. Do envision this working past the contract drafting stage?

ICC has a suite of services available to assist with dispute prevention, including the ICC Dispute Board Rules, frequently used in the construction sector. Dispute boards are independent bodies designed to avoid and resolve disagreements between parties as they arise during the performance of an often long-term or mid-term contract. At any time a dispute board believes that a potential disagreement may be arising between the parties, the dispute board may raise the matter with the parties and encourage them to try to avoid the disagreement on their own without any further involvement of the dispute board. The ICC services under the new ICC Dispute Board Rules are administered by the ICC International Centre for ADR. Such services include, upon request of the parties, the appointment of Dispute Board members, dealing with a challenge raised against Dispute Board members, fixing their fees and review of dispute board decisions.

This May, the ICC recorded its 27,000th case, a dispute between parties from Africa in the energy sector. Why is this such a significant milestone?

The registered dispute is between parties from Africa active in the energy sector and will be administered by the ICC Court Secretariat out of Paris. The case showcases the true diversity of our caseload but also exemplifies why we care for the development of arbitration and ADR in Africa. In our 2021 case filings, we had 193 parties from 35 countries in Africa.

Former President, Alexis Mourre said, “the relevance of Africa for the court’s future cannot be overstated. As home to one of the fastest-growing economies, it is also the region with the greatest need for international investment and where the development of robust and high-quality dispute resolution services is most relevant.” What are the opportunities for ICC Africa that you see in the immediate, mid and long term?

In Africa, we see strong interest in ICC arbitration and our other dispute resolution services, and we only expect that to grow. As more businesses in Africa engage in cross-border disputes, they need a dispute resolution mechanism that meets their needs. The primary reason for selecting arbitration rather than litigation in cross-border contracts is the enforceability of the arbitral award. Under the New York Convention, arbitral awards are presumed to be enforceable, with little grounds for challenge, whereas there is no equivalent international treaty for court judgments. Businesses in Africa know that they can trust ICC when a dispute arises.

In a past interview, you said, “it is the strength of the global network of ICCs that enables us to reach out to the world, and the global business community”, – what are the significant strengths of the African Commission?

The development of arbitration and ADR in Africa has been a key focus for ICC in recent years. In 2018, the ICC Court established its Africa Commission to build capacity in the region, engage with a wider range of stakeholders across the continent and enhance awareness of, and access to, ICC’s dispute resolution know-how and services.

The Africa Commission continues to work hand in hand with the ICC Court’s Belt and Road Commission to drive the development of ICC’s existing procedures and infrastructure to support Belt and Road disputes, and in 2021 its renewed leadership was announced on the same day as the Continental launch of the ICC-ECA Centre of Entrepreneurship in Africa.

In the same year, ICC created an Africa Regional Director role to bolster the ICC Court’s outreach in Africa. Diamana Diawara was appointed to the role with a view to engaging with ICC stakeholders, including businesses, law firms, States and state-owned entities, as well as ICC’s Africa Action Network of national committees and chambers.

Also in 2021, ICC announced a pioneering Hold the Door Open programme, aiming to give young arbitration practitioners in Africa a unique opportunity to gain practical experience by observing arbitration hearings.

In a past interview, you mentioned that at the time you started to study and prepare as an Arbitrator, one of your professors had remarked that International arbitration is the new wave of the future. For young lawyers reading, can you foretell a new wave of the future?

New technologies will change the practice of arbitration. The tools available are rapidly shifting; while some tools create an opportunity for significant cost savings, others require new investments. This is a unique moment in time for the international arbitration community to embrace technology as an essential tool for efficiency and be in a position to handle the increased use of big data, blockchain technology, machine learning and text mining. While not replacing human judgment in the near term, predictive justice will be an element of decision-making.

Anything else you would like to add?

As the President of the ICC Court, I am focused on ensuring that every aspect of international arbitration has a client mindset. This means that the parties – essentially our clients – are the ones driving the service requirements. I believe the best way to identify what parties want in each particular case – and to improve our ability to respond to those desires – is to engage the parties themselves more deeply in the arbitral process. With this approach, the parties can have more control over the way in which the resolution of their dispute unfolds. Given the expanding role of in-house counsel over the last decade to more of a business strategist and risk manager, we have the opportunity to ensure that the arbitration process better reflects this role.

Get real time updates directly on you device, subscribe now.