Indian arbitrators under-represented in international arbitration: CJI DY Chandrachud

Chief Justice of India (CJI) DY Chandrachud on Wednesday spoke on the under-representation of Indian arbitrators in international arbitration, and highlighted the need for more diversity to weed out bias in arbitral proceedings. .He noted that a large number of persons chosen as arbitrators in international arbitration tend to be men from North America and Western Europe. In this regard, he observed that almost half of the arbitrators appointed by the International Chamber of Commerce came from five countries - namely the US, the UK, Switzerland, France and Germany. "Traditionally the arbitrator pools have been dominated by what was famously called persons who are pale, male, and stale," he commented. .He went on to speak of how a trademark case involving American rap artist Jay-Z served to illustrate the link between a lack of diversity and apprehensions of bias. "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," CJI Chandrachud recounted. Eventually African-American arbitrators were also appointed to the panel hearing the dispute. "Most importantly, the Association also agreed to include eleven more African American candidates in its general pool of arbitrators," CJI Chandrachud added. .Calling for the involvement of more Indian arbitrators, he said,"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," he said. .CJI Chandrachud was speaking at the inaugural session of the Delhi Arbitration Week (DAW) 2024..In his speech, he said that diversity in arbitration is linked to the perception of arbitral forums as neutral platforms."The value that diversity in arbitrator appointments brings is rooted in fact. Half of world population is female. Ninety percent are below the age of 65. Three-fourths resides in developing countries of the global south. Diversity does not achieve anything extraordinary but merely ensures that arbitration reflects realities of the world in which we live. Diversity ensures that individuals with varied bacgkrounds and lived experiences are a part of the process. Such persons bring novel perspectives with them. It is well established by data that inclusive decision making boosts performances as a group can now draw from heterogeneous experiences to arrive at a well-thought-out decision," he added..His address also touched upon the benefits of expanding beyond oft-opted "safe seats" of international commercial arbitration, namely those in London, Singapore, Paris, Geneva and Hongkong and the International Chamber of Commerce in New York and Zurich. "Adopting new seats of arbitration advocates for the universal adoption of arbitration as an efficient dispute resolution mechanism. It facilitates the development of global proficiency in arbitration. As this wealth of global knowledge and experience flourishes, it bring forth a diverse representation of backgrounds among abritrators, legal counsel and experts. Economically, expanding the locations where arbitration is conducted can mitigate associated costs," he said, on this aspect. .Notably, the Chief Justice also observed that the use of Artificial Intelligence (AI) in selective arbitrators could reduce bias, although such an approach should also be opted for with caution. "The selection of arbitrators by parties is often impacted by biases based on identity and even information deficits. In such a situation, Artificial Intelligence offers objectivity in arbitrator selection which often ensures that the selection of arbitrators is not impacted by bias in selection...At the same time, we must recognize that AI solutions are not completely from the threat of bias...If the information used to train the Artificial Intelligence platform reflects a biased pattern, the resulting decision may reflect the same bias," he said. .Judge of the Singapore Supreme Court Judith Prakash and Delhi High Court Acting Chief Justice Manmohan also spoke on the occasion.Justice Prakash in her keynote address dwelt on understanding biases in arbitration and the role of courts and tribunals.Justice Manmohan in his opening remarks stated that the five-day Delhi Arbitration Week was modelled along the lines of a cricket Test Match. He spoke of how arbitration allows parties to choose their own judges, making the fora more amorphous.