The Chartered Institute of Arbitrators is calling for a rethink in tribunal appointments, warning that over-reliance on legal professionals risks flawed decisions and overlooks the invaluable insights that industry experts can bring.
The Chartered Institute of Arbitrators (Ciarb) is calling for a renewed focus on appointing arbitrators from a broader range of professional backgrounds, arguing that a richer mix of expertise is now essential to enhancing the quality, efficiency, and overall effectiveness of commercial dispute resolution.
The message was delivered by leading international arbitrator and former Ciarb Global president, Professor Doug Jones AO, during his lecture, Diversity of Expertise in Arbitration: The Past, Present, and Future, held recently at the offices of BigLaw firm Holding Redlich.
Reflecting on his time at Clayton Utz, the former Ciarb Global president recalled an era when arbitration in Australia and abroad was deeply anchored in industry expertise, highlighting the invaluable contributions that engineers, architects, and quantity surveyors brought to the process.
“These non-legal professionals brought invaluable technical insights and practical judgment to dispute resolution, earning the trust not only of legal practitioners but also of their peers in the respective fields,” Jones said.
While diversifying professional backgrounds can bring fresh perspectives and practical know-how to tribunals that extend beyond purely legal considerations, Ciarb revealed research showing a troubling decline in the appointment of non-lawyers and academics.
Dubbed the “diversity deficit”, Ciarb highlighted that this decline stands in stark contrast to the slow but steady progress being made in gender and ethnic diversity within the profession.
Jones warned that the declining participation of non-lawyers and academics in international arbitration risks producing “flawed” tribunal decisions, due to a critical “lack of industry-specific insight”.
“The challenge lies in breaking the cycle of appointing predominantly legal professionals, allowing for a more varied and experienced pool of arbitrators to enhance the credibility and fairness of the arbitration process,” Jones said.
“For example, from my own experience, in a hydroelectric dispute, the presence of an engineer on the tribunal proved crucial in assessing turbine performance accurately.
“Similarly, in an oil-concession accounting dispute spanning a decade, a quantity surveyor’s numerical expertise on the tribunal was invaluable for reconstructing complex accounting entries.”
To break the entrenched cycle of appointing predominantly legal professionals, Jones proposed that Ciarb take the lead in driving change by establishing clearer pathways for non-lawyers to gain procedural expertise and formal accreditation as arbitrators.
Ciarb Australia president and Holding Redlich partner Geoff Farnsworth stressed the importance of broadening the profession, highlighting how the organisation is actively focused on tackling this issue.
“Building a cohort of arbitrators with diverse experience is important for arbitration’s social licence,” Farnsworth said.
“We are confident of addressing the issue and creating opportunities for our members and stakeholders that align with our strategic direction in serving the needs of business and industry.”
