2 March 2018
YSIAC Debate

By Melissa Mak, Senior Associate, Allen & Gledhill LLP

“Tribunals with women arbitrators make better decisions.” As is well known, in a relationship, one person is always right and the other person is male – surely, this must be good counsel when selecting an arbitrator, where judgment and perceptiveness are crucial attributes.

The YSIAC Debate held on 2 March 2018 sought to challenge this received wisdom. The moderator for the debate was Mr Chelva Rajah, SC (Member, SIAC Board of Directors, Managing Partner, Tan Rajah & Cheah). Arguing for the motion – and ostensibly with the “easier” task – was the duo of Mr Toby Landau QC (Member, SIAC Court of Arbitration; Barrister and Arbitrator, Essex Court Chambers) and Mr Paul Tan (Partner, Rajah & Tann Singapore LLP), with brains and beauty to spare. Arguing against the motion were the formidable team of Ms Deborah Barker, SC (Managing Partner, Withers KhattarWong) and Ms Jae Hee Suh (Associate, Allen & Overy), who persuaded the packed audience of 128 attendees with impassioned advocacy (and song).

This debate was a timely one, coming slightly less than two years after the arbitration community drew up the Equal Representation in Arbitration Pledge, with signatories committing to diversify the pool of arbitrators and improve the profile and representation of women in arbitrations.

Mr Tan fired the opening salvo with the central thesis that women outperform men in personal qualities that were relevant to arbitral decision making – women tended to have more initiative and creativity, and displayed honesty and social awareness. Citing various statistical studies (as well as anecdotal evidence that women were smarter and live longer), Mr Tan presented a compelling case in favour of the participation of women on arbitral tribunals to improve decision making.

Mr Tan’s arguments were met with a confident rebuttal from Ms Jae Hee Suh, who challenged the underlying assumption in the motion that women arbitrators had to make “better” decisions to justify their appointments to arbitral tribunals. She argued that gender should make no difference to decision-making: expertise and efficiency bore little correlation to one’s gender. Women arbitrators should be appointed on an equal opportunity basis, and not because of their gender. Ms Jae concluded that supporting the motion would harm, instead of support, women, by perpetuating gender stereotypes and suggesting that the participation of women in arbitral tribunals was no more than a form of tokenism.

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Ms Lim Seok Hui delivering the Welcome Address

Left to Right: Mr Chong Yee Leong, Mr Toby Landau QC, Mr Paul Tan, Ms Lim Seok Hui, Ms Deborah Barker, SC, Ms Jae Hee Suh, Mr Kabir Singh and Mr Chelva Rajah, SC

Following on the heels of Ms Jae’s challenge to the idea that woman had to show that they have a “right” to be there, Mr Landau presented yet another perspective that focussed on the importance of diversity in group decision-making. Quite apart from the fact that women might have specific personal qualities and characteristics that lent themselves to the process of decision-making, the individual skills of a diverse group collectively contributed to greater group intelligence and translated to greater collaboration in making sense of evidence and submissions. Mr Landau explained that “better” might not just mean right or wrong, but whether a decision was regarded by users as legitimate and acceptable. Gender diversity was a fact of the modern world, and the composition of tribunals should reflect this.

Ms Barker responded, to rapturous applause from the audience, by breaking out the ukulele and in song with the aptly titled song “Man Smart, Woman Smarter”. The lyrics speak for themselves: “And not me but the people they say; That the men are leading the women astray; But I say, that the women of today; Smarter than the man in every way.” Ms Barker asked, rhetorically: how would the inclusion of females improve decision making? The oft-quoted description of arbitrators as a “male, pale and stale” group that would somehow benefit from the participation of women undermined the wider issues of unconscious bias and lack of equal opportunities that have contributed to the imbalance.

At the end of this spirited debate, the audience spoke, and awarded the debate to Ms Barker and Ms Jae. What appeared at first to be a straightforward motion reflected the nature of the complex and multi-faceted debate on inclusivity in the community. Whilst the concept was widely supported, the unconscious bias in the system cannot be changed by the mere assertion that tribunals with woman arbitrators are “better”. The women were still right on this score.

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