Client mindset takes centre stage under new ICC Court President Claudia Salomon

The November 2020 announcement that Ms Salomon had been recommended to succeed Alexis Mourre as President of the ICC Court when his six-year term came to an end on 30 June 2021 was met with widespread acclaim. As a former partner and global co-chair of Latham & Watkins’ international arbitration practice, and a long-standing affiliate of the ICC Court, including as a Vice-President since 2018, Ms Salomon’s experience and suitability for the role were clear. The proposed appointment of a female president for the ICC Court was also hailed by many as confirmation of ICC’s commitment to addressing long-standing issues relating to gender balance in arbitration.

Having taken on one of the highest-profile jobs in international arbitration during a time of significant change and uncertainty globally, the ICC arbitration community, and indeed the international arbitration community more generally, has been watching to see what Ms Salomon would do first, and to understand her vision for the ICC Court and ICC Arbitration.

Dedicated to diversity and inclusion

In a statement of clear intent, the initial weeks of Ms Salomon’s term have shown diversity and inclusion to be at the forefront of policy for the ICC Court. First, the ICC Court issued a global call for interested candidates to participate in a new Task Force on Disability Inclusion and International Arbitration. As Ms Salomon commented at the time, ‘[t]o reflect the global business community, we must enable the active participation of all skilled practitioners, including those with disabilities.’ A second inclusion initiative was announced a few weeks later, this time the creation of a LGBTQIA network within the ICC Court itself (as a starting point), with the aim of creating a safe and inclusive space for members to be their authentic selves, in line with ICC’s World Business Pride pledge.

Ms Salomon wanted to ‘send a strong message’ about her dedication to diversity and inclusion, which she sees as ‘core, existential, and essential’ to the work of the ICC Court and ICC. The ultimate aim of these initiatives, as well as related policies now and in the future, is to ensure the ICC Court and ICC dispute resolution services reflect the global business community and its needs. Ms Salomon was clear that diversity is also essential to maintaining the legitimacy of international arbitration as a method of dispute resolution for the international business community.

Ms Salomon is proud to lead the most diverse ICC Court in its history: 195 members are drawn from 120 countries, with women in the majority, and greater representation from Africa than ever before. As for tribunal diversity (gender and more broadly), while recognising the progress made to date, Ms Salomon is poised to do more, including working with ICC national committees to ensure they are engaged with improving diversity as an ongoing exercise. However, the role of the ICC Court in selecting arbitrators for appointment is, of course, only part of the picture. According to Ms Salomon, 75% of ICC arbitrators are nominated by the parties (and their appointments confirmed by the ICC Court) or by co-arbitrators, which means that the ICC Court is focused on 25% of appointments. Where party nominations are concerned, counsel have an important role to play, but so do parties. According to Ms Salomon, the global business community has the capacity to ensure proposals/nominations are diverse, with parties making the same diversity demands of their arbitral panels as they do with their panel law firms. According to the ICC’s report on its 2020 caseload statistics, more women were nominated by parties than appointed by the ICC Court, which perhaps reflects the increased prevalence of three-member tribunals in ICC Arbitrations and the proportion of cases in which the ICC Court is called on to appoint arbitrators.

A client mindset in all things

Speaking with Ms Salomon on any topic it isn’t long before the focus of conversation turns to the needs of the end-users of arbitration: the parties. Ms Salomon is dedicated to adopting a client mindset in all things, an approach she explored notably during her Atlanta International Arbitration Society lecture earlier this year.

As for how this will be achieved in practice, Ms Salomon says we can expect, at least, initiatives focused on party engagement. These will go beyond simply offering tools for parties: the aim is to increase in-house counsel engagement with the arbitration process, reflecting the modern role of in-house counsel as C-suite-level advisers to their organisations and assessors of risk. Ms Salomon would like to see ICC tribunals take basic, but potentially impactful, steps like encouraging, where desired, party representatives/-in-house counsel to be copied into all communications from the tribunal, and to attend early procedural conferences where there may be scope to influence the shape and timetable of the arbitration. Ms Salomon hopes this will help better align the arbitration process with party expectations and may have a positive impact on costs and on focusing on the issues.

This approach, for Ms Salomon, also reflects ICC’s focus on the needs of SMEs, which represent an important part of the global economy, and which have been, generally, heavily impacted by the coronavirus (COVID-19) pandemic. A key priority for her term in office is communicating clearly to this group how ICC can help resolve low to medium value disputes, including: (1) the offerings available within the ICC International Centre for ADR Centre; (2) the ICC expedited arbitration procedure, which has been a ‘resounding success’; and, (3) the adaptability of the ICC Arbitration process for all types of disputes, not just for the resolution of, for example, complex construction disputes (for which ICC is well known).

Picking up the theme of legitimacy in this context, the new President intends to further a culture of transparency with regard to the ICC Court, while respecting party choice and confidentiality. The availability to parties of reasons for key ICC Court decisions (including arbitrator challenges) has been possible since 2015. Ms Salomon expects further developments in decision-related transparency, leading, perhaps, in due course to the publication of a compendium of anonymised challenges decisions (something the LCIA has done to good effect), helping to demystify the decision-making process for the benefit of all stakeholders and, ultimately, strengthen confidence in the system.

An increased role for technology

Under Ms Salomon’s leadership, ICC Arbitration stakeholders can expect to see technology further embraced for case management and administration activities, as well as during arbitration proceedings themselves, for example, the continued use of videoconferencing in hearings. While taking the view that artificial intelligence doesn’t yet present an existential threat to arbitrators in their decision-making capacity, Ms Salomon does expect advances in this area to impact arbitral practice, for example with respect to increasingly sophisticated document review. It’s clear that ICC wants to remain in touch with current practice on the use of technology, as demonstrated by the recent survey of the ICC Commission on Arbitration and ADR as it seeks to revise its report on this subject, which was originally published in 2004.

Close followers of the business of the ICC Court may recall tentative announcements made during Hong Kong Arbitration Week 2017 regarding the imminent launch of an internal and external online case management platform for use in ICC Arbitration proceedings. Explaining that the institution’s plans in this regard had become more ambitious over time, Ms Salomon said we should ‘stay tuned’ for further news on this project.

The pandemic impact

Like many if not most organisations, ICC has needed to adapt to meet the challenges posed by the coronavirus pandemic. The ICC Court issued detailed, helpful guidance for participants in ICC Arbitrations in 2020, some of which made its way into permanent changes to ICC Arbitration practice by way of amendments to the ICC Arbitration Rules and the supporting Notes to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration for 2021. Ms Salomon confirmed that the ICC Court and Secretariat are continuing to operate remotely for the time being. As for the business of the ICC Court, Ms Salomon hopes to foster a culture of more frequent engagement and increased participation, which has been made more possible due to remote attendance being the default for all.

Faced with an almost inevitable question regarding the long-term future of remote hearings in international arbitration, Ms Salomon said she hopes that the pre-pandemic assumption of in-person hearings will, ultimately, be ‘flipped’ as globally we move out of the pandemic, with participants asking instead whether there is a need to be in person. Ms Salomon shares the view expressed by others that most procedural hearings may be dealt with remotely, while being in person may be more commonly appropriate for evidentiary hearings. Parties and in-house counsel will be more alive to the option of proceeding remotely than before, as well as the cost and other advantages this may afford in particular cases. Ms Salomon also hopes that greater use of preliminary issues hearings in appropriate cases may be seen in the future, again taking the view that this is what clients may wish to see.

Concluding remarks

Ms Salomon described her first few weeks in the role as a ‘wonderful whirlwind’ and praised the impressive dedication of the ICC Secretariat and members of the ICC Court, with whom she feels ‘privileged’ to work. She is ‘excited’ to be in a position to launch strategic new party-focused initiatives, and to shape ICC Arbitration and international arbitration generally.

All signs indicate the future of the ICC Court and ICC Arbitration is in excellent hands.

This article originally appeared on the LexisNexis® UK website. Ms Salomon was interviewed by Barry Fletcher, Head of Arbitration and Head of the Dispute Resolution Group at LexisNexis® UK.