10 ASIAN LEGAL BUSINESS – AUGUST 2023 WWW.LEGALBUSINESSONLINE.COM BRI EFS Q&A ‘ASIA HAS MADE UNPRECEDENTED PROGRESS IN INTERNATIONAL ARBITRATION’ The ICC International Court of Arbitration recently marked the 100th anniversary of its founding. Claudia Salomon, international disputes specialist and the first female president of the ICC Court, shares with ALB about its evolution, the development of arbitration across Asian jurisdictions, and why dispute resolution is now more important than ever in the age of mounting geopolitical risks. ALB: Can you first tell us a bit about how the organisation has evolved under your watch? Claudia Salomon: 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. The best way to identify what parties want in each 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 must ensure that the arbitration process better reflects this role. In this centenary year of the ICC Court, we are transforming how parties and other stakeholders access our services with the launch of ICC Case Connect, which now enables more streamlined communication and file-sharing among parties, the arbitral tribunal, and case management teams. ALB: How has the international arbitration ecosystem shifted in Asia in recent times? Salomon: The progress that Asian jurisdictions have made in international arbitration is unprecedented. The governments in the region have been very forward-thinking and nimble in addressing arbitration issues, including legislation dealing with the emergency arbitrator, third-party funding, and enforcement of interim relief. Chinese parties have increased power in their contract negotiations. And we have seen a marked improvement in the sophistication of Asian parties in resolving cross-border disputes and the emergence of world-class counsel. We see an extremely high standard of toptier Asian law firms, particularly in Singapore, Hong Kong, India, South Korea, and Japan, and we also see the emergence of a growing number of top-tier Asian arbitrators. We have also seen an increase in intra-Asian disputes arising from significant intra-Asian investment and the desire by Asian parties to have arbitrations seated in Asia. The complexity of disputes has been rapidly increasing. For example, construction disputes often also involve disputes regarding the financing of construction projects. Chinese and Indian parties were the sixth and seventh most frequent nationalities, respectively, among the parties in ICC arbitration, and parties from Asia-Pacific account for 25 percent of the parties. Singapore is among the top five seats in ICC arbitration. ALB: What challenges and opportunities does the current geopolitical landscape present to disputes? Salomon: We are currently changing relationships, as some of the biggest economies look for additional partners or investments. Some companies will pull out of China or diversify and set up production in other countries, such as India, Mexico, Turkey, and Vietnam. And China will look to strengthen its trading position, particularly in ASEAN, with great regional integration. In this shifting landscape, companies need to mitigate risk. They need mechanisms in place to protect their supply chains, to protect their investments and ensure they can continue to operate even in challenging circumstances. Key to risk mitigation is assuring that cross-border agreements have an effective dispute resolution mechanism. Businesses trading across borders do not want to find themselves in the courts of their counterparties. The process is often too slow or considered to be hard to navigate or untrustworthy. Instead, businesses large and small, as well as states and state-owned enterprises, want an effective avenue of recourse and thus turn to international arbitration to resolve such conflicts. ALB: As the first female president of the ICC Court, what are your thoughts on the state of diversity in the arbitration profession in Asia and what progress are you hoping to make in terms of advancing gender equality in the practice area? Salomon: The global business community regards diversity as essential to the legitimacy of arbitration practice. They rightly expect the arbitration community to reflect their diversity and values. We are therefore focused on increasing the number of Asian arbitrators, not just for cases involving Asian parties. We have made significant strides in increasing gender diversity: women, for example, now comprise approximately 40 percent of appointments by the ICC Court. And the ICC Court has recently introduced standard language in its model letters to parties and co-arbitrators, encouraging diversity, broadly defined, when nominating arbitrators. CLAUDIA SALOMON