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Ground-breaking Appointment Sets Example in the Fight to Promote Diversity

4 October 2016 Features
By Sabina Adascalitei, Research and Academic Affairs Coordinator

When selecting an arbitrator to oversee a complex case, gender diversity does not tend to be a key consideration for disputing parties. Overall, those in conflict are usually more concerned with the qualities and suitability of the arbitrator.

Characteristics such as legal background, experience in the field and reputation will all be scrutinised and while these foundations are important, they unfortunately lead to the appointment of the same individuals rather than support equal opportunities among qualified professionals.

Progressively however, given the truly globalised nature of today’s world, the issue of gender equality in international arbitration has raised significant concern among institutions worldwide.

And things are starting to change. Many have now signed the Equal Representation in Arbitration Pledge and organisations in the field are taking active steps to support the initiative.

Changes to the landscape as we know it can also be seen in the appointment of the first female arbitrator in Saudi Arabia. Shaima Aljubran, a lawyer and legal advisor at Rawabi Holding, was appointed as an arbitrator in a commercial dispute on 10 May 2016.

Crucially in the case at hand, the claimant filed a suit to compel the respondent to start arbitration proceedings with a view to resolving the commercial dispute between the parties. Article 15(2) of the Saudi Arbitration Law, the relevant provision in this context, states:

If the parties of the arbitration do not agree on the procedures of choosing the arbitrators, or one [of] the parties violated them, or the appointed arbitrators do not agree on some matter where agreement is required, or if the other fails to perform what is entrusted to him in this regard, the competent court undertakes - at the request of [that party] who is concerned about acceleration - to do the procedure, or the required work, unless it is [otherwise] provided in the agreement for how to complete this procedure or work.

The competent authority in the case was the Dammam Court which confirmed and approved the formation of the arbitral tribunal. Both parties appointed their arbitrators, with the respondent choosing Ms Shaima Aljubran. The two arbitrators then agreed on the appointment of the chairperson.

In response to the appointment, there have been mixed reviews. Some scholars have been highly critical and argued that the decision rendered by the tribunal should be annulled or deemed unenforceable. The critique stems from the general approach that, under Sharia Law, women cannot act as judges.

Despite the similarities between arbitrators and judges, it is important to note that arbitrators are often active professionals and parties select them based on their in-depth knowledge of the subject matter.

To achieve this goal, parties often have the opportunity to meet or speak to the arbitrator beforehand. This is not the case of judges as they are most likely allocated to a case on a random basis, irrespective to whether the parties agree or not.

Furthermore, Saudi Arbitration Law does not provide for any gender requirements for the arbitrators, nor does it contain any provisions to prevent women from acting as arbitrators.

It is generally understood that the provisions apply to both men and women, who are required to (1) be legally competent, (2) be of good conduct and behaviour and (3) hold a degree in Islamic or legal studies.

Fundamentally, Ms Shaima Aljubran’s appointment is a reflection of a modernised set of arbitration rules, based on the UNCITRAL Model Law.

Furthermore, Saudi Arabia has been subject to continuous change over the past two decades, focusing its resources to develop the education and professional skills of its citizens. The Saudi government has given SR 20 billion in scholarships to students.

The scholarship is equally accessible to men and women and seeks to assist individuals achieve their professional goals so that they can return back to their home country and contribute to the economy.

So while the issue of gender diversity is gaining momentum and is manifesting itself in interesting milieus worldwide, there is still progress to be made.

Meanwhile, the appointment of Ms Shaima Aljubran in Saudi Arabia represents an important step in promoting gender diversity and will, hopefully, leave a door open for similar examples to follow.