Commercial arbitration: Musings on women in Indonesia, and in arbitration

Karen Mills
KarimSyah Law Firm
Jakarta

I am not a feminist. I have never needed to be. Although I understand that many women have been treated as second-class citizens, and there are cultures that traditionally treat women as such, I have on very few occasions experienced any shadow of such prejudice. With only one significant exception which I shall mention later, my career has not, to my knowledge, been affected by such prejudice.

In Middle Eastern Islamic societies women are considered very much inferior to men, to the extent that in some they are not permitted even to drive their own car, to say nothing of holding executive or professional positions. We read about these abuses, and far worse, in the media daily. However, we also see that the women in these societies are beginning to rebel.

I live in Indonesia, where I have practised for almost 30 years. Indonesia has the largest Muslim population in the world, but surprisingly women do not suffer the same as they do in the Middle East. They are by no means second-class citizens here, and are as influential and respected as men. There are as many female lawyers as male, including founding and senior partners of many law firms; as many female doctors and dentists as male (perhaps more); and probably more female notaries and accountants than male. Indeed there are fewer women in politics, but Indonesia had a female President some years back (Megawati Sukarnoputri). More recently, important positions have been held by women, including Minister of Finance (Sri Mulyani Indrawati – now Managing Director of the World Bank Group); Minister of Trade (Mari Elka Pangestu); and Minister of Health (the late Endang Rahayu Sedyaningsih). While the ratio is far below that enjoyed by professionals or executives – there are women at the helm many of the major businesses, including the state oil and gas company, Pertamina (my namesake: Karen Agustiawan) – it is tacitly recognised that the power behind many politicians are their wives. In fact, at time of writing the press has been full of suggestions that the President's wife may be nominated by his party for the next Presidential election, although the President has denied such intention. Lacking a male ego, a woman is happy to work from behind the scenes where she can plot and manipulate (a classic female strength) to her heart's content, without claiming credit for her achievements.

Indonesia is an archipelago of approximately 18,000 islands (of which over 900 are permanently inhabited), over 700 languages and many greatly diverse cultures. Women play a dominant role in many of these. In Bali the women control commence. They run the markets and the home, and craft the daily and ceremonial offerings that are an inseparable part of everyday life. Traditionally, village men occupy themselves in the rice fields and with exercising their fighting-cockrels, while the Brahman men (highest class) have inherited the gift of amazing artistic talent, and serve as the artists and craftsmen who are filling Bali and the world with the most imaginative and exquisitely detailed paintings, carvings, ceramics and textiles.

Further to the east is the Minangkabau culture of West Sumatera, a matriarchal society where the family wealth passes from mother to daughter. In this culture, it is normally the woman (or her mother) who selects the husband, and not the other way around.

So in a sense, Indonesian women run their country as much as their men do. Aside from some small aberrant pockets and individuals, women are treated with as much respect as men. Today a highly religious man will apologise when, constrained by his religion not to touch any woman not his wife, he must decline to shake hands with a woman he meets in business or otherwise. However, such occurrences are rare at present.

I began by saying I had rarely been slighted as a woman, and certainly not in encounters with Indonesian or any Asian men. They have always afforded me the same respect as, and sometimes more than, they have my male colleagues. I have, however, been amused on a few occasions when a visiting Western man at a conference reception will introduce himself to the men in my group, sometimes including my husband, but rudely ignore me and any other women. On such occasions, the women are assumed to be just wives, when it is my husband who is the accompanying spouse and I the conference participant. In general, these incidents are also uncommon.

The one area of my practice that has encountered marginalisation of women, and the one area that is most important to me, is in the appointment of arbitrators, particularly with respect to arbitrators in investor-state cases. This is a major aspect of my practice. A recent study performed by Gus Van Harten of the Vale Columbia Center on Sustainable International Investment, entitled "The (lack of) women arbitrators in investment treaty arbitration" (found at www.vcc.columbia.edu/content/fdi/perspectives), reported that only four per cent of 247 individuals appointed as arbitrators in investment treaty cases until May of 2010, were women. Moreover, two women were appointed to more than half of those cases. This is an archaic and disheartening statistic.

Arbitration must surely be the most congenial of all practices. We are not competitors as much as we are colleagues. We appoint each other as arbitrator or may engage each other as local or special counsel far more than we might vie with each other for a client or job. And yet it also seems to be the most backward with respect to the role of women. Women make excellent arbitrators, and even better mediators, perhaps precisely because we are unencumbered by the male ego. We do not need to put ourselves in the centre of every situation and can envision and view things entirely from another's position or interest. We can listen without interjecting our own views or values into our thoughts and analyses. But for some inexplicable reason, women are infrequently appointed by their counsel colleagues as arbitrator, and even more rarely by other arbitrator colleagues as chair. It is the only field of practice, of which I am aware, where the so-called old boy's club still reigns, maintaining their glass ceiling.

Despite this, it is changing as it must, albeit slowly. The Arbitralwomen organisation has approximately 400 members from all over the world. Many of these women act as counsel and/or sit as arbitrator, even if not as frequently as we should. It is a forum for exchange of news and ideas; referrals of both men and women; mentoring of our younger members; and support for women-heavy teams in the Vis Moot Arbitration Competitions. It holds seminars (open to all genders) and posts news and papers on its website and by listserv on its website (www.arbitralwomen.org).