Liberalization of Indian market can lead to a more competitive arbitration landscape: ICC Court of Arbitration President Claudia Salomon

Claudia Salomon is the first woman President of the International Chamber of Commerce's International Court of Arbitration (ICC Court)..Salomon recently visited India for the sixth edition of the annual ICC India Arbitration Day. The conference also marked ICC's centenary celebration in Delhi, where the Chief Guest was Vice-President of India Jagdeep Dhankar..Bar & Bench's Pallavi Saluja caught up with Salomon at the Delhi conference for a quick interview. Salomon speaks about her role as the first woman President of ICC in its 100-year history, the challenges she has faced in her tenure so far, diversity in arbitrator appointments, how important is India for ICC and much more..Pallavi Saluja (PS): What were the major challenges you faced when you were elected as President of the ICC Court in 2021?.Claudia Salomon (CS): We live in a time of unprecedented change and complexity, including supply change disruptions, shifts in global trade and the introduction of cutting-edge technology. In that context, the ICC Court has taken decisive actions to innovate so that both large and small businesses can resolve their disputes efficiently, expeditiously and within a trustworthy legal framework.As 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 – drive the service requirements. The best way to identify what parties want in each case and to improve our ability to respond is to engage the parties themselves more deeply in the arbitral process. With this approach, the parties gain more control over how dispute resolution unfolds. Over the past decade, the in-house counsel role has expanded to be more of a business strategist and risk manager, so we are ensuring that the arbitration process better reflects this role.In this centenary year of the ICC Court, we are transforming how parties and other stakeholders access our services with the launch of ICC Case Connect, which now enables more streamlined communication and file-sharing among parties, the arbitral tribunal and case management teams..PS: The arbitration world is often referred to as an old boys' club. As the first woman President of the ICC Court, what changes are you making to bring in more diversity to the arbitration space in general and to the ICC in particular?.CS: The global business community rightly expects the arbitration community to reflect their diversity and values. We have made significant strides in increasing gender diversity: approximately 40% of arbitrator appointments by the ICC Court are women. The ICC Court has also recently introduced standard language in its model letters to parties and co-arbitrators, encouraging diversity when nominating arbitrators.We also released the Guide for Disability Inclusion in International Arbitration and ADR. This ground-breaking publication provides clear guidance to address and accommodate the needs of people with disabilities participating in arbitration and other alternative dispute resolution (ADR) procedures, or other activities and events in the field of dispute prevention and resolution.When circulating the agenda for the first case management conference or preliminary hearing, I urge parties and arbitrators to include a question about whether there are any disability inclusion issues which need to be considered. This is a small but important step that will change the conversation and help those with a disability..We have made significant strides in increasing gender diversity: approximately 40% of arbitrator appointments by the ICC Court are women.Claudia Salomon.PS: Speaking of diversity in appointments, how does the ICC identify Indian arbitrators given that there is no panel of arbitrators under the ICC Rules?.CS: About 75% of arbitrators in ICC arbitration are nominated by the parties or the co-arbitrators, with input from the parties. When the ICC Court makes the appointment, we seek to identify an arbitrator best suited for the case, taking into account a variety of factors, including the facts and circumstances of a particular case; level of experience as arbitrator required; area of expertise; place of arbitration; applicable law; amount in dispute; language; availability; and diversity - including but not limited to racial, ethnic, cultural, generational and gender.When we seek to appoint Indian arbitrators, either for cases seated in India or governed by Indian law or for other cases, we may also seek a proposal from the ICC India nominations committee..PS: As the ICC completes 100 years, how do you see the role of the institution evolving in the near future? How has it sought to maintain its status as the 'world’s preferred arbitral institution'?.CS: For 100 years, we have been at the forefront of supporting global trade and investment through our pioneering dispute prevention and resolution services. Remarkably, ICC played a seminal role in the creation of the legal framework for recognizing and enforcing arbitral awards, including the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).As we celebrate a century of service, we are taking this time to reflect on our journey and key milestones. At the same time, we have recommitted to our purpose to promote access to justice and the rule of law to everyone, every day, everywhere. At the start of 2023, we issued the Declaration on Dispute Prevention and Resolution, honouring the centenary of the ICC Court and setting out a vision to shape dispute resolution and prevention for the next century.As the President of the ICC Court, I am focused on ensuring that ICC’s dispute resolution services meet the evolving needs of global business. .PS: What do you make of the push to promote mediation as a method of dispute settlement (with the signing of the Singapore Convention in 2019)? How do you think this will affect parties' inclination to opt for arbitration?.CS: We are trying to ensure that companies have all they need to resolve disputes. Arbitration may be the only way to resolve the dispute. But through mediation or other techniques, the parties may be able to come to an amicable resolution - even if the arbitration has already started. We encourage and provide guidance on how to be proactive to mitigate risk – and minimize the likelihood of a dispute arising – or a dispute escalating.This is why the ICC Commission on Arbitration and ADR just released two new guides: one on Effective Conflict Management and another on Facilitating Settlement in International Arbitration. This delivers on our pledge to drive thought leadership in dispute prevention and resolution through innovative services, and best practices and standards that meet the evolving needs of an ever-wider range of businesses and markets..PS: How important is India for ICC? What do you make of India's potential to become an international arbitration hub?.CS: We are acutely aware of India’s crucial role in the global arbitration landscape. India has been a strong focus of our work, and Indian parties have consistently ranked among the top 10 in ICC arbitration. At the ICC Court, we have an Indian Vice-President (Khaitan & Co Partner Sanjeev Kapoor) among the 17 Vice-Presidents, plus two Court Members from India (Pallavi Shroff and Kunal Vajani). Indian lawyers also work at ICC, including in Delhi at ICC India. I have made two visits to India during my Presidency and am confident that there will be many more. We have an increasing number of Indian parties utilizing our services, requiring our commitment to be more present in India – in other words, to be local, yet global.Undoubtedly, India is an economic powerhouse with a rapidly growing GDP. This translates to increased commercial activity and unfortunately or not, more commercial disputes. India's arbitration potential lies in its ability to handle these disputes efficiently and effectively, attracting international parties seeking a neutral ground. Compared to other established arbitration hubs, India offers a significantly more cost-effective option with a large pool of talented lawyers and arbitrators. With the support of an active judiciary and government, I am confident that India can address challenges like efficiency in enforcement and make further progress by investing in its arbitral infrastructure. But this is easier said here than done: if history provides a lesson, we know that an entire ecosystem needs to be created and then thrive. .PS: What are the major arbitration trends you are seeing in India and Asia?.CS: An interesting trend in Asia is the increasing diversity of caseloads. The range of disputes resolved through arbitration is expanding beyond the traditional sectors like infrastructure and energy, to include technology, blockchain and environmental, social and governance (ESG) issues. We also see more intra-Asian disputes. Artificial intelligence (AI) and data analytics are increasingly being used to support arbitration for tasks such as document review and contract analysis. These technologies have the potential to further enhance the efficiency and effectiveness of arbitral proceedings.In India specifically, there is a growing trend to choose institutional arbitration even without a cross border element as parties have come to realise its benefits. We see this at the ICC Court, where cases involve only Indian parties that have chosen the ICC arbitration rules to administer disputes in India, with Indian law and Indian arbitrators..PS: How do you think the impending liberalization of the legal market in India will affect arbitration practitioners?.CS: Liberalizing the legal market will hold significant implications for the future of arbitration practice in India. Increased competition will drive innovation and more investment in arbitration infrastructure and the global exposure from collaborating with foreign firms has implications for new markets and growth. Arbitration practitioners will enhance cross-jurisdictional expertise by supporting innovation and improving service quality. By taking a measured approach, India can ensure that the liberalization leads to a more vibrant and competitive arbitration landscape, ultimately benefiting both practitioners and users of this vital dispute-resolution mechanism. It will become a global stage for Indian lawyers and their capabilities, and it would not be surprising to see foreign parties nominating Indian arbitrators in cases that may not have an India connection, just as Indian parties appoint foreign arbitrators. On the same note, it would be great for foreign lawyers to be involved and associated with a jurisdiction that is likely to fuel the next decade of growth. .By taking a measured approach, India can ensure that the liberalization leads to a more vibrant and competitive arbitration landscape...It will become a global stage for Indian lawyers and their capabilities, and it would not be surprising to see foreign parties nominating Indian arbitrators in cases that may not have an India connection.Claudia Salomon.PS: What is ICC’s strategy in Asia, considering that there are several other institutions like SIAC, HKIA, and LCIA competing here?.CS: The ICC Court is the only arbitral institution that is truly international and independent, and not tied to any geography or subject to shifting political winds. Unlike other arbitral institutions, we do not have the name of a city in our name, nor do we promote one city or governing law over another. ICC arbitrations are seated in more than 120 cities, and operate in more than a dozen languages, and under a wide variety of governing laws. Singapore is among the top 10 seats for ICC arbitration and the most popular one in Asia. But ICC arbitrations take place in Delhi, Mumbai and other cities in India. We are committed to working with the Indian legal and business community to strengthen the arbitration infrastructure and promote both arbitration in India and Indian arbitrators. We are focused on meeting the needs of Indian parties, regardless of where the arbitration takes place. For 100 years, businesses around the world have trusted ICC because they know that it understands the needs of global business and provides unrivaled service. It is my hope and belief that ICC is viewed as a trusted partner for Indian business.