On 3rd December 2024, the International Day of Persons with Disabilities, the ICC International Court of Arbitration hosted a charity event in Hong Kong centred around the theme “Embracing Diversity and Inclusion as a Core Value in International Arbitration”. This event was sponsored by Ashurst and supported by The Chartered Institute of Arbitrators East Asia Branch, Hong Kong Bar Association and local firms and chambers.
This event brought together industry leaders and advocates to discuss the ICC’s Guide on Disability Inclusion in International Arbitration and Alternative Dispute Resolution, and also featured a panel discussion around disability inclusion within the practice of international arbitration. Charity sales were held to raise funds for Love 21 and Dignity Mama.
Below we share some of the highlights and key takeaways. We encourage all readers to read the ICC Guide, which may be accessed here.
Opening Remarks
The President of the ICC International Court of Arbitration, Claudia Salomon, opened the session by sharing her personal account as counsel working with a talented associate with Type 1 diabetes in one of her last hearings. Having never worked alongside a colleague with a disability, it had been eye-opening for her to see what the associate had to do to adjust his insulin levels throughout the day, all in the middle of intense hearing preparations.
Claudia explained that it was under this backdrop that she initiated the ICC’s Task Force on Disability Inclusion in International Arbitration and ADR upon taking office as the President of the ICC Court in 2021.
Introduction to the Guide and the Task Force
Sylvia Tee, a Partner in Ashurst’s International Arbitration Practice who is also a Member of the ICC’s Arbitration and ADR Commission and its Task Force on Disability Inclusion in International Arbitration and ADR, introduced the ICC Guide.
Sylvia provided insight into the preparation of the ICC Guide by the Task Force, which comprised 53 members from 28 jurisdictions, explaining how the Task Force completed its work within a record time of 15 months during the COVID pandemic, with meetings conducted virtually to discuss various draft sections and working documents.
The Guide is structured into three chapters: Recommendations, Understanding Disability and Disability Inclusion in International Arbitration and ADR. It further includes a disability inclusion toolkit, which provides model language to be included in the first procedural order, guidance for tribunals on considering requests for accommodations and a mindfulness checklist for tribunals and practitioners to ensure they are considering disability issues appropriately.
Panel Discussion
Vera He, the Deputy Director of ICC Arbitration and ADR for North Asia, moderated a captivating panel discussion with speakers Mia Edin (Senior Manager, Diversity, Equity & Inclusion Business Partnering, John Swire & Sons (H.K.) Limited), Mustafa Hadi (Managing Director and leader of Asia-Pacific, BRG) and Walter Yu Hang Tsui (Co-founder and CEO, CareER Association Limited).
Walter’s Story
Walter opened by sharing his journey living with a disability, which started when he was diagnosed with a visual impairment at the age of three, and culminated in him losing his eyesight completely. Despite facing challenges in the mainstream education system, Walter persevered and excelled academically, eventually graduating from the Chinese University of Hong Kong in 2011. Walter went on to found CareER, an organization aimed at supporting highly educated people with disabilities in their professional lives.
Walter emphasized the particular importance of employers recognising the talent pool among people with disabilities and the need for inclusive corporate strategies. He introduced the Disability Inclusion Index (DII) CareER he had developed, which covers eight sections for corporations to consider when evaluating the disability inclusivity of their business.
Walter noted that whilst companies often directed discussions about diversity and inclusion towards HR, only three out of the five sections in the DII were related to HR. He therefore encouraged companies to consider disability inclusion more holistically.
Mia’s Experience
As an international Diversity, Equity and Inclusion (DEI) HR professional, Mia emphasised the importance of employers understanding and accommodating disabilities, the role of flexible working arrangements, and the need for role models in senior positions. Pro-active accommodations during the recruitment stage were a welcome start, as well as having a diverse panel conducting the interviews. Moreover, she recommended that talent acquisition teams develop relationships with NGOs in the disability inclusion space, or which worked with people with disabilities. Doing so would enable companies to have a better idea of the types of accommodation to make, and facilitate productive changes rather than actions which would lead to “DEI fatigue” – a phenomenon resulting from many things being done with little impact.
Finally, Mia stressed the significance of creating psychological safety for employees to discuss their disabilities openly. Disability inclusion should not be thought of as a niche part of a broader business plan but rather something that can support an organisation’s overall business strategy.
Mustafa’s Perspective
Mustafa discussed the challenges and social stigma associated with disabilities. He also emphasised the importance of supporting people with disabilities and the need for increased representation in arbitration. Indeed, disability inclusion was often neglected in discussions around DEI in arbitration, despite affecting and reflecting core principles of arbitration, including access to justice.
When asked how practitioners could begin to take steps for greater disability inclusion, Mustafa responded that a first step would be for practitioners to include the sample language in the ICC Guide in their first procedural orders going forward.
The sample language can be found on page 6 of the Guide and reads:
‘At any point during the proceedings, but ideally as soon as practicable, either party may advise the arbitral tribunal of a person who, by reason of disability, requires reasonable accommodation to facilitate their full participation in the arbitration, including site visits and oral hearings. In considering such requests, the arbitral tribunal will take account of the privacy rights of such persons against the unnecessary disclosure of their disability.
‘For the purposes of this provision, disability means any physical or mental health condition that – without accommodation – would impair a person’s ability to participate in work related to an arbitration.’
Conclusions and Key Takeaways
The event highlighted a few key takeaways for those seeking to improve disability inclusion in arbitration and ADR, in particular:
- Implementation of the ICC Guide’s Toolkit:including by using the sample text in any first procedural orders going forward;
- Leadership: Effective leaders set the tone for organizational culture by demonstrating a commitment to diversity and inclusion through their actions and policies;
- Offering reasonable accommodations:during both the recruitment process and to existing employees. Examples might include having microphones in meeting and hearing rooms, and operating flexible working arrangements; and
- Encouraging open communication: to create an environment of psychological safety for those with disabilities to feel comfortable to speak about their experiences including any accommodations which they may need, so as to address any concerns thoughtfully.
By embracing these practices, the arbitration community can move towards a more inclusive environment, ensuring that all practitioners can fully participate and contribute to the field. The ICC Guide serves as a valuable resource in this journey, and its widespread adoption will undoubtedly pave the way for a more inclusive future in international arbitration and ADR.
