ETHNIC IMBALANCE IN INTERNATIONAL ARBITRATION: CAUSE OF CONCERN?

Reconstructing WIPO’s Arbitration Framework to Protect Art and Cultural Heritage: A case for Ethnic Balance

Authors

Ishan Khare & Pratyush Nigam
Institutional affiliation: National University of Juridical Sciences, Kolkata

Abstract

The author aims to highlight why ethnic imbalance in international arbitration is a cause of concern when it comes to curtailing various instances of Intellectual Property (IP, herein thereafter) violations involving cultural appropriation by the industrialised West, for commercial gain. It is argued that such instances keep happening because there is no comprehensive Dispute Resolution Mechanism that caters to such complex yet unique disputes. Consequently, indigenous communities are compelled to resort to litigation. It is argued that there is a need to revamp the Arbitration Mechanism of WIPO to make it more inclusive. Thus, there is a pressing need for more adequate representation of arbitrators from Indigenous Communities who would adjudicate upon a uniform set of rules catering to the complex nature, and renegotiate the status quo that hitherto has been anti-indigenous. .

  1. Introduction

The concern of ethnic imbalance and diversity in the international framework has been subject to substantial discourse recently. Presently, arbitration is dominated by the same handful of individuals who are repeatedly reappointed     .[1] If a judicial set up becomes exclusionary, then the quality of adjudication is severely impacted.[2] In such a framework, there is a disjunction between the preconceived notions of adjudicators and the interest of the parties which results in proceedings being viewed from a biased perspective.[3]

Currently, we see numerous Intellectual Property (‘IP’) Disputes involving cultural appropriation.[4] Such disputes pertain to multiple jurisdictions[5] and hence, must be subject to international arbitration.[6] However, currently, these disputes are being subjected to litigation[7] and aggrieved parties, i.e. the developing countries, do not consider it wise to resort to the existing arbitration mechanism of the World Intellectual Property Organisation (‘WIPO’).[8] In this blog post it is argued that this practice is the result of exclusionary arbitral framework of Europe which does not cater to the non-legal and non-commercial nature of disputes pertaining to indigenous culture. In order to achieve this, it is essential that there is an ethnically balanced arbitration framework in place.

This blog post has been divided into four parts. In part II, we shall identify the nature of the problem by revisiting the perspective of the municipal legal framework of the West towards cultural appropriation and how, in the absence of a uniform law, parties must refer their disputes to arbitration. In part III we shall statistically interpret the prevailing, ethnically imbalanced state of affairs of International Arbitration Institutions and how this? makes it difficult to efficiently arbitrate cultural heritage disputes. Consequently, changes have been suggested to ensure ethnic balance and contemplate a uniform framework that efficiently caters to instances of cultural appropriation. Finally, part IV concludes.

  1. Cultural Appropriation: The nature of the Problem

The phrase cultural appropriation corresponds to the stealing of indigenous culture by the Industrial West typically for fashion, aesthetic and theatrical purposes.[9] Instances of cultural appropriation include, Selena Gomez, depicting bindi which is sacrosanct to Hinduism, by commercially exploiting it as a fashion symbol.[10] In another such instance, Victoria’s Secret mocked the genocide of indigenous people, by appropriating the native Indian headdress.[11] A similar trend can be seen in the case of Yoga, wherein the Vedic philosophy is being reduced to a form of physical exercise.[12] Such perspective is problematic because indigenous communities have strived hard to ensure the survival of their culture over generations and thus, its appropriation by the Western World for merely aesthetic and theatrical purposes, is offensive to the practitioners of such cultures.[13]

Currently, the municipal adjudication framework of the industrialised West has failed to protect the interests of the indigenous communities as reflected in ‘The Lion King’ case and the ‘Navajo’ case. The Swahili phrase ‘Hakuna-Matata’, in the movie The Lion King, was misappropriated byDisney.[14] However, the U.S. Patent and Trademark Office granted trademark to Disney for the phrase, despite several protests.[15] Similarly, the state of Navajo alleged trademark infringement on the part of U.S. Fashion company Urban Outfitters who had misappropriated sacred patterns and prints and hence, violated the Indian Crafts and Arts Act, a domestic law of the United States.[16] Urban Outfitters pleaded the fair use defense and after a long drawn court battle reflective of high costs and delayed justice, Navajo negotiated an out of court settlement with Urban Outfitters.[17]

According to Professor Shamnad Basheer, frequent instances of Cultural Appropriation are ethically inaccurate and reflective of colonial oppression.[18] He argues that such instances occur due to the absence of uniform set of rules to tackle cultural appropriation.[19] While, the General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples in an attempt to protect cultural heritage, in 2007,[20] due to its non-binding nature, this piece of legislation has failed to curb instances of cultural appropriation.[21] Another such initiative was taken by the WIPO itself, when it formed an Intergovernmental Committee (IGC) in 2001.[22] However, in IGC sessions, many Asian countries have expressed significant differences in interpretation of terms like ‘indigenous’ and ‘traditional knowledge’ with their American counterparts.[23]

Amidst various instances of cultural appropriation and no clear and uniform laws to tackle the same, the current IP regime is prone to Cultural Appropriation Disputes, as seen in the Lion King and Navajo case.[24] An interesting take away from these cases is that in both the indigenous communities submitted to the jurisdiction of the West. As reflected in the Navajo case[25] indigenous communities often resort to litigation to resolve such disputes.[26] However, in litigation, the possibility of an inherent conflict of interest cannot be ruled out because the judicial proceedings are not conducted in a neutral place; indigenous communities are represented by local council, and the judge applies her country’s rules.[27]

Further, such disputes pertain to multiple and often conflicting laws of different jurisdictions and hence, they cannot be solved by litigation which also leaves a ‘residue of hard feeling’ between the parties.[28] Disputes of this nature must be resolved harmoniously and impartially by an arbitration mechanism that is reflective of various ethical norms, customary rules and protocols.[29] In fact this was the premise behind the first arbitral institution i.e. the Maritime Arbitration Commission, established in 1930.[30] Such framework must also be in place for IP disputes in furtherance of Cultural Appropriation and parties should not resort to litigation and bind themselves to the jurisdiction of the West.

  1. The Way Forward: Ethnic Balance in WIPO’s Arbitral Framework

WIPO is determined to safeguard cultural heritage and had envisaged an arbitration framework way back in 1994,[31] a facet of which was also to resolve cultural heritage disputes in a more sustainable and efficacious way.[32] In this reference, WIPO has often addressed the potentiality of Arbitration in resolving Art and cultural related disputes.[33]

     Interestingly, the roots of this non-uniformity in stem out of the on going cultural differences themselves. .[34] Western European Countries and the United States favour      arbitration however, developing countries from Latin American, Arab and Asia have their reservations in resorting to international arbitration.[35] The sociological framework reflective of numerous instances of IP violations and the cultural appropriation, begs the question as to why the developing countries submit themselves to the jurisdictions of the West and not resort to international arbitration framework, of the WIPO, so as to protect their cultural heritage.

The Australian ‘Carpet Case’, Milpurrurru & Others v. Indofurn Pty Ltd[36] captures the essence of the aforesaid quandary. In this case, the works of aboriginal artists were being reproduced without their authorisation, by industrial manufacturers of carpets. The carpet manufacturers based their defense on technicality and contended that they did not per se reproduce any works of the artists.[37] However, the court acknowledged the fact that in such disputes non legal issues play a vital role and consequently framed issues on equity and ‘moral rights’. Hence, in such disputes traditional remedies of arbitration such as monetary damages may not be satisfactory to the aggrieved party. Parties expect equitable reliefs from courts and hence avoid arbitration. Therefore, such disputes, if referred to arbitration pose a unique kind of challenge before the arbitration panel as the subject matter necessarily may not be legal or commercial in its strictest sense and requisite cultural, emotional, historical, religious, spiritual, ethical and moral elements may be involved.

However, given the prevailing ethnic imbalance in the present arbitration framework, rulings pertaining to non-legal issues, reflective of the Carpet Case are quite unlikely. Currently, arbitration in the UK is restricted to a particular lobby, the members of which often get reappointed in various arbitral institutions.[38] The problem lies in the underrepresentation of ethnic minorities which stems from a cultural exclusivity in the existing framework. Data from 2018 of the International Chamber of Commerce (‘ICC’) entails the dominance of Western European members as arbitrators who constitute more than 40% of the total arbitrators.[39] The London Court of International Arbitrators has 57% of arbitrators from England. The ICC (For the term of 2018 – 2022), has a marginally better record at representation with 13% representation from Africa and 26% from Asia, however, Europe continues to dominate membership with a disproportionate 40% representation.[40]

As pointed out by Lord Neuburger, this problem stems from an exclusionary framework of the European Legal Circle which is dominated by upper class white males.[41] This has impacted all the arbitral institutions in Europe and consequently the arbitral framework of WIPO, has negligible representation of Asia and Africa and is dominated by American and European members.[42] WIPO’s commitment to ensure ‘IP protection to Cultural Heritage cannot be fulfilled merely by using ‘its international contacts in individual cases’.[43] We need an ethnically balanced framework. In 2016, acknowledging equal representation, WIPO pledged towards ensuring gender diversity[44] however, a similar determination towards geographic diversity is yet to be seen.

Scholars have rightly suggested that lack of diversity encourages ‘Group Thinking’ wherein the dominant idea of a cohesive group overrides any possibility of realistic appraisal.[45] Likewise, the dominance of the Europeans amidst ethnic imbalance in international arbitration make it immensely difficult to fathom a framework wherein IP disputes revolving around cultural heritage, are dealt with in a considerate manner, and not judged merely in accordance to their commercial value.

However, owing to the private nature of the arbitration proceedings, it is difficult to ascertain what has been the actual impact of ethnic imbalance in arbitration framework of the WIPO in effectively resolving IP disputes over cultural appropriation.[46] Empirical Research is difficult to conduct since only the cases that are particularly interesting or cases which are appealed are reported.[47] The actual tangible impact of instances of cultural appropriation and its correlation with the current regime of arbitration proceedings is an example of the classic ‘evidence of absence or absence of evidence’ notion.[48] What we know so far, is that various instances of cultural appropriation are seen on a regular basis which itself speaks volumes about the efficacy of an ethnically imbalanced arbitration mechanism.

The need of the hour is to revamp the arbitration mechanism by increasing the representation of ethnic minorities. Only with adequate representation, indigenous communities can reconstruct the predetermined ‘Group Thinking’ of ‘European’ arbitrators. The way forward is to acknowledge and include various concepts, procedures, customary rules and protocols in WIPO’s arbitral framework. Such framework was also envisaged when the Maritime Arbitration Commission was set up.[49]

There are numerous indigenous cultures and adjudicating them poses a unique set of legal and sociological considerations. However, appropriation of all unique cultures has a trait of commonality, i.e. they share a history of colonial oppression.[50] Therefore, while including the various aforementioned concepts in arbitral mechanism, WIPO can adopt the legal culture of Ogus Argues i.e. incorporating a network of various cultures, laws and protocols,[51] based on the common trait of colonial oppression. This may lay the foundation of a uniform model law as well. However, such changes can only be done when we have ethnic balance in the international arbitration framework.

  1. Conclusion

The WIPO is committed towards safeguarding cultural heritage and yet we still see numerous instances of cultural apparition which at times, are normalised by the municipal adjudicating authorities. Therefore, it is imperative for the parties to file cultural heritage claims before a neutral adjudicating authority. Sadly, in the current international arbitration framework, due to ethnic imbalance, cultural heritage disputes cannot be pleaded. These disputes pertain to substantial non legal issues which a closed group of European arbitrators cannot adjudicate upon. Therefore, in international arbitration ethnic imbalance poses a vital concern when it comes curbing cultural appropriation and efficaciously adjudicating IP disputes related to cultural heritage. Additionally, if we have an ethnically balanced arbitration framework which acknowledges a network of various cultures then perhaps it will be a great step towards adopting a uniform model law.


[1] Natalia Giraldo Carrillo, The ‘Repeat Arbitrators’ Issue: A Subjective Concept, Int. Law: Rev. Colomb. Derecho Int.  no.19 Bogotá July/Dec. 2011, p. 75.

[2] Diversity in the Judiciary: A Conversation with Deanell Tacha, Kansas Law Review, Vol. 59, 2011, p. 1037,

[3] Naimeh Masumy, Is Increasing Gender and Ethnic Diversity in Arbitral Tribunals a Valid Concern and Should Arbitral Institutions Play a Greater Role Ensuring Diversity?, Fordham International Law Journal, June 15, 2021, available at https://www.fordhamilj.org/iljonline/2020/11/23/is-increasing-gender-and-ethnic-diversity-in-arbitral-tribunals-a-valid-concern-and-should-arbitral-institutions-play-a-greater-role-ensuring-diversity (Last visited on June 15, 2021).

[4] WIPO Magazine, Curbing cultural appropriation in the fashion industry with intellectual property, August 2019, available at https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html, (Last visited on June 15, 2021).

[5] Benedetta Ubertazzi, Exclusive Jurisdiction in Intellectual Property 139 (2012).

[6] Julia A. Martin, Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution, Stanford Law Review , Apr., 1997, Vol. 49, No. 4 (Apr., 1997), pp. 917, 927.

[7] Petition, Navajo Nation v. United States, Inter-Am. Comm’n H.R., (Mar. 2, 2015), available at nsn.gov/docs/sacredsites/Navajo%20Nation%20Petition%20to%20IACHR%20March%202%202015.pdf

[8] Pieter Sanders, Comparative Arbitration Practice and Public Policy in Arbitration 165 – 167 (1986).

[9] James Young, Profound Offence and Cultural Appropriation, 2005, Vol. 63, No. 2, p. 135.

[10] Gregory Delli Carpini Jr., Selena Gomez’s Bindi Styling: Offensive? Bollywood Star Priyanka Chopra Talks About the Star’s Usage, May, 22, 2019, available at https://www.billboard.com/articles/columns/the-hook/1563147/selena-gomezs-bindi-styling-offensive-bollywood-star-priyanka (Last visited on June 15, 2021).

[11] Avery Matera, 5 Times Victoria’s Secret Was Accused of Cultural Appropriation, November 7, 2018, available at https://www.teenvogue.com/gallery/victorias-secret-fashion-show-cultural-appropriation (Last visited on June 15, 2021).

[12] K. S. Joshi, On the Meaning of Yoga, Philosophy East and West, Vol. 15, No. 1 (Jan., 1965), pp. 53.

[13] Brigitte Vézina, Cultural Appropriation Keeps Happening Because Clear Laws Simply Don’t Exist, December 24, 2019, available at https://www.cigionline.org/articles/cultural-appropriation-keeps-happening-because-clear-laws-simply-dont-exist/ (Last visited on June 15, 2021).

[14] Kyle Jahner, No (Legal) Worries for Disney in ‘Hakuna-Matata’ Trademark Row, January 7, 2019 available at https://news.bloomberglaw.com/ip-law/no-legal-worries-for-disney-in-hakuna-matata-trademark-row (Last visited on June 15, 2021).

[15] Id.

[16] Petition, Navajo Nation v. United States, Inter-Am. Comm’n H.R., (Mar. 2, 2015), available at nsn.gov/docs/sacredsites/Navajo%20Nation%20Petition%20to%20IACHR%20March%202%202015.pdf

[17] Nicky Woolf, Urban Outfitters settles with Navajo Nation after illegally using tribe’s name, November 19, 2016, available at https://www.theguardian.com/us-news/2016/nov/18/urban-outfitters-navajo-nation-settlement (Last visited on June 15, 2021).

[18] Shamnad Basheer, Disney can use ‘Hakuna Matata’, December 21, 2018, available at https://www.hindustantimes.com/analysis/hakuna-matata-trademark-controversy-disney-is-well-within-its-rights-to-do-so/story-TptOiNKVFfyvrb14mtH6tN.html (Last visited on June 15, 2021).

[19] Id.

[20] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, Art. 31, 2 October 2007, A/RES/61/295.

[21] Samantha K. Nikic, Liberte, Egalite, Fraternite: The United Nations Declaration of the Rights of Indigenous Peoples Fails to Protect Hopi Katsinam from the Auction Block in France, 41 Brook. J. Int’l L. 407 (2015).

[22] WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders—WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999),p. 237, available at https://www.wipo.int/edocs/pubdocs/en/tk/768/wipo_pub_768.pdf.

[23] Christoph Antons, Asian Borderlands and the Legal Protection of Traditional Knowledge and Traditional Cultural Expressions, Modern Asian Studies, JULY 2013, Vol. 47, No. 4 (JULY 2013), pp. 1403, 1414.

[24] Petition, Navajo Nation v. United States, Inter-Am. Comm’n H.R., (Mar. 2, 2015), available at nsn.gov/docs/sacredsites/Navajo%20Nation%20Petition%20to%20IACHR%20March%202%202015.pdf

[25] Petition, Navajo Nation v. United States, Inter-Am. Comm’n H.R., (Mar. 2, 2015), available at nsn.gov/docs/sacredsites/Navajo%20Nation%20Petition%20to%20IACHR%20March%202%202015.pdf

[26] Elizabeth Jenkins, Lawsuit over cultural appropriation of Native designs proceeds, despite Neiman Marcus bankrupty, June 1, 2020, available at https://www.alaskapublic.org/2020/07/01/lawsuit-over-cultural-appropriation-of-native-designs-proceeds-despite-neiman-marcus-bankrupty/ (Last visited on June 16, 2021); Judith Soto, Hands Off My Heritage: Cultural Appropriation And Trademarks, March 6, 2019, available at https://www.trademarknow.com/blog/hands-off-my-heritage-cultural-appropriation-and-trademarks (Last visited on June 15, 2021).

[27] Martin, supra note 6, 929.

[28] Id at 930, 935.

[29] See Heinz Strohbach, Role of Maritime Arbitral Institutions in the CMEA-Member Countries, in Internationa Council for Commercial Arbitration, New Trends in the Development of Internation Commercial Arbitration 302, 304 (Pieter Sanders ed., 1982).

[30] Id.

[31] Francis Gurry, The WIPO Arbitration and Mediation Center and its Services, The American Review of International Arbitration, Vol. 5, No. 2, 1994, pp. 197.

[32] Sarah Theurich, Alternative Dispute Resolution in Art and Cultural Heritage Explored in the Context of the World Intellectual Property Organization’s Work, p. 587, available at https://www.wipo.int/export/sites/www/amc/en/docs/theurichbeitrag.pdf.

[33] WIPO, WIPO Alternative Dispute Resolution (ADR) for Art and Cultural Heritage, June 15, 2021, available athttps://www.wipo.int/amc/en/center/specific-sectors/art/ (Last visited in June 15, 2021).

[34] Sanders, supra note 8.

[35] Martin, supra note 6, 958

[36] Milpurrurru, G. v Indofurn P/L, [1994] FCA 975.

[37] Milpurrurru, G. v Indofurn P/L, [1994] FCA 975.

[38] Carrillo, supra note 1.

[39] Gemma Anderson et al, Diversity in International Arbitration, Nationality/Geographic Diversity, March 1, 2020, available at https://uk.practicallaw.thomsonreuters.com/w-019-5028?transitionType=Default&contextData=(sc.Default)&firstPage=true (Last visited on June 15, 2021).

[40] Id.

[41] Lexis Nexis, Barriers to entry—the lack of diversity in international arbitration, July 15, 2015, available at https://www.lexisnexis.co.uk/blog/dispute-resolution/barriers-to-entry-the-lack-of-diversity-in-international-arbitration (Last visited on June 15, 2021).

[42] WIPO, WIPO Arbitration and Mediation Centre, June 15, 2021, available at https://www.wipo.int/amc/en/center/background.htmlon and mediation centre (Last visited on June 15, 2021).

[43] Id.

[44] WIPO, “The Pledge” – Promoting Equal Representation in Arbitration, March 8, 2017, available at https://www.wipo.int/women-and-ip/en/news/2017/news_0001.html (Last visited on June 15, 2021).

[45] Irving Lester Janis, Group Think 84 (1982).

[46] Christopher R. Drahozal, Of Rabbits and Rhinoceri: A Survey of Empirical Research on International Commercial Arbitration, 20 J. Int’L Arb. (2003), p. 23, 24.

[47]  W. Laurance Craig et al, International Chamber of Commerce Arbitration 338n. 62, 639 n.39 (2000).

[48] Loes Knaapen, Being ‘evidence-based’ in the absence of evidence: The management of non-evidence in guideline development, Social Studies of Science Vol. 43, No. 5 (October 2013), pp. 681.

[49] Strohbach, supra note 29.

[50] Basheer, supra note 18; The Week, What is cultural appropriation?, January 20, 2020, available at https://www.theweek.co.uk/cultural-appropriation (Last visited on June 15, 2021).

[51] Anthony Ogus, The Economic Basis of Legal Culture, 22 Oxford J. Leg. Stud., 2002, p. 419.

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