19 November 2019
SIAC-CIArb Debate 2019
By Eva Teh Jing Hui, Associate, K&L Gates Straits Law LLC

Each SIAC-CIArb Debate has featured thought-provoking topics and this year was no exception. The debate motion for this year was “This House Believes that the Days of the ‘Arbitration Heavyweights’ are Numbered”, with Professor Bernard Hanotiau (Member, SIAC Court of Arbitration; Partner, Hanotiau & van den Berg) and Ms Koh Swee Yen (Partner, WongPartnership LLP) as the proposition speakers, and Mr Jaikanth Shankar (Chief Executive Officer, Davinder Singh Chambers LLC) and Professor Lucy Reed (Vice-President, SIAC Court of Arbitration; Director, Centre for International Law (Singapore); Professor, Faculty of Law, National University of Singapore) as the opposition speakers. The debate attracted over 120 attendees.

Mr Paul Sandosham (Chairman, CIArb (Singapore branch); Partner, Clifford Chance), the moderator, started the night by pointing out that “heavyweight” was not intended to refer to any physical attributes. While this was met with some chuckles, it quickly became clear that the definition of “heavyweight” would be the deciding factor in the debate.

Professor Hanotiau kicked off the debate by painting a picture of what (or who) an “arbitration heavyweight” was by using the oft-repeated phrase “pale, male and stale”. His first point was that the majority of parties in arbitrations today are from developing countries and that arbitration panels should reflect the diversity of participants. His second point was that while arbitrators in the past were chosen through the “old boys” network, change has started with the Equal Representation in Arbitration Pledge. He also cited the African Promise, and noted that such initiatives have resulted in the appointment of more diverse arbitrators by raising the profiles of African arbitrators, while arbitration institutions were doing their part in diversifying institutional appointments.

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Members of the audience Left to Right: Jaikanth Shankar, Dr Jean Ho, Prof Bernard Hanotiau, Koh Swee Yen, Amanda Lees, Paul Sandosham, Andrew Pullen and Prof Lucy Reed

In opening for the opposition, Mr Shankar was quick to point out that he had been puzzled by the synopsis of the debate, which had referred to diversity as the key issue to be discussed. He shared that he had googled the word “heavyweight”, which apart from a category in boxing, was defined as “a person or thing that is important or serious and that other people notice”. To him then, the question at hand was “whether the days of the extraordinarily intelligent arbitrators were at an end”, and the answer to that was that it was clearly not. Mr Shankar quickly followed this deconstruction of the motion with a tongue-in-cheek application for early dismissal of the proposition’s arguments on the basis that there were no merits. Nevertheless, in addressing the proposition’s arguments and their definition of “heavyweight arbitrators” as the “pale, male, and stale” arbitrators, Mr Shankar made the observation that the proposition’s argument at its highest was that there was greater awareness and a push towards diversity of arbitrators. Unfortunately, he noted, the majority of appointments are made by parties and not institutions, and parties would not choose a less experienced arbitrator for the sake of diversity as diversity for the sake of diversity is meaningless.

Ms Koh, the second speaker in support of the motion, countered Mr Shankar’s position by emphasising the context of the motion, the “arbitration world”. She noted that within this community, the “heavyweights” were very much “pale, male, and stale”, and listed a host of impressive statistics on the age, gender and nationality of arbitrators today. Appealing to the younger and the young-at-heart in the audience, Ms Koh brought up Jay-Z (a rapper and entrepreneur), who had brought the issue of lack of diversity among arbitrators into the spotlight when he successfully argued before a court in New York that arbitration would be unfair because there were only two African-American arbitrators who were not conflicted in a list of more than 200 arbitrators proposed by the American Arbitration Association. Ms Koh noted as well that she had seen procedural orders that had not changed over a decade and remarked, “what does this say about arbitration which is supposed to be flexible?”.

The final speaker, Professor Reed, echoed Mr Shankar’s point on the definition of “heavyweight”. She expanded on his argument that diversity for the sake of diversity is meaningless. After all, arbitration is very much like a boxing match in terms of what is at stake, with the prize being a binding and final award that can only be set aside or appealed on few and narrow grounds. Playing on the comparison between arbitration and boxing, she made the point that arbitration, like boxing, has different weight divisions and in a high-stake arbitration match, no counsel would suggest a flyweight or even a middleweight arbitrator to their client. Conversely, she astutely observed that not all arbitrations required heavyweight arbitrators and there were other arbitrations for more junior arbitrators to cut their teeth on.

The judges, Dr Jean Ho (Associate Professor, Faculty of Law, National University of Singapore), Ms Amanda Lees (Partner, Simmons & Simmons LLP), and Mr Andrew Pullen (Barrister, Fountain Court Chambers), unanimously decided that the motion had been defeated, with the opposition’s definition of “Arbitration Heavyweight” ultimately swinging the debate in their favour. Mr Pullen observed that with the younger generation pushing to be the arbitration heavyweights of the future, there will always be heavyweights. On that positive note for the aspiring arbitrators in the audience, another edition of the SIAC-CIArb Debate was successfully concluded.

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