Something I wrote a long time ago to take part in a writing competition.
When we talk about gender and ethnic diversity, what we are concerned about, I reckon, is not really about gender or ethnic, but the diversity of the mind and perspective. But because we are unable to define what is diversity of mind and perspective, especially on how our gender and ethnicity influences it, gender and ethnicity seem to be a starting point. However, what we are truly concerned about is how one would be inclined to think in a certain manner when one belongs to a particular gender group or ethnic group, and how that would impact one’s judgement. Hence, the matter at hand is not about gender or ethnicity, but of the mental framework in which one operates and the perspective that one holds, due to influences from one’s background. It is important to clarify this as the world is becoming more complicated. It is no longer an issue of having both males and females in the tribunal, since there are now non-binary genders recognised in some parts of the world. At the same time, sub cultures being formed due to globalisation where one may be born within a certain culture then migrating elsewhere or perhaps an embodiment of two or more ethnicity since it is very common for one to be having parents from different ethnicity, growing up with an influence from a diverse pool of culture. Hence, to solve the real issue of diversity, it is not having a checklist in which we tick off the requirement of having representatives from different sectors then closing the book and proceeding with the case, but an on-going approach in which we ask ourselves if we are being fair in our judgement or if there is any way that we could have done better to ensure that the process and outcome is fair and just.
Apart from the “real” impact of the delivery of justice, having diversity in the tribunal also has an impact on the perception of how justice is delivered and whether substantial processes are put in place to ensure that the outcome is delivered as fairly and as just as possible, whether or not such processes are truly beneficial or simply negligible to the judgement process. This is because such perception will determine if one were to partake in arbitration, or to seek alternatives, since if the process is pre-determined to be unjust or unfair, one may simply choose to abstain or to look elsewhere. This has two key impact. One being that the lesser one chooses to partake in arbitration, the smaller the market will be for arbitration, hence affect the overall income and development of the sector. The other being a more crucial one, in which one seeks resolution that falls outside of the legal framework, which promotes a bad moral outlook globally.
Judgement is crucial when it comes to arbitration since it involves justice. And justice is a universal value that humans seek to achieve. Despite that there is no present perfect system or implementation, it remains an ideal in which we strive for, so as to achieve peace and prosperity. There can be no peace nor prosperity without justice. We know it when something unjust happens, when our emotion rises, and it signals to us deep inside our guts that injustice have occurred. And this emotion is what drives revolutions throughout history. Despite that we have since moved on (for most part of the world) to seek the ideal value of justice through more peaceful means, it remains a strong driving force for our actions, compelling us to fight for what we think is right. Hence, it is of utmost importance that arbitration delivers the most ideal outcome that is as close as possible to the ideals of justice. For injustice often leads to undesirable outcomes as proven time and time throughout history.
If we agree that justice is a universal value of mankind, then we have to agree that it cannot, therefore, be on extreme ends when it falls under different culture. Hence, to deliver justice, we have to ensure that we are able to interpret it under different cultures and perspective, and after consideration, to deliver the most appropriate judgement. We have to take a moderate approach, in which moderation occurs through consultation from different angles. A virtue is a mean between extremes, as aptly put across by Aristotle. Without diversity in the tribunal, how can we deliver justice? Without diversity, or the extremes, how can we determine the “mean”?
Taking a more statistical approach, world trade has been increasing exponentially for the past two hundred years1. According to the World Trade Statistical Review 2019, world merchandise trade volume has increased for the past 10 years every year except for 20192. The world is trading more than ever, and e-commerce, advancement in transportation have made the world a smaller place. United States being one of the major players in the world makes an impact with every shift in her policies and approach. Despite that under the lead of President Donald Trump’s protectionist approach, global trade has taken a hit. It is not expected that global trade will cease to grow in the long term, especially when Donald Trump is limited by two terms in the office. This is evident by the fact that even as United States abstained from the Trans-Pacific Partnership (TPP), it was still completed by 11 other countries which accounted for more than 13 percent of the world’s GDP5. Furthermore, other major economies are initiating their own version of global trade initiative, such as China’s One Belt One Road Initiative and African Continental Free Trade Agreement inked just this year. Even within Singapore itself, free trade continues to be the focus, with Singapore signing an agreement with the European Union to remove nearly all custom duties between the two jurisdiction6. All these are signs that despite that there is a new wave of protectionism exacerbated by the United States, global trade remains likely to be the trend moving forward. With a diverse pool of organisations interacting with one another, do we not expect to see an increase in arbitration?
Since it is likely that arbitration is likely to increase, let us go back to the fundamentals of why arbitration is often chosen to resolve disputes as compared to other means. One of the key strengths of arbitration is that decisions by international arbitrators are recognized by more than 150 countries that have signed the convention on international arbitration; unlike courts, whose rulings apply only within national boundaries7. It is clear that arbitration is designed for an international audience, although it might not always be used for such purposes. When we do not ensure diversity in the tribunal, aren’t we going against the fundamental reason of why our clients seek this route of dispute resolution, where there is greater respect for an international profile? Without ensuring diversity in the tribunal, how can we convince our international audience that arbitration is the way to go for resolving disputes, for them to willingly partake in the process of arbitration? It is clear that without diversity in the tribunal, the difference between seeking arbitration and resolution in a domestic court may be diminished, hence reducing the competitive edge of arbitration over traditional dispute resolution means.
Furthermore, when it comes to gender diversity, with a more educated (and perhaps sensitive) population, people around the world are recognising the impact of gender issues in previously unnoticed areas. Even in our day to day use of languages, people are pointing up the fact that women are often unrepresented sufficiently, such as using words like “mankind”. By ignoring the diversity of gender in the tribunal is to open up a potential loophole in which can be exploited to critic the judgement. However, one main concern that I have would be that if the world is going to progress towards the stage where non-binary genders are the norm, must we then include representative from all different kinds of gender? However, this issue may not be a crucial one to address, at least at this point in time.
In conclusion, I believe that at this point in time, it is not a question of whether there is a diversity of ethnicity and gender, but rather diversity itself in general to ensure that the process of arbitration can be convincing to our clients and potential clients that it is a process in which a fair outcome can be achieved. Such concerns are real considering the background of our clients, since more than 64 percent of our cases in 2018 are international cases as compiled from 8 arbitration centres4. More importantly, it is crucial because ensuring diversity in the tribunal is a necessary step in ensuring that the judgment made is justified, since justice is a universal value of mankind with each inclusion of differing culture, we can align it more closely to the ideals of justice, even as it may not be something that is achievable perfectly. This is to ensure that individuals and organisations are able to believe in and partake in a process that is more aligned to good morals, rather than to seek alternative means to resolve disputes which may be more immoral, so as to achieve greater progress for humanity as a whole.