I. Prologue: Deconstructing diversity, legitimacy and innovation

The memorable words of Mahatma Ghandi ‘our ability to reach unity in diversity will be the beauty and the test of our civilization’ continue to inspire and inform our diversity initiatives across the globe. At the outset, however, it is important to examine the linguistic origins and sociological connotations of diversity, legitimacy and innovation in order to fully appreciate these terms and their impact on the future of international arbitration.

1. Innovation

Innovation comes from the Latin word ‘Innovationem’ which is a noun of action originating from ‘Innovare’. According to the Etymology Dictionary, ‘Innovare’ dates back to the 16th century (1504) and stems from the Latin word ‘innovates’ which is the past participle of Innovare. This term’s Latin origins refer to the definition ‘to renew or change’ (‘in-novus’).¹

Accordingly, ‘innovation’ is the process of renewal of an already existing matter. This evinces the inaccuracy of a common misconception associating ‘innovation’ with the introduction of something new. However, introducing something new is in fact an ‘invention’ or a ‘creation'. Similarly, this definition of innovation dispenses with another common misconception associating ‘innovation’ with ‘improvement’. Improvement naturally refers to carrying out the same task at a higher standard, while innovation entails carrying out a different task. In other words, whereas ‘improvement’ is doing the same thing better, ‘innovation’ is doing something different.²

This fundamental aspect of renewal underlines the necessity of a change. For social innovation to take place, it is necessary for people to change several aspects of their way of acting and thinking. Generally, this would entail a change in the decision-making methods. That said, in order to successfully implement innovation, people must be willing to do things differently and make choices outside of their normal course of action. This interpretation of social innovation can be understood as an adjustment, or a reinterpretation of a current solution in our society that would lead to a greater impact.³

2. Legitimacy

Legitimacy comes from the Medieval Latin word ‘legitimatus’ which is the past participle to ‘legitimare’ and means ‘make lawful’ or ‘declare to be lawful’ and from the Latin ‘legitimus’ which is ‘lawful’, originally, ‘fixed by law, in line with the law’, and they all date back to the end of the 16th century (1590).⁴ Basically, legitimacy is commonly defined as ‘a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and definitions’.⁵

Legitimacy can be categorized into three distinct configurations: (i) ‘legitimacy-as-property’, (ii) ‘legitimacy-as-process’ and (iii)‘legitimacy-as-perception’. ⁶ Due to the specific legal focus of the present article on the future of international arbitration, only ‘legitimacy-as-process’ will be examined.

‘Legitimacy as a process’ focuses on the different processes used to construct and nurture its existence and continuance rather than its properties or perceptions. At the heart of this specific configuration, legitimacy is not perceived as a stable state of equilibrium, but rather as an active continuous series of interactions that ‘must be repeatedly created, recreated, and conquered’⁷ and in which actors have demonstrated a high and sufficient level of agency.⁸ This almost directly mirrors the process for the legitimacy of arbitration, where ‘actors’ refer to arbitrators, counsel, experts and parties, and ‘interactions’ refer to the presentations of memoranda, reports, statements and hearings.

Accordingly, the legitimacy of proceedings is achieved by the real and fair interactions between the said actors. As will be further demonstrated below, diversity enriches such interactions and guarantees the achievement of the desired outcome, which ensures the legitimacy and success of the arbitration process.

3. Diversity

Diversity comes from the Latin word ‘diversitatem’ (nominative ‘diversitas’) and dates back to the 12th century. At that time, diversity meant ‘wickedness and perversity’ and had a very negative connotation since it was manifestly perceived as ‘being contrary to what is agreeable or right’.⁹

However, over the centuries, this negative connotation started to be nuanced and then disappeared. More specifically, in the 14th century, diversity alluded to ‘variety’ and ‘diverseness’. Approaching the late 14th century, it was slightly given a more neutral meaning which is ‘quality of being diverse’, ‘difference between two or more things or kinds’, ‘variety’, ‘separateness’ or ‘that, in which two things differ’.¹⁰ More radically, the 17^th century witnessed the obsolescence of the negative connotation of diversity. As of 1601 onwards, the benevolent concept of diversity victoriously emerged.¹¹

Thereafter, in the 18th century, the term diversity earned the collective ‘democratic’ connotation in which one faction was to be kept from arrogating all power. By that time, the common diversity categories such as ‘ethnicity’, ‘race’, ‘gender’ and ‘culture’ were not in mind when speaking of diversity.¹² Towards the end of the 20th century, the term diversity became a lot more focused, positively on ‘race’, ‘gender’, ‘ethnicity’, ‘culture’, etc. The differences between people noticed in such categories was perceived in a positive sense under the aegis of diversity.¹³

In light of the foregoing, the positive sociological connotation of diversity was gradually shaped and diversity became much desired and well in demand. Nowadays, ‘diversity’ denotes the recognition, tolerance and acceptance of our individual uniqueness and differences in race, ethnicity, gender, socio-economic status, age, physical abilities, religious beliefs, political beliefs and other ideologies. Diversity now defines and informs the way we think, the way we act, and our beliefs;¹⁴ it essentially revolves around understanding and accepting the fact that we are all different beings with a common fate. In a nutshell, it evokes tolerance, co-existence, cooperation and all-inclusiveness, which are all indispensable for the globalisation of international arbitration.

That said, ‘social diversity’ is perceived as a community that can openly and fearlessly accommodate individuals of different race, ethnicity, religious beliefs, socioeconomic status, language, geographical origin, gender and/or sexual orientation, in contribution towards the success of the society through understanding and respecting that a single member’s uniqueness is a positive point gained all around.¹⁵

One crucial point to note regarding diversity today is the ever-evolving nature of communities,¹⁶ due to the inevitable effect of globalisation trends that are powered by information and communication technologies, such that one single community’s diversity could influence another’s.¹⁷

II. The five shades of diversity

Generally speaking, one can think of ‘diversity’ as having five different shades, some of which are more visible than others. These five shades are as follows: (1) age/generational, (2) gender, (3) ethno-cultural, (4) professional and (5) socio-economic diversities.

1. Age/generational diversity

Generational diversity is the representation of a wide range of varying ages in a workplace or a community.¹⁸ A ‘generational cohort or group’ alludes to a group of people with similar birth years, history and collective personality as a result of their common experiences. This collective personality has been scientifically evidenced, such that any experiences or beliefs formed into the developmental ages of 5 to 18 can have a direct effect on personal core values.¹⁹

Ideally, a community (such as the global arbitration community) should have members from most or all of the jurisdictions forming part of that community. That said, one can distinguish four distinct generations in respect of ‘generational diversity’, these are:²⁰

• The Silent Generation: born before 1945 and many of which are retired.
• Baby Boomers: born between 1946 and 1964,²¹ these were post-war babies who grew up in the golden years that represented peace and their experience distinguishes them.²²
• Generation X: born between 1965 and 1980, these grew up in an era of increased expertise and specialization and witnessed the first glances of technology.²³
• Generation Y (also referred to as ‘Millennials’): born after 1980, these generally embrace multiculturalism and live by instantaneous communications.²⁴

Within the global arbitration community, ‘generational diversity’ would be of utmost benefit, where older generations can bring in experience, wisdom, strong work ethic and lead by example, and the younger generations can bring in elements of creativity, innovation, enthusiasm, specialisation and dedication.²⁵

Notwithstanding the above, ‘generational diversity’ may potentially give rise to certain challenges and intergenerational conflicts due to the differences in working styles, interests, punctuality, ability to use technology, approaches to change and analysis of issues. However, successful ‘generational diversity’ inevitably requires the global community of practitioners to accommodate the distinct needs, legitimate expectations and positive orientations of each generation.

2. Gender diversity

Gender diversity is another visible form of diversity, and, nowadays, is perceived as a prominent form of diversity that is subject to constant promotion and careful attention and occupies the lead spot within the ‘Equal Representation in International Arbitration Pledge’ (the ‘Pledge’).²⁶

The Pledge is amongst the most important initiatives dealing with ‘gender diversity’ and it aims, amongst other things, to increase, on an equal opportunity basis, the number of women appointed as arbitrators in order to achieve a fair and equitable representation of women in international arbitration,²⁷ without a ‘glass ceiling’.²⁸

Women underrepresentation in international arbitration is indeed a challenge. For example, although in 2015 and 2016, 67% of undergraduate law students were women and 61% of the admitted solicitors were women, only 18% of women became partners in magic circle law firms in 2015.²⁹ Whilst statistics have since become better, especially in light of the work undertaken by leading arbitral institutions, much remains to be done and initiatives are taking place on a daily basis to boost and achieve gender diversity within international arbitration.

Again, ‘gender diversity’ (as is the case with generational, ethnic and other forms of diversity) supports and boosts the legitimacy of international arbitration and brings into the mix different skills, perspectives and points of view to address the complex issues in dispute.³⁰

3. Ethno-cultural diversity

Ethno-cultural diversity ‘refers to both the number and the variation among groups defined by their cultural backgrounds and heritages’.³¹ Different ethno-cultural groups interpret reality in a different way and have different orientations that uniquely describe and predict the world around them.

The human brain may not always easily respond to differences, so when the brain experiences unfamiliar differences (whether national, linguistic, ethnic or racial), it automatically attempts to adjust by categorizing and classifying these differences into stereotypical and reflexive rationalizations.³² However, these stereotypical and reflexive rationalizations are not always correct or accurate. Thus, it is important to rise above stereotypical perceptions and embracing ethno-cultural diversity is of paramount importance in this regard; it helps us embrace differences, boosts tolerance and appreciate diversity in perceptions and approaches to complex decision-making processes.

Ethno-cultural diversity dispenses with the risk of ‘ethnocentrism’,³³ and arguably brings much value to international arbitration, as it truly demonstrates its global nature and showcases diversity at its best. Moreover, when ‘ethnocentricity’ is combined with ‘exceptionalism’ (i.e. a status permitting an individual, state, or party to differ from, and perhaps be superior to others),³⁴ this may lead to violence, aggression and threats in pursuit of the defense of one’s opinion and position.³⁵

Accordingly, ‘ethno-cultural diversity’ is not only ideal in showcasing the true face of international arbitration and its befitting role in supporting inclusivity, it is equally valuable in promoting collective decision-making, building bridges between different cultures and dispensing with typical misconceptions. These all contribute to better decision-making and to the legitimacy of the arbitration process.

4. Professional diversity

Professional diversity represents different educational and professional backgrounds within a community. ‘Professional diversity’ is also beneficial to international arbitration, especially that arbitrators do not need to be exclusively jurists; they could be of different background and fields, and it is this facet of diversity that brings diverse skill sets and specialisations to the world of international arbitration, which may indeed enrich the arbitration process.

That said, ‘professional diversity’ can play an important role in the world of international arbitration, since arbitrators and practitioners thinking from different perspectives and coming from various areas of expertise can offer out-of-the-box solutions to intricate issues in dispute. In a nutshell:

[The] overarching message is that a diverse legal profession is more just, productive and intelligent because diversity, both cognitive and cultural, often leads to better questions, analyses, solutions, and processes.³⁶

5. Socio-economic diversity

Socio-economic diversity is ‘based on a worker’s education and his[/her] financial status’;³⁷ it is an important component of diversity within any community, as it brings different backgrounds, ideas and knowledge into the mix.³⁸ In this regard, it is worth noting that socio-economic disparities are most obvious when it comes to education.³⁹

Socioeconomic diversity enables economically disadvantaged practitioners to participate in the world of international arbitration and to have an equal opportunity to advance in their careers. It promotes the participation of arbitrators and practitioners from economically disadvantaged communities and jurisdictions, which equally bring more legitimacy and more diversity to arbitration proceedings and to the arbitration community at large.

III. Diversity phobias in international arbitration

Whilst the international arbitration community continues to promote and support diversity across all its dimensions and shades to varying degrees, it should be noted that a fully-fledged embrace of diversity will not be complete until the international arbitration community is freed from the shackles of restraint represented in the prevailing ‘diversity phobias’, which curtail advancement on the diversity front.

Amongst the most dominant and common forms of ‘diversity phobias’ are ‘metasethiophobia’ (fear of change);⁴⁰ and ‘xenophobia’ (fear of the unknown/foreigners).⁴¹ The psychological barriers to diversity originate primarily from these two phobias naturally ingrained in humans.

Since times immemorial, humans have valued internal predispositions, heredity and genetics, that inevitably teach us to resist change mainly to always feel in control and to maintain our customs and traditions. However, these ingrained fears have the capacity to materialize into fully blown phobias, when they are irrational, intense, persistent and uncontrollable.

In cases of extreme ‘Metasethiophobia’, life can become very difficult and common symptoms may appear on the persons affected thereby.⁴² More specifically, ‘Metasethiophobia’ can negatively affect one’s professional and/or personal life. It is submitted that ‘Metasethiophobia’ can be accompanied by the following psychological and physical symptoms:

• the phobic person rejects anything and everything new and works tirelessly to maintain his/her ‘comfort zone’ unchangeable and impenetrable;
• the phobic person may also go to great lengths, break ties, strain relationships, lose allies or creates excuses to ensure that he/she remains at a standstill; and
• at times the phobic person becomes fully aware that his/her fear of change is irrational but he/she is unable and undesirous to overcome the same.

‘Metasethiophobia’ and ‘xenophobia’ are real and exist in our communities, including within the international arbitration community, albeit to a lesser degree, and it is these phobias that negatively impact inclinations towards international arbitration and the changes and innovations brought to the process on all levels. Moreover, these phobias also negatively affect users’ choices, support conservatism and resist evolution and positive change. Examples include the following:

• reluctance to choose a capable foreign counsel or arbitrator for fear of allocating power into their hands;
• hesitation towards approving an arbitration agreement subject to foreign norms and laws; and
• unwillingness to keep up with technological advancements and resisting the use of technology to support the arbitration process.

By and large, diversity should not be treated as an avoidable fear, but should be carefully considered, assessed and measured to ascertain how best it can assist with the betterment of arbitral proceedings.

IV. Prospects and opportunities: Why and how diversity matters?

International arbitration should be diverse. Diversity is key to (1) ensuring legitimacy and promoting inclusion, (2) supporting stabilization and evolution, and leading to more harmonisation on the (3) substantive and (4) procedural levels.

1. Legitimacy and inclusion

International arbitration inherently involves foreign norms, foreign counsel and foreign arbitrators interacting from different locations and different time zones, without imposing specific cultural patterns and/or norms. It is this diversity and interaction that gives the process its legitimacy by the parties’ consent and the users’ belief in the neutrality and effectiveness of the process.

Diversity also promotes more inclusion with the participation of more and more people from diverse backgrounds, cultures and jurisdictions, hence the proposed new term ‘arbitroversity’. It is submitted that ‘arbitroversity’ describes the belief in the importance of diversity in international arbitration.

That said, an ‘arbitroverse’ is someone who acknowledges and appreciates the fact that differences generate enriching effects to the world of international arbitration. An ‘arbitroverse’ does not only believe in, but also acts to support, the global inclusion of qualified individuals with diverse socio-cultural, ethno-racial, geo-political backgrounds that transcend age, gender and physical differences.

2. Stabilization and evolution

Generally speaking, the lack of diversity breeds several detrimental effects on the future of international arbitration and may likely lead to system destablisation and devolution. I set out below certain negative effects for the lack of diversity.

1. The lack of diversity breeds narrow-mindedness, which inhibits creativity, innovation and development from taking place.
2. The lack of diversity gives rise to legal and cultural polarisation. More specifically, a separation between legal matters and cultural issues could be injurious to any community.
3. The lack of diversity reduces competitiveness and leads to stagnation. It is common knowledge that healthy competition increases efficiency and allows for creativity and innovation to take place. Should everyone remain very similar in all aspects of life without a touch of uniqueness, there would be no need for competition or eagerness to progress in life.
4. The lack of diversity may cause a ‘disequilibrium’ and would destabilize the international arbitration system.

3. Harmonization on the substantive level

As explained above, embracing diversity leads to distilling more commonality from amongst the diverse backgrounds of players and participants, which may likely lead to more harmonisation.

Practice shows that arbitrators with diverse experiences and backgrounds are likely more tolerant and understanding of legal and cultural patterns and principles alien to them. They would also be more tolerant and less hostile to legal concepts that are alien to their own legal system. On a substantive level, the principles of good faith and contractual interpretation are clear examples of this positive impact of diversity on harmonising legal conceptions.

Notably, good faith is an outstanding example to consider. The term good faith originates from the Latin term ‘bona fide’, which encompasses, amongst other things, a sincere belief or motive without any malice or the desire to defraud others.⁴³ Good faith as a general and abstract principle is in someway or another existent and very relevant in many legal systems and is commonly invoked within the jurisprudence of international law and beyond.⁴⁴ Good faith is even codified under laws of many legal systems, such as Germany, France and the laws of many African and Arab jurisdictions.⁴⁵

More interestingly, even under English law, where courts and jurists have been resisting,⁴⁶ for decades, a general overarching duty of good faith, it remains possible to imply a said duty of good faith either in certain types of contracts (such as insurance contracts) or when the circumstances so warrant in light of the factual matrix of the case and the parties’ pleadings. ⁴⁷

At common law, ‘piecemeal solutions’ were developed at common law to deal with perceived unfairness and injustice that may result from not implying good faith in certain situations. Examples of such ‘piecemeal solutions’ include the doctrines of misrepresentation and mistake, undue influence, estoppel and other developments in equity.⁴⁸

Due to globalizing trends of interaction as well as cross pollination between legal systems in international trade, good faith – traditionally perceived to represent an area of significant substantive difference between civil law countries and English common law – has become a function of inductive and deductive approaches. In civil codes, it is pronounced, and in case law ‘piecemeal’ solutions exist as stated.⁴⁹

Also, if the contracting parties clearly incorporated a contractual duty of good faith in an English law governed contract, it is unexpected that English courts/arbitrators will dilute the value of this clear contractual obligation.

With diversity, increased levels of interaction and expanded exposure of the new generations of jurists to diverse legal systems, it will not come as a surprise if, in the near future, the development of good faith under English law moves closer to its civil law counterpart.

It is submitted that substantive harmonisation is a function of diversity and interaction and this will likely increase with increased diversity and exposure to diverse practices and principles across different legal systems.

4. Harmonization on the procedural level

On a procedural level, international arbitration has spawned its own culture that is distinct from the diverse national cultures constituting the system. Again, the diversity of the arbitrators, counsel and parties has impacted (and will continue to impact) the arbitration process and has given rise to internationally accepted and harmonized procedural rules that are utilized to resolve disputes that cut across different legal systems.⁵⁰ It has paved the way towards the adoption of globalised guidelines and globalised practices.

This procedural harmonisation leads to homogenisation and results in the development of a ‘third culture’⁵¹ within international arbitration as an outcome of interactions between stakeholders from different backgrounds and nationalities.

By and large, promoting diversity in arbitration and the interaction between practitioners and parties from diverse backgrounds and cultures create new opportunities for harmonised rules tailored for the international arbitration community irrespective of any inherent differences between the actors in the arbitration process. This offers ample opportunity for developing further ‘soft law’ instruments, apart from the guidelines already developed, such as the IBA Guidelines on Party Presentation (2013), the IBA Guidelines on Conflict of Interest (2004) and (2014) and the IBA Rules on the Taking of Evidence (1999) and (2010).

V. Epilogue: The truly internationalized future of international arbitration

A closer look at diversity suggests that it is both an ‘end’ in itself as well as a ‘mean to certain ends’, such as boosting legitimacy, inspiring trust and confidence and enhancing the decision-making process in international arbitration.

As detailed herein, diversity contributes to the proper evolution and development of international arbitration. However, to successfully achieve fully-fledged diversity, the international arbitration community must rise above any unconscionable bias towards specific shades of diversity.

Due to its international nature, its growing successes and systemic evolution, international arbitration cannot afford not to permit the free circulation of new blood in its veins and the introduction of new faces to the world of dispute resolution. Nowadays, international arbitration cannot be perceived as an exclusive group of professionals. This contributes to the legitimacy and global acceptance of international arbitration as the prominent mechanism for dispute resolution. It is in this spirit that Jan Paulsson has rightly asserted:

The international arbitral process will be rejected if it is perceived that the word ‘international’ means nothing more than that the arbitrants come from four corners of the world, but rights of advocacy and the power to decide are reserved to a small elite operating in few dominant cities.⁵²

Accordingly, all international arbitration players, including parties, institutions, counsel and arbitrators are destined to support diversity in international arbitration. Simply put, ‘[t]o achieve greater diversity, all actors playing a role in the field must act together’,⁵³ and arbitral institutions have indeed spearheaded the global diversity efforts such that there is a ‘current culture of inclusiveness that is diversifying arbitral institutions’.⁵⁴ For example, the ICC statistics show that the number of women appointed and confirmed nearly doubled over a period of three years (from 136 in 2015 to 273 in 2018), and in 2018, the number of younger arbitrators (under the age of 50) increased to 35%.⁵⁵

It is worth noting that it is not differences or diversities that divide us; it is the inability to comprehend, appreciate, respect, and embrace those differences and diversities and channel all this to the greater good of the arbitration process and its decision-making techniques and approaches. As stated by Benjamin Franklin ‘[i]f everyone is thinking alike, then nobody is thinking’; diversity presents the international arbitration community with unique opportunities to utilise collective talents, explore new skill sets and develop new approaches to complex procedural and substantive issues.

It is also submitted that there is a degree of inseparability or influence between legal rules and cultures, and in an international arbitration there may be several cultures at play and a lack of diversity may risk leading to legal and cultural polarization, which could have detrimental effects.⁵⁶

By and large, in our world, change is inevitable; in fact, it is often the constant reality, and in international arbitration diversity is the fuel that powers its evolution and drives its future trajectory. It has indeed been highlighted by Professor Tercier as follows:

[G]lobalised education had allowed the next generation of arbitration practitioners to engage in international studies and gain experience in both common and civil law jurisdictions. Such greater understanding of both legal systems will inevitably create more opportunities for dialogue between practitioners of different legal traditions.⁵⁷

This will undoubtedly lead to less polarization, more cosmopolitanism and better ability to distill commonalities and differences in a ‘truly diverse third cultured’ international arbitration community.

Finally, the importance of pluralism and diversity could not be overstated in international arbitration, hence the importance of the notion of ‘arbitroversity’, that is acknowledging and appreciating the fact that differences generate enriching effects to the world of international arbitration. There is indeed a necessity for continued global inclusion of qualified individuals with diverse socio-cultural, ethno-racial, geo-political backgrounds that transcend age, gender and physical differences. One finds no better words to end other than recall Octavio Paz’s memorable words on the ramifications of pluralism as opposed to monism, where he rightly states:

What sets worlds in motion is the interplay of differences, their attractions and repulsions. Life is plurality, death is uniformity. By suppressing differences and peculiarities, by eliminating different civilizations and cultures, progress weakens life and favors death. The ideal of a single civilization for everyone, implicit in the cult of progress and technique, impoverishes and mutilates us. Every view of the world that becomes extinct, every culture that disappears, diminishes a possibility of life.⁵⁸

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