Clifford Chance

A Welcome Step in the Right Direction for Disability Inclusion in International Arbitration

Inclusion is right and necessary for reasons of fairness and responsible business, but also makes us all better at what we do as a community. Historically, there has been a significant drive for gender, ethnic and generational diversity within international arbitration but disability inclusion is now rising to the top of the agenda.

On 3 December 2021, the International Chamber of Commerce ("ICC") set up a new Disability and Inclusion Task Force. On 30 October 2023, coming out of the work of that Task Force, the ICC Commission on Arbitration and ADR published its "Guide on Disability Inclusion in International Arbitration and ADR" (the "ICC Guide").

The ICC Guide provides a welcome development, putting disability inclusion on the agenda for tribunals, institutions, and practitioners.

Section 1 of the ICC Guide includes several recommendations as to how to improve inclusion within international arbitration and ADR. Recommendations include:

• Making disability inclusion a default agenda item for Case Management Conferences.
• Asking institutions to consider appointing a diversity officer who would be responsible for ensuring the implementation of diversity objectives, including those on disability inclusion.
• Encouraging institutions to conduct audits of premises, as well as websites and social media channels, to ensure accessibility best practices are achieved. 

The ICC Guide also contains a "Disability inclusion toolkit" which provides: (i) draft language for inclusion in Procedural Orders; (ii) guidance for tribunals asked to consider and determine requests for reasonable accommodation; and (iii) a disability/inclusion awareness checklist (or "mindfulness exercise").

The mindfulness exercise provides tribunals and practitioners with five propositions and three questions to be considered, including the following:

• Many disabilities are not visibly manifest, especially to the untrained eye.
• Not everyone who has a disability needs or wants accommodation at a given point in time.
• Am I mindful of the need to respect the individual autonomy and privacy rights of persons with disabilities?
• Am I receptive to the possibility that an unforeseen disability-related impairment could arise at any point during the arbitral proceedings? 

Section 2 of the ICC Guide emphasises the need to understand disability, accepting that disability is an evolving concept that requires a more dynamic understanding not just static definitions.

Section 3 of the ICC Guide recognises that there is currently a lack of information regarding the percentage of participants in arbitration experiencing impairments from disability. The lack of statistics in respect of arbitration practitioners may also be one of the reasons why the ICC Guide is the first of its kind.

Based on studies outside the context of international arbitration, it is evident that the ICC Guide is apposite. On 23 August 2023, the UK House of Commons published its "UK disability statistics and prevalence and lift experiences". The House of Commons found that 23% of the working age population (defined by the study as ages 16 to 64) had a disability in the UK in the first quarter of 2023. This is a significant percentage of the population. It therefore goes without saying that more needs to be done to foster an inclusive environment in the field of international arbitration and the legal sector more generally.

The practical guidance identified in the ICC Guide is a welcome step in the right direction for increasing inclusion in our international arbitration community. It will be important to take stock of the implementation of the recommendations set out ICC Guide in the coming years, to enable us to understand its impact better, but also to determine what further action needs to be taken.