Shattering Gender Stereotype in Indian Arbitration Act

Cognitive bias says if you?see?something continuously, you will start?believing it?to be?true. Extrapolating this phenomenon into a continuous reading of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”)(here), which employs gendered language with the use of only male pronouns would mean inculcating a false belief that the arbitration sphere is a boys’ club. Academicians, judges, lawyers, and experts reading the gendered language in the Arbitration Act on an everyday basis pushes the agenda of decreasing diversity in what is already called a closed shop of the Indian arbitration community.

The ICCA’s Report of Cross Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings 2022 (“Report”) talks about the causes of the lack of diversity in arbitration. It recognises the impact of “Unconscious Bias” as one of the single most influential factors for the disparity between male and female representation in Tribunals. The reading of the gendered language in the Arbitration Act feeds into this Unconscious bias, which remains unchecked. The Report suggests that using a gender-neutral pronoun can significantly mitigate this unconscious bias. Appendix H of the Report observes how almost all major arbitral institutions have amended their rules and draft guidance using gender-neutral terminology.

The Arbitration Act is ubiquitous with the pronouns importing the masculine gender and does not import female pronouns either explicitly or by incorporating a gender neutrality clause. Such lack of gender-neutral language accentuates discrimination based on one of the protective characteristics. The practice of using male pronouns tends to reinforce historic gender stereotypes. The colossalness of such?a reductionistic notion against females is reflected through the repetitive utterance of all stakeholders involved in the Arbitration Act through the prism of male pronouns. Such infelicity in the Arbitration Act undermines a society in which we believe men and women are equal.

If one were to count, the Arbitration Act mentions 39 times ‘his’, 27 times ‘he’, and 19 times ‘him’. The use of such pronouns cuts across all participants involved under the Arbitration Act, be it arbitrators, judges, experts, conciliators and even parties.

But it begs the question, how come only the fifth schedule and seventh schedule of the Arbitration Act appear to be gender-neutral with the use of both male and female pronouns? It is because the Arbitration Act was amended in 2015 to adopt the international best practices from the International Bar Association Guidelines on Conflict of Interest (“IBA Guidelines”) as discussed in a Blog (here). Considering that IBA Guidelines were drafted for both male and female arbitrators and the Arbitration Act implemented them word for word in the fifth and seventh schedules, explain their outlandishness.

Do Indian Arbitral Institutions lead by example?

Indian arbitral institutional rules take a heterogenous position, where some rules are gender neutral while others are not. Delhi International Arbitration Centre (“DIAC”) Rules 2018, wryly identifies an Arbitral Tribunal only with “his”, “he” and “him”. Facsimile, Indian Council of Arbitration (“ICA”) Rules on Domestic Arbitration, 2022, do not make use of any gender-neutral clause to enable the male pronouns to apply also to persons of the feminine gender. However, Mumbai Centre for International Arbitration (“MCIA”) Rules, 2017 and the recently established International Arbitration and Mediation Centre (“IAMC”) Rules, 2022 are heedful of being gender-neutral.

The prejudice against the feminine gender in the institutional rules can be seen transposing into the number of female arbitrators being empanelled at the above arbitral institutions. Among the arbitrators empanelled with ICA, only 123 are females out of 2528, which is less than 5% (here). At DIAC, this figure is comparatively better, where 81 are female arbitrators out of 805, a ballpark of 10% (here) of arbitrators empanelled with the centre. The above figures surely paint a grim picture of the travesty of female representation in the pool of arbitrators.

Lessons from the West

The Law Commission of England in its recently published Consultation Paper (here) has suggested provisional law reform proposals in the English Arbitration Act, 1996. The paper has suggested two measures in the act for including diversity, one of which is to make the English Arbitration Act gender-neutral. Such a proposal has been motivated by an impetus to make English Arbitration Act less discriminatory. It emphasizes the government policy that primary legislation should be drafted in a gender-neutral way, so far as it is practicable to do so and stresses that English Arbitration Act should be amended in light of this government policy.

Singapore is one of the leading seats of arbitration and sets an epitome for introducing gender parity in its Domestic Arbitration Act, 2001 (here) and International Arbitration Act, 1994 (here). In lieu of using a gender-neutral clause as a crutch, Singapore in its arbitration acts, meticulously mentions both genders “his or her”, “him or her” and “he or she” in the use of pronouns throughout the text. This practice decimates the drafting habit of using in legislation pronouns of male gender and then relying on a statement to enable the pronouns to apply also to females which often offend notions of gender equality.

International Chamber of Commerce (“ICC”) Arbitration Rules, 2021 lay out a compelling solution to the predicament by un-employing the use of both male and female pronouns. The ICC Arbitration Rules make use of the word ‘the arbitrator’ in places where it needs to address the arbitral tribunal as a third person. Such practice showcases ICC’s initiative to foster gender diversity and reduce gender inequalities in arbitration. The Australian Centre for International Commercial Arbitration (“ACICA”) Rules, 2021 goes a step further in addressing the issue. Where possible, the ACICA Rules refer to ‘the arbitral tribunal’, rather than to ‘the arbitrator’ to be more gender neutral. Where a reference to ‘the arbitrator’ is necessary, the ACICA Rules refer to “he or she”.

Conclusion

Chief of Justice of India, Justice DY Chandrachud when speaking recently at the inaugural session of “Delhi Arbitration Weekend” organized by DIAC, underscored the significance of a “gender-diverse arbitral pool” and added that “the arbitration space can add heft to the mission to provide equal opportunity to men and women alike in the legal profession” (here). However, I believe, to expect arbitration to leave such a footprint in the legal profession would be utopian without gender sensitisation of the Arbitration Act.

Our language evolves with us and reflects on us as a society. That said, the use of gender-neutral language in the Arbitration Act is about clarity, inclusion and equality. The gender-neutral language aims to avoid word choices that may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm. It is clear from the above that we will not be the first Parliament or institution in the world to adopt gender-neutral drafting in the arbitration act. We will follow in the footsteps of other developed seats of arbitration, which embrace the principle of the gender-neutral arbitration act. Only by adopting the best international practices can India realise its dream of becoming an International Arbitration Hub, and gender neutrality is surely one of them.

?Vishal Aggarwal is a Dual Qualified Lawyer practising International Arbitration and Commercial Litigation. (*Views in this article are personal views of the author and are not representative of any organisation he is associated with)