On the occasion of the 31st Vis Moot, Baker McKenzie and the Moot Alumni Association supported by the ICC have joined forces to raise awareness on the impact of disability inclusion in international arbitration. The event took place on 26 March 2024 in the form of two panel discussions: While the first panel dealt with hypothetical scenarios where issues of disability inclusion may arise in arbitration, the second panel spurred a discussion and exchange where we stand in terms of disability inclusion and what the perspectives are for its development in the field of arbitration.
While historically there has been a strong focus on gender, ethnic, and generational diversity within international arbitration, disability inclusion is only now rising to the forefront of our collective agenda. In the following, a brief synopsis of the topic is provided.
1. International arbitration community and diversity
The international law community was once described as an “invisible college made up almost entirely of upper-class, European, French-speaking, male lawyers who knew or were related to each other“.[1] Even though this description didn’t refer purely to arbitration practitioners, they definitely fell into that category.
The past decade brought a lot of change to the structure of this “invisible college“. One of the most prominent arbitral institutions, International Chamber of Commerce (ICC) has adopted a “diversity policy” and released a Note to National Committees and Groups on the proposal of Arbitrators in 2022 by which it has committed to promote diversity and inclusion in arbitration.
This, however, did not include people with disabilities who currently account for 16% of the world population, making them the world’s largest minority.[2]
It is unclear why the rights of individuals with disabilities that have been in the center of many arbitral disputes under the American with Disability Act (ADA), only recently became a topic in the context of access to arbitral proceedings.[3]
2. First step towards disability inclusion in international arbitration
On 30 October 2023, the ICC published a Guide on Disability Inclusion in International Arbitration and ADR (“Guide“), the first comprehensive document in international arbitration and ADR concerning disability inclusion.
This was initiated by Claudia Salomon, President of the ICC International Arbitration Court, in 2021. She recognized the issue of disability inclusion in arbitration, after a hearing where one of the counsels had to remove himself from the chamber to take his insulin jab. She realized that during her whole career, she never heard anyone offer accommodation to an individual with disability in the proceedings.[4]
On 3 December 2021, a “new” task force on disability inclusion in international arbitration and ADR was established including over 50 members from 26 different jurisdictions. After a year and a half of extensive work, the ICC issued a comprehensive guide to address disability inclusion in arbitration.
3. The ICC Guide
The Guide aims at creating awareness and provides a toolkit for practitioners, arbitrators, arbitral institutions, and associations to accommodate people with disabilities in arbitral and ADR proceedings. It emphasizes the importance of promotion of disability inclusion to foster an accessible environment for all.
The following overview summarizes the key points of the Guide and its implications for practitioners and stakeholders:
Roadmap for practitioners and institutions
The Guide sets out recommendations to improve inclusion of people with disability in arbitration and ADR. The recommendations serve as a roadmap for practitioners to effectively resolve issues that could arise when a person with disability is involved in the proceedings.
To facilitate the implementation of the recommendations, the Guide offers a Disability Inclusion Toolkit. This includes sample language for disclosure of disability in procedural orders and/or the case management conference, guidance for tribunals when they must decide on reasonable accommodation as well as a “mindfulness exercise” to prevent potential misunderstandings that may arise by using negligent language or lack of understanding of an individual’s situation.
Definition of disability based on International Legal Frameworks and Standards
The Guide includes a definition of “disability” which acknowledges international legal frameworks but points out that disability requires a dynamic understanding to effectively be included in arbitration. Accordingly, disability in the context of arbitration is defined as “an evolving concept that should be construed in the particular context of international arbitration“. This implies that disability should be construed broadly and that appropriate steps to ensure equal treatment will depend on each individual situation.
Reasonable accommodation
The Guide emphasizes the importance of reasonable accommodation to an individual with disability participating in arbitration. This refers to a modification or adjustment to proceedings that would enable a person with disability to fully participate without imposing significant difficulty or expenses to other parties involved. Reasonable accommodation should be tailored to individual needs of participants involved.
Examples are the key
The Guide provides hypothetical situations of how inclusion of disability impacts proceedings and points out that different disability may imply a different level of accommodation. Tribunals need to assess each situation individually to decide on appropriate accommodation.
Hypothetical situations
By inclusion of individuals with disability in proceedings, the Guide enhances the legality of arbitral decisions, but also maintains the balance of interest of parties when deciding on reasonable accommodation.
The following scenarios illustrate situations of use and potential misuse of the Guide.
- Scenario 1:
At the Case Management Conference Claimant makes a request for a site visit to a plant in order for Tribunal to see the damages on the plumbing that are detrimental for Tribunal’s decision. Respondent objects because the plant isn’t accessible for its senior counsel who is in a wheelchair and would therefore not be able to move through the site premises.
The number one duty of the Tribunal is to make sure that the arbitral award is enforceable. Unequal representation could be a reason for the award to be set aside by court. Tribunal should determine how would providing accommodation impact the proceedings. For example, would this make the cost of arbitration significantly higher? To circumvent this, Tribunal could look for an alternative solution that puts Parties in an equal position. It could propose that it alone visits the site, while providing the Parties with a video stream or that only junior counsel attend the site visit. This way Parties will have equal representation in the proceedings.
- Scenario 2:
Respondent was given a room that is located in the basement far away from the hearing room but one of his counsels has a disability that makes him significantly slower. Considering that breaks usually last 15 minutes, Respondent’s representatives proposed that Claimant and Respondent switch rooms so that they would have equal time to talk with their representatives during break. Claimant disagrees and asserts that it was given this room because of the size of Claimant’s team. It points out that Respondent used the same room previously without objections and finds this to be a strategic attempt to use disability as an excuse for personal gain in the proceedings.
Tribunal is faced with a potential misuse of disability to disrupt the proceedings which could have a hard to determine. Tribunal needs to understand that a person can develop a disability or that disability may be of temporary nature. Tribunal could offer its room to Respondent and let Claimant keep the room that was allocated to it, presuming that the Tribunal has a room close to the hearing room. This way the Tribunal would not risk jeopardizing rights of either Party.
- Scenario 3:
At the hearing, Claimant makes a request to postpone the hearing because the key witness fell ill and is not able to testify. Respondent does not agree and asserts that this would result in significant increase of costs of the proceedings. Respondent explains that 50 other participants involved in the proceedings travelled to the hearing venue. Respondent also asserts that Claimant failed to provide any proof of the witnesses’ illness.
Considering the definition of reasonable accommodation in the United Nations Convention on Rights of People with Disability (CRPD), referred to in the Guide, states that reasonable accommodation is to be provided “so long as it does not impose a disproportionate or undue burden” Tribunal may propose to hear the witness later, in an online format to not increase costs of the proceedings.
The outlined cases highlight the need to balance principles of fairness, equality, and efficiency in arbitral proceedings with interests of both, the party requesting to accommodate a person with disability and the party “opposing” it. Tribunal must consider each specific situation in order to assure that accommodation is provided without unduly burdening either party or compromising the integrity of the proceedings because of an attempt to exploit disability for personal gain. By embracing the recommendations outlined in the Guide, stakeholders can work together to ensure that individuals with disabilities have equal access to justice and representation in the international dispute resolution community while safeguarding against potential exploitation of requests for reasonable accommodation.
[1]Reisman and Nigel Blackaby (eds), Arbitration Beyond Borders: Essays in Memory of Guillermo Aguilar Álvarez, (© Kluwer Law International; Kluwer Law International 2023), Kluwer Law International – Home (kluwerarbitration.com), pp. 471.
[2] WHO, https://www.who.int/news-room/fact-sheets/detail/disability-and-health.
[3] Ilias Bantekas, Disability and Transnational Arbitration: Human Rights Linkages and Reasonable Accommodations, (14 Wm. & Mary Bus. L. Rev. 551 2023), https://scholarship.law.wm.edu/ wmblr/vol14/iss3/3, pp. 553.
[4]Ibid.
