As Asia’s influence on arbitration increases, the role of cultural sensitivity and  cultural intelligence becomes more pronounced.  Cultural nuances subtly shape arbitration procedures and outcomes, including approaches to dispute resolution, advocacy styles, and tribunal dynamics.  In this context, Young ITA hosted the Second Joint Asia and India Young ITA Event.  The webinar was titled Cross-Cultural Perspectives in International Arbitration:  Bridging Asia and India.  It was moderated by Young ITA Co-Chair for India, Aayushi Singh (Attorney, France) and the Young ITA Co-Chair for Asia, Angelia Thng (Partner, Braddel Brothers, Singapore).  The panel featured the following leading practitioners from across Asia:

• Shaneen Parikh, Head Partner of International Arbitration at Cyril Amarchand Mangaldas, India;
• Shota Toda, Nagashima Ohno & Tsunematsu, Japan;
• Kiran Sanghera, Deputy Secretary General at the Hong Kong International Arbitration Centre;
• Alice Wang, Senior Associate at Pinsent Masons & Young ITA Asia Co-Chair for Asia, Mainland China; and
• Yarui Zhou, Partner at Tahota Law Firm, Mainland China.

In this webinar, the panel discussion highlighted nuances of culture that have subtly shaped arbitration processes by influencing approaches to dispute resolution, advocacy styles, communication methods, and outcomes through tribunal decision-making.  Singh kick-started the discussion by explaining cultural factors such as hierarchy, communication styles, and relationship preservation impacting arbitration proceedings. The panellists provided valuable insights on strategies to navigate these nuanced cultural differences within Asia.

Singh elaborated that culture, often under-acknowledged, has myriad range of effects on the framing of arguments, perceptions of silence, and deference to hierarchy in decision-making.

Singh further clarified that while India is geographically within Asia, its common law heritage, judicial philosophy, and arbitration reform journey distinguish it from other Asian jurisdictions like Japan, the People’s Republic of China (“China”), or Hong Kong, which operate under a hybrid or civil law system. Parikh concurred and underscored the importance of recognizing diversity not just between the East and the West but also within East Asia. Nevertheless, certain values, like deference to seniority and preference to preserve relationships, cut across Asian jurisdictions.

A. India

Parikh outlined that Indian arbitration, particularly domestic ad hoc arbitration, is characterized by culturally ingrained values of respect for seniority and compromise.

Parikh explained that arbitrators in India adopt different practices for international commercial arbitration and domestic ad hoc arbitration.  In her own practice, Parikh adopts a more deferential demeanour and a more collegial style for cross-examination in domestic ad hoc arbitration.  Additionally, she explained that the respect for hierarchy and seniority (borrowing from the concept of the panchayat1In India, a panchayat refers to a form of local self-government that was popular before British colonialisation. Historically, it consisted of five (“panch”) elders of the village who overlooked administration of the village and settled disputes. A modernised version of the panchayat system, as provided in the Constitution of India to facilitate direct democracy, continues to be part of rural self-governance even today. See Ministry of Agriculture, A Draft Concept Paper on the Revitalisation of the Panchayati Raj Institutions for Democracy and Development, INDIA CULTURE (November 26, 1986), https://www.indianculture.gov.in/flipbook/781.X1  (“council of elders”)) translates to the appointment of retired judges from courts as arbitrators.  In contrast, in an international commercial arbitration (“ICA”), Parikh reported preparing witnesses for more confrontational cross-examination and specifically contextualizing some cultural aspects to foreign tribunal members, such as the Indian head bob or language barriers.  

Further, Parikh elucidated that traditional dispute resolution (like panchayats), influences parties in Indian domestic ad hoc arbitration to prioritize compromise.  This desire to preserve relationships is stronger if individuals involved (like promoters, etc.) want to avoid reputational risk and if there is a need to preserve an ongoing commercial relationship.  However, unlike in China, some entities, like promoters of family run companies and public sector undertakings, are exceptions and can be highly litigious. Parikh cited Anupam Mittal v. Westbridge2Anupam Mittal v. Westbridge Ventures II Investment Holdings, [2023] SGCA 1 (Singapore Court of Appeal, Anupam Mittal v. Westbridge Ventures II Investment Holdings, (January 6, 2023). X2  to illustrate how Indian parties sometimes employ guerrilla tactics, including filing frivolous suits or delaying arbitration through regulatory forums like the National Company Law Tribunal (NCLT). Further,Parikh noted that public sector undertakings tend to avoid settlement, due to bureaucratic reluctance to take responsibility for compromise.

B. China

Zhou and Wang identified several cultural factors that influence Chinese arbitration, such as a cultural inclination to preserve harmony, the importance of reputation/face, the effect of political decision-making on cases involving state-owned enterprises, and civil law practices.

Zhou explained that Chinese parties often hesitate to initiate arbitration due to cultural preference for “xi song”—the cessation of litigation to promote peace and harmony.

Wang elaborated that state-owned enterprises are often slow to act due to robust decision-making processes with offers that pass through multiple levels of scrutiny within the government or political bodies (i.e., project, company, and central party levels, etc.).  Wang highlighted that counsels have successfully leveraged such rigorous procedures to present such offers as final.  A win-win situation exists when the offer accepted aligns with values of relationship preservation.  However, if such an offer is not accepted, then no matter the cost, monetary or social, the Chinese state-owned enterprise has no other option but to fight the other party.  Such framing promotes settlements, especially where the Chinese Communist Party is a respondent, opposing parties have a better chance of settlement compared to where the Chinese Communist Party is a claimant for the same reasons.

Additionally, Wang underscored that the popularity of mediation and mediation-arbitration in China is based on this cultural inclination to avoid confrontation.  Wang explained that although in various other jurisdictions, mediation-arbitration raises eyebrows, in Hong Kong, the legislature has recognized mediation-arbitration while addressing confidential information disclosure concerns.

Wang emphasized that considerations of reputation plays a significant role in negotiation and arbitration, especially because ICA losses are perceived as a reputation risk.  Wang advised that counsel should recognize these factors that can act as incentives to settlement and tailor strategies to optimize client satisfaction.

Furthermore, Zhou elucidated the importance of understanding local legal culture and following unwritten rules.  Zhou explained that in China, there is a general cultural scepticism of oral testimony.  There are two important consequences.  First, to build a stronger case, counsel must support spoken words with written proof.  Second, original copies of relevant evidence must be submitted.  Counsel must be prepared to question and defend the authenticity, legal significance, and relevance of such evidence.  Another aspect of local legal culture is the importance of institutionally-appointed experts rather than party-appointed experts for appraisal.

Additionally, Zhou underscored that differences in the civil and common law legal traditions influence the choice of law, enforceability of awards, and validity of arbitration agreements.  Cross-border agreements must be formal and institutionally anchored, as mere intent is insufficient.  Even 100 percent foreign-owned companies incorporated in China are treated as domestic entities, restricting the use of foreign seats or laws.

C. Japan

Toda elaborated that the cultural values of preservation of relationships, face-saving, and timeliness influence arbitral proceedings in Japan.  Like Wang noted in China, Toda believes that clients’ perception of a loss in ICA as a reputational risk is a critical factor for counsel to consider. Toda stated that this perception may often act as an incentive for settlement.

Toda further stated that cultural influences in communication styles also affect arbitration proceedings. While acknowledging the limitations of the direct and indirect dichotomy, he noted that Japanese clients tend to be indirect and high context.  While clients may avoid confrontation, counsel must understand such communication styles to ensure clarity and precision.  Toda stressed the importance of prior preparation, including understanding Japanese communication styles, especially in the cross-examination of witnesses to steer the narrative.

Wang agreed and shared an illustrative case that focused on factual witnesses who are most vulnerable to cultural differences due to their lack of expert knowledge, prior experience as a witness, or training in precise communication.  She explained that when a Japanese witness from her client’s side was questioned, the witness chose to give concise answers (Yes/No) without explaining any context, which acted against her client’s interest. As counsel, during re-direct, she asked targeted questions to clarify the context and later used her closing submissions to explain the cultural underpinnings of the witness’ communication style.

After a comprehensive discussion on some distinct cultural influences in arbitration proceedings, the panel discussed the effect of culture on tribunal decision making.

Zhou observed that in Chinese tribunals, hierarchical decision-making is common.  For example, the presiding arbitrator typically dominates the process, with co-arbitrators playing a passive role.  While this structure enhances procedural efficiency and predictability (with awards often rendered within a year), it may reduce deliberative debate and increase susceptibility to bias—particularly in document-heavy cases, like in China.  Zhou, borrowing from her experience, explained that appointing a diverse arbitral tribunal may facilitate a more consensus-based decision making process.

Parikh noted that in India, arbitration panels are frequently comprised of retired judges, who bring with them from court practice a procedural rigor and often a long-winded reasoning.  While this can lengthen proceedings, domestic awards tend to be upheld and foreign awards deemed enforceable.

From an institutional perspective, Sanghera made contrary observations.  She highlighted that Hong Kong International Arbitration Centre tribunals generally feature arbitrators of similar seniority, with no evident hierarchy in decision-making.  She added that challenges to arbitrator appointments based on seniority are rare.

Challenges to gender diversity continue to plague the arbitration scene in Asia and around the world. However, as Zhou and Parikh elucidated, inclusivity is needed.  Asia is witnessing a welcome gradual change as globalization and concerns of diversity increase.  As Toda remarked, the panel (mostly women) illustrated hope for change.

The panel noted that women were largely underrepresented in arbitration practice.  Inclusivity of different cultures and genders is critical to richer deliberations, broader perspective, and culturally sensitive arbitration. Zhou pointed out an additional challenge akin to a glass ceiling—even when women are included as members of arbitral tribunals, they tend to be marginalized as co-arbitrators on the tribunal. Considering the hierarchal decision-making process common in jurisdictions like China, relegating women to co-arbitrator roles diminishes the degree to which the they can participate and shape proceedings. However, Zhou elucidated that including women may allow for a balanced approach compared to the current hierarchal one in China.

Shota noted that a practical limit exists on the contribution of counsel to diversity in tribunal appointments. Parikh agreed, explaining that clients do not generally care about gender diversity.  However, Parikh explained that calls for diversity are about seeking merit-based appointments.  The aim of focusing on diversity is to prevent the bias and discrimination against women that has historically been done.  As a practical means of promoting diversity in arbitral tribunals, Parikh suggested presenting  a list of three to five arbitrators to the client, ensuring that at least one is a woman or from a different jurisdiction.  Parikh hoped that initiatives for diversity can help to create an arbitration practice that is agnostic to gender and race.

The panel, through its discussions, brought to light a spectrum of nuances that arbitration practitioners (counsel and arbitrators) need to be aware of and attentive to with regards to culture, specifically in cross-border arbitrations.  Some recommendations for culturally adaptive arbitration are listed below.

1. Draft Tailored Arbitration Agreements
2. There is no “one size fits all” approach to arbitration in Asia.
3. Thus, counsel should tailor agreements to meet any legal, cultural, or institutional requirements instead of relying on generalized or boiler-plate clauses.
4. Promote Diversity in Appointments to Arbitral Tribunals
1. Counsel can prepare a list of potential arbitrators that includes diversity of gender and jurisdiction to balance efficiency and reduce potential of bias, as Parikh suggested.
2. Institutions can increase diversity by expanding the pool of arbitrators and internally, in case management and governance departments.
5. Adopt Culturally Sensitive Advocacy
1. Understand communication styles to gauge party expectations and steer the narrative in arbitration proceedings.
2. Understand cultural nuances to frame arguments that resonate culturally.
3. Clarify cultural context during cross-examination and closing submissions, especially when tribunal members lack familiarity.
4. Tailor advice, negotiation strategies, and advocating styles based on cultural norms.
1. For example, procedural choices like mediation-arbitration agreements may be preferred in China or Japan.
2. Enroll in training programs to learn best practices for advocacy in both common law and civil law traditions.
6. Involve local counsel early since they can help navigate unwritten legal rules and local legal cultures.

Cultural sensitivity is no longer optional in international arbitration—especially in Asia, where diverse legal traditions and values intersect.  As arbitration practitioners, institutions, and clients navigate this evolving terrain, cultural sensitivity can become a defining strength by enhancing legitimacy, efficiency, and outcomes.  Whether through drafting, tribunal selection, or hearing strategy, aligning legal acumen with cultural awareness is essential for credible and effective arbitration in a globalized world.