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Diversity And International Arbitration: What Dispute Settlement Systems Foster Greater Diversity And Inclusion In International Investment And Commercial Arbitration?


September 30, 2022
7:00 am to 8:30 am EDT


Moderator: Kabir Duggal (Columbia Law School and Arnold & Porter)
Panelist: Amanda Lee (Arbitrator and Founder of Careers in Arbitration)
Panelist: May Tai (Herbert Smith Freehills)
Panelist: Gaela Gehring Flores (Allen & Overy) (TBC)
Panelist: Natalie Reid (Debevoise & Plimpton) (TBC)

Parties, including States and companies, have increased their awareness of the importance of diversity, and in some cases emphasize to counsel the relevance of selecting arbitrators from a broad pool of candidates including gender, geographic and cultural diversity. As in the case of rapper and media proprietor Jay Z — who initially complained about the virtual lack of African American candidates in the list of arbitrators provided by the American Arbitration Association (AAA), following which the AAA reasonably offered five African American candidates from which the parties could choose a three-member panel—heads of companies are increasingly more aware about the importance of having diverse and competent individuals as adjudicators. Query as to whether this important push for greater diversity is becoming—based on statistics and numbers—an increasing perceivable trend in international commercial and investment arbitration.

Gender, cultural, ethnic, and geographical diversity, added to diversity from various legal systems, may be in the psyche of younger public officials in charge of vetting candidates for appointment to tribunals in investment arbitrations or international commercial arbitrations involving State or State-owned companies. But the question is very practical: Instead of promoting diversity due to moral correctness, what may a party gain from a more diverse pool of arbitrators? The answer may be linked to ensuring fairness and real international due process as, in the words of Ula Cartwright-Finch, “increased diversity can help reduce cognitive biases to which homogenous groups are susceptible and improve the intelligent performance of three-member teams.”

While international arbitration centers appear to be an engine for change by proposing diverse candidates in their panels of arbitrators (for example, in 2020 the percentage of women sitting in ICC arbitral tribunals reached 23.4%, 37% of all arbitrators appointed by the Court were women, ICC arbitrators come from 92 different nationalities, and the seat of arbitrations has been located in 65 countries), a significant challenge remains in the appointment of arbitrators by parties. Clients and their counsel may have a larger pool of male and white arbitrators with a proven track record—and therefore more predictable—to choose from, than the pool of gender and ethnically diverse candidates. The road must start somewhere. Blunt commitments—such as the ICC World Council decision on gender diversity of full gender parity for the term 2018-2021 appointing 88 men and 88 women— could be replicated by other arbitration centers, and considered for ingenious initiatives on ethnic and geographic diversity. What initiatives are those?

In the conversation on diversity and international adjudication the big elephant—or at the very least a monstrous animal—in the room is whether permanent international courts may foster more diversity than arbitration tribunals whose periods expire with the life of each case. While the International Court of Justice, still in 2022, has only 4 female judges out of 15 seats (i.e., less than 26%), the Statute of the International Criminal Court provides that in selecting judges, the parties shall consider the representation of the principal legal systems of the world, equitable geographical representation, and fair representation of female and male adjudicators. What has been the performance of the ICC in terms of diversity? What system may foster greater diversity, the flexibility of international arbitration or an explicitly regulated-for-diversity permanent international court system?

This panel will explore, among other issues, (i) what is diversity and inclusion? Beyond gender diversity, which is essential, what other types of diversity—including ethnic, racial, and cultural diversity, as well as sexual orientation diversity— should dispute resolution in investment and international commercial arbitration be promoting? (ii) Whether international arbitration as we know it in investor-State arbitration, for example under ICSID, or in international commercial arbitration under the ICC, ICDR or similar rules, fosters and effectively promotes diversity and inclusion?, and (iii) are any of the current or proposed systems of adjudication in international law closer to achieving the objective of effectively encouraging diversity and inclusion, including the International Investment Court proposed in the CETA, the International Criminal Court , the WTO Appellate Body, international commercial arbitrations under the ICC, ICDR or similar rules, or any proposal on diversity and inclusion in UNCITRAL Working Group III?


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September 26 - September 30

September 26 - September 30

International Dispute Resolution and the Ukraine-Russia Crisis

World Arbitration Update (“WAU”) invites you to attend a 75-minute webinar discussion by leading practitioners in the international dispute resolution field on the recent developments concerning the intersection of dispute resolution and the Ukraine-Russia crisis. According to the Kyiv School of Economics, Ukraine has so far experienced economic damage amounting up to $600 billion. Over $10 billion in airplane assets have been reportedly stranded in Russia setting off potentially large insurance claims and related disputes. Yale School of Management has collected data showing that almost 1,000 companies have publicly announced they are voluntarily curtailing operations in Russia to some degree beyond the bare minimum legally required by international sanctions. The Russian parliament continues to consider the expropriation of foreign assets. International disputes involving Russia and Ukraine are arising from the crisis and more likely to follow. Our speakers will discuss related topics, including: the impact of sanctions, the proposed formation of an international claims commission for Ukraine, the impact of the crisis on the legal profession, the potential and current international forums in which Ukrainian businesses and investors could submit legal recourse to address the consequences of the war in Ukraine, as well as an update on the ICJ case, Ukraine v. Russian Federation.

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September 26 - September 30

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The Actions of Russia, Countermeasures and Resulting International Disputes, Including Investor-State and Commercial Arbitration

September 26 at 6:00 pm to 7:30 pm GMT



JULY 12, 2022


6:00 pm to 7:30 pm GMT


Moderators: Gene Burd (FisherBroyles) (TBC)

Presenter: Rob Houston (K&L Gates Straits Law LLC)

Panelist: Tatyana Slipachuk (Of Counsel at Chief Legal Department of the Ukrainian Parliament, Special Advisor at Sayenko Kharenko Law Firm) (TBC)

Panelist: Raja Bose (K&L Gates Straits Law LLC) (TBC)

Panelist: Derek Loh (Deputy Director-General (Economic & Social), Attorney-General’s Chambers, Singapore) (TBC)

Panelist: Simon Chesterman (Dean, National University of Singapore School of Law) 

In response to the imposition of international sanctions on Russia for its invasion of Ukraine, Russia has imposed sweeping economic measures on foreign investors from States it considers “unfriendly”, including Singapore, the UK, the US, and EU Member States.  Both international sanctions on Russia and Russia’s own economic measures on foreign investors have had wide-ranging impacts across global market sectors, affecting foreign investors from around the world both directly through compliance mechanisms and indirectly through international commercial contracts.   

However, a number of venues exist for the resolution of the wide range of disputes anticipated to result from the current crisis.  In particular, foreign investors may still seek protection under investment treaties.  Currently, there are 62 BITs in force between Russia and other States, including 27 States that Russia has determined to be “unfriendly” as a result of international sanctions imposed on Russia.  Such treaties generally include substantive obligations to promote and protect foreign investment (e.g., to provide fair and equitable treatment, not to undertake unlawful expropriation of foreign investments, etc.) as well as for access to investment treaty arbitration against the Host State in certain circumstances.  Such public international law obligations under international investment treaties now appear at odds, for example, with recent economic measures imposed by Russia against foreign investors including: 

  • Currency Transfer Restrictions 

  • Transaction Approval Requirements 

  • Prohibition of Foreign Currency Export 

  • Restrictions on Debt Repayment 

  • Prohibition of Certain Exports and Imports 

  • Non-Enforcement of Intellectual Property Rights 

Also, the Russian Duma has considered additional measures (which many anticipate to be expropriatory) to effect the transfer of ownership or operation of certain foreign investments where foreign investors have ceased operating in Russia in the current climate of international sanctions. The resulting international legal climate arising from Russia’s actions in Ukraine breaks new ground in public and private international law. Practitioners are therefore broadly anticipating a wave of disputes both in international commercial arbitration and in investor-State arbitration, including with respect to claims advanced by covered investors in investment treaty arbitration against Russia for economic measures like the above.   

This panel will explore the implications of these developments both from a global perspective and a regional perspective in Southeast Asia, highlighting the following key points of interest: 

  • The Current International Sanctions Climate 

  • Regional Focus on International Sanctions in Southeast Asia 

  • Consideration of Current Venues for Disputes Arising from the Invasion of Ukraine 

  • Potential Mechanisms for Foreign Investors to Pursue Claims Arising from the Conflict in Ukraine in Investment Treaty Arbitration 

  • Anticipated Disputes and Issues in International Commercial Arbitration Prompted by the Conflict in Ukraine 

  • The Current Landscape for Sovereign Immunity and the Potential for Enforcement of Arbitral Awards Against State Assets 

This program will provide a brief summary of recent developments in relation to Russia’s invasion of Ukraine and identify key legal issues, including the interplay between international sanctions and customary international law (e.g., the characterization of countermeasures and the application of the law of State Responsibility (including State Defences) in Public International Law as well as issues arising in Private International Law and International Commercial Arbitration (such as Force Majeure).  The panel discussion will be followed by a Q&A period as well as a networking session.