Q&A with Claudia Salomon

Introduction

We speak with Claudia Salomon, recently appointed President of the ICC International Court of Arbitration, the first woman President of the ICC Court in its almost 100-year history.

Congratulations on your election. Please tell our readers a little about what your role as President of the ICC Court entails?

The ICC is recognized as the world’s leading arbitral institution. As the President of the ICC Court, I am focused on ensuring that ICC’s dispute resolution services meet the needs of global business.

The ICC Court ensures that the process works. This is the most diverse ICC Court in its history – with 195 Court members from 120 different countries, with more women than men, and more Court members from African countries than ever before.

Firstly, the ICC Court reviews draft awards before they are finalized to ensure that the arbitral tribunal has considered the issues to be decided, has taken into account all of the arguments of the parties, and that its reasoning is clear. Parties then know that they are getting what they bargained for – the best likelihood of an enforceable award.

Secondly, the ICC Court determines whether to accept or reject challenges to arbitrators, assessing their independence and impartiality, and the Court’s reasons are now provided to the parties if requested. This brings transparency to the process. Transparency equalizes access to important information. Instead of some participants in the process having exclusive knowledge based on their previous experience, all parties – wherever they are in the world – can get the information they need to make better decisions.

What excites you most about your new role?

I wanted this role because I really believe in the ICC – and its purpose. ICC is the global voice of business – founded in the wake of World War I, over 100 years ago, by a pioneering group of entrepreneurs, seeking to promote peace and prosperity through cross-border trade. They understood that to facilitate cross-border business, there needed to be a dispute resolution procedure that met the needs of global business. And they understood the importance of access to justice and the rule of law. That purpose is no less true than today. As cross-border business has continued to increase, businesses around the globe know that ICC is a trusted institution to resolve those disputes.

I wanted this role because I really believe in the ICC – and its purpose.

What are some of the key challenges facing you during your first term?

We are in a highly competitive environment, so I am focused on three key aspects:

First is that crucial moment when companies are entering into a contract and drafting a dispute resolution clause – what is going to make them insist on ICC arbitration and not some other method of resolving a dispute? General Counsel tell us that they use ICC arbitration because ICC is the institution they trust.

Second is the period of time from when an arbitration is filed until an award is issued, assuring that the service the parties receive exceeds their expectations and is transparent and predictable. ICC’s case management team is second to none.

Parties don’t want to be in an arbitration; they want to resolve their dispute.

Third is ensuring that we focus on the parties’ objectives when they are in an arbitration. Parties don’t want to be in an arbitration; they want to resolve their dispute.

We need to provide a suite of integrated services – the proverbial tools in a toolbox – to enable parties to achieve their objectives. To meet the needs of the global business community, we also must meet the needs of small and medium-size enterprises (SMEs) and the demand for additional ADR – and dispute prevention – services.

How do you feel to be the first woman elected as President of the ICC Court?

I am truly honored. And what a testament to my predecessor, Alexis Mourre, who had the audacity to insist on gender parity of the ICC Court in 2018. The significance of this change cannot be understated, given that the Court was only 10% women in 2015. I know I stand on the shoulders of those who came before me, and the generations of women who paved the way. And I am inspired by the words of U.S. Vice President Kamala Harris: “While I may be the first woman in this office, I will not be the last.”

What can be done (and by whom) to encourage more diversity in arbitrator appointments as well as more broadly in arbitration?

Diversity, broadly defined, is fundamental to the legitimacy of international arbitration – so we reflect the entire global business community and their values. 75% of all arbitrators appointed in ICC cases in 2020 were nominated by the parties (60%) or the co-arbitrators (15%) often with input, as we know, from the parties. Only 25% of arbitrators were selected by the ICC Court either as direct appointments or as a result of proposals through national committees or groups.

In 2020, 16% of the arbitrators nominated by the parties were women (compared to 11% in 2016); 28% of the chairs nominated by the co-arbitrators were women (compared to 13% in 2016), but 37% of the appointments by the ICC Court – either upon proposal of an ICC national committee or group or directly – were women (compared to 23% in 2016).

But if we are to see a sizable increase in the diversity of arbitrators, it will be important for the parties themselves to insist that their counsel provide diverse lists of arbitrators to consider.

Much work still needs to be done, and you can expect significant diversity initiatives involving concrete steps during my term, including working with the national committees to include diversity among the factors considered when making proposals of arbitrators. But if we are to see a sizable increase in the diversity of arbitrators, it will be important for the parties themselves to insist that their counsel provide diverse lists of arbitrators to consider. In-house counsel and outside counsel have a crucial role to play in ensuring that arbitrators in ICC cases reflect the increasing diversity of the global business community.

What other innovations is the ICC currently working on?

I am focused on ensuring that every aspect of international arbitration has a client mindset. This means that the parties – essentially our clients – are the ones driving the service requirements. I believe the best way to identify what parties want in each particular case – and to improve our ability to respond to those desires – is to engage the parties themselves more deeply in the arbitral process. With this approach, the parties can have more control over the way in which the resolution of their dispute unfolds. Given the expanding role of in-house counsel over the last decade to more of a business strategist and risk manager, we have the opportunity to ensure that the arbitration process better reflects this role.

Looking ahead, we will focus on the needs of SMEs)that drive the global economy and have been most impacted by the pandemic. We know they need an effective means of resolving low-value disputes. We are working closely with the broader ICC, which is establishing centres for entrepreneurship throughout the world providing services and assisting SMEs.

We are also focused on technology-related disputes, biotechnology, and artificial intelligence (AI). We will see tremendous and rapid growth in this area of highend manufacturing, and can expect an increase in such disputes. About 40% of ICC cases fall in the category of energy or construction and infrastructure, and we expect to see that trend to continue.

The 2020 ICC Dispute Resolution Statistics were recently published. In your view, what are the most important takeaways from that report?

The 2020 ICC Dispute Resolution Statistics revealed the highest number of registered cases with both the ICC International Court of Arbitration and the ICC International Centre for ADR. Of the cases registered in 2020, 929 cases were filed under the ICC Rules of Arbitration, while 17 were filed under the ICC Appointing Authority Rules.

The ICC International Centre for ADR also saw marked growth with 77 new cases in 2020. The registered cases were filed under the ICC Rules of Mediation, Expert Rules, Dispute Board Rules and DOCDEX Rules, marking the largest number of cases registered in a year for the Centre. This included 45 mediations, 22 requests for expertise, seven DOXDEX proceedings and three Dispute Board proceedings.

The 2020 statistics that tell a particularly compelling story of our global strength are the following:

• Parties were from 145 countries
• There were 1008 individual arbitrators of 92 nationalities
• ICC arbitrations were seated in 113 cities, in 65 countries
• Awards were drafted in 13 languages
• The average amount in dispute among the 1,833 pending cases was US $145 million
• The average amount in dispute for new cases filed was US $54 million
• 38% of newly registered cases involved an amount in

2020 was marked by the start of COVID-19 global pandemic. What do you think are the most important lessons for the arbitration community that came to light as a result of the pandemic?

As we hopefully emerge out of the pandemic, we are at a pivotal moment in which we have the opportunity to reshape how we work and can ensure the active participation of all skilled practitioners, including those with disabilities. In my first days in office, the ICC Commission on Arbitration and ADR, on my recommendation, issued a global call for interested candidates to participate in a new Task Force on Disability Inclusion and International Arbitration.

So, when travel resumes, I expect it will be rare for a tribunal to conduct a procedural hearing in person, and video-conferencing will be the norm.

From the pandemic, we have seen that international arbitration can quickly adapt and embrace new technologies as essential tools for dispute resolution. In the early stage of the pandemic, ICC issued a guidance note on how to minimize, or even avoid, potential disruption by thoughtful use of case management tools. These included the use of video-conferencing, which has now become commonplace, but also included consideration of legal or contract interpretation issues that may be decided on a preliminary basis to narrow the issues in dispute and the scope of issues that need to be decided in an evidentiary hearing. The guidance note is available in multiple languages, including Chinese.

The 2021 ICC arbitration rules also made important changes, so ICC arbitration is even more efficient, flexible and embraces this digitalisation. The rules make clear that tribunals are empowered to conduct hearings in person and remotely to take into consideration the relevant facts and circumstances of the case. All filings are now electronic unless a party specifically requests that hard copies be served.

And the presumption that meetings and hearings will be in person has been flipped. Before the pandemic, we assumed evidentiary hearings would be in person unless there were very specific reasons for a witness or expert to testify remotely. Now, everyone needs to consider whether there’s a need or a strong desire to meet in person. So, when travel resumes, I expect it will be rare for a tribunal to conduct a procedural hearing in person, and video-conferencing will be the norm. For evidentiary hearings, there will certainly be more openness to video and hybrid hearings, although some parties will want to be in person for major matters.

How do you see the practice of arbitration changing in the next 10 or 20 years?

New technologies will change the practice of arbitration. The tools available are rapidly shifting; while some tools create an opportunity for significant cost savings, others require new investments. This is a unique moment in time for the international arbitration community to embrace technology as an essential tool for efficiency and be in a position to handle the increased use of big data, block chain technology, machine learning and text mining. While not replacing human judgment in the near term, predictive justice will be an element of decision making.

What about the role of arbitral institutions? How do you see that evolving over time?

I expect ICC will be viewed as the one stop shop for the dispute resolution – and dispute avoidance – needs of global business.