“I love man as my fellow; but his scepter, real, or usurped, extends not to me, unless the reason of an individual demands my homage; and even then the submission is to reason, and not to man.” ― Mary Wollstonecraft, A Vindication of the Rights of Woman: With Strictures on Political and Moral Subjects, 1792
In one of the earliest works of feminist philosophical literature, Mary Wollstonecraft fervently argued for equal educational and professional opportunities for women, with the ambition of placing the rights of women on equal footing with those of men. More than 200 years later, the underrepresentation of women remains an issue and whilst much progress has been made, the world of international arbitration is no exception.
The issue of diversity is not limited to gender. Ethnic diversity is also a concern. It is well known that arbitral tribunals tend to be not only male dominated, but also dominated by arbitrators of European and North American origin, and this been slow to change with the same arbitrators repeatedly appointed.
In this article, we will consider some of the recent initiatives to improve diversity in the selection and appointment of arbitrators and whether such initiatives have, in fact, made a difference.
The Arbitration Pledge
One of the most significant initiatives in recent years to address the underrepresentation of women on arbitral tribunals has been the Equal Representation in Arbitration (ERA) Pledge launched in 2015 – the ERA Pledge is a commitment, amongst other things, by those who pledge to take steps to ensure that:
- committees, governing bodies, and conference panels in the field of arbitration include a fair representation of women;
- lists of potential arbitrators, or tribunal chairs, provided to parties, counsel or otherwise include a fair representation of female candidates;
- where they have the power to do so, arbitral institutions, counsel, representatives and other appointing bodies/parties appoint a fair representation of female arbitrators;
- gender statistics for appointment (split by party and other appointment) are collected and publicly disclosed; and
- senior arbitration practitioners mentor, sponsor, support and encourage women to pursue arbitrator appointments and enhance their profiles
The African Promise
Gender representation is not the only issue in international arbitration – a particularly common criticism is the absence of cultural and ethnic diversity amongst arbitrators. This gap is particularly significant when it comes to people of colour. Following renowned rap artist Jay Z’s complaint last year that there were only three African-American arbitrators amongst more than 200 arbitrators on the American Arbitration Association’s Large and Complex Cases database, the African Promise was launched in September 2019 to improve the profile and representation of African arbitrators in international arbitration (especially in arbitrations connected with Africa).
The African Promise encourages various arbitration stakeholders to ensure that:
- committees, governing bodies and conference panels in the field of arbitration include a fair representation of Africans;
- in arbitrations connected with Africa lists of potential arbitrators or tribunal chairs provided to or considered by parties, counsel, in-house counsel, arbitral institutions or otherwise include a fair representation of African candidates;
- States, arbitral institutions and national committees include a fair representation of African candidates on rosters and lists of potential arbitrator appointees;
- where they have the power to do so, counsel, arbitrators, representatives of corporates, States and arbitral institutions appoint a fair representation of African arbitrators especially in arbitrations connected with Africa;
- statistics for nominations and appointments of African arbitrators especially in relation to arbitrations connected with Africa are collated by arbitral institutions and made publicly available; and
- senior and experienced arbitration practitioners support, mentor/sponsor and encourage Africans to pursue arbitrator appointments and otherwise enhance their profiles and practice.
Whilst the ERA Pledge and the African Promise have garnered the support of many practitioners and leading law firms globally, have they made a difference?
The Arbitral Institutions
As the saying goes “if you can’t measure it, you can’t manage it”. Perhaps one of the best indicators of the efforts to improve diversity in the selection of arbitrators is the increasing emphasis by arbitral institutions on publishing statistics of arbitral appointments showing, amongst other things, the gender and ethnicity of appointees.
That, combined with the ERA Pledge, has provided a greater degree of transparency and importantly, data on the number of women appointed as arbitrators, and with certain institutions, the origins of those appointments.
As the statistics show, all major arbitral institutions have reported an increase in the number of women appointed as arbitrators. In the ICC, 18.4% of arbitrators nominated or appointed in 2018 were women – an increase of 1.7% from 2017. Of those appointed in 2017, court-appointed arbitrators formed a higher percentage (45%) than the ones appointed by the parties themselves (41%) and co-arbitrators (13.7%).
In 2018, the SIAC reported that 34.3% of its arbitrators appointed by the institution were women. However, the SIAC did not publish statistics on appointments made by parties or co-arbitrators – or the total proportion of cases with at least one female arbitrator on the tribunals.
Turning to the LCIA – in 2014, only 11.7% of arbitrators in LCIA arbitrations were women. That number increased to 21% in 2016 followed by a further increase to 23% in 2018. That said, only one in six (17%) of the appointments were party-selected and whilst this was an encouraging fourfold increase from 2016, it highlights a fundamental issue – whilst more women are being appointed as arbitrators, parties are not appointing women as arbitrators at the same rates as the institutions are. In the case of LCIA, the institution itself selects the majority of female arbitrators (for example, 57% of all appointments of female arbitrators in 2017 were selections by the LCIA Court) and this is double the proportion of party- and/or nominee-appointed female arbitrators.
Whilst it may be too early to assess the effectiveness of the African Promise in enhancing the ethnic diversity in international arbitration, the available statistics show that the geographical make-up of arbitral tribunals still does not truly reflect the diversity of parties and their counsel and that there is still a long way to go in achieving ethnic diversity in international arbitration.
For example, based on the ICC’s 2017 statistics, the ICC appointed arbitrators were made up of 85 different nationalities. However, European candidates constituted more than half (59.5%) of all arbitrators in ICC cases. Furthermore, according to the LCIA’s 2018 statistics, while more than half (57%) of the LCIA Court selected arbitrators were non-British arbitrators, non-British arbitrators selected by the parties and the co-arbitrators only constituted 20% and 27% respectively.
Whilst the recently constituted ICC Court for the 2018 to 2021 term shows an “unprecedented” ethnic diversity with 13% of its members from Africa, 26% from Asia and 15% from Latin America, the ICC has acknowledged that these figures are still “unsatisfactory”.
This is further reflected in in the 2018 Queen Mary/White & Case International Arbitration Survey (the “2018 Queen Mary Survey”). Whilst 60% of the respondents agreed that progress has been made in recent years to increase gender diversity in international arbitration, only 24% of the respondents agreed that the same progress had been made for ethnic diversity.
Whilst the institutions wield significant influence, they can only do so much when arbitrator appointments are not only made by the institutions but usually by the parties themselves.
The Parties and Their Counsel
Often the majority or close to majority of appointments are made by parties and, by extension, their counsel – for example, 58% of ICC cases in 2017 and 46% of LCIA cases in 2018 involved party appointed arbitrators. Whilst parties do frequently refer to institutional lists of arbitrators when nominating and the arbitral institutions are often engaged to select tribunal members, when it comes to selecting presiding arbitrators, party autonomy – a core pillar of arbitration – often has the effect of perpetuating the diversity gap.
One of the main issues is repeat nominations of the “usual suspects”. In the 2018 Queen Mary Survey, the respondents noted that even where diverse options are available, for instance via institutional lists or those collated by party counsel, the final decision by both parties and their legal representatives tends to be to appoint repeat arbitrators. Despite the general consensus that greater diversity is a good thing, the 2018 Queen Mary Survey found that implementing this in practice is met with resistance, not from arbitral institutions, but from parties and as a result, their in-house counsel or external counsel.
Could parties and their counsel do more to achieve greater diversity in international arbitration? Yes – in fact, parties and the lawyers who advise them often play the most significant role in driving greater diversity amongst arbitrators. Encouragingly, there is an increasing focus by in-house counsel on the gender balance of their external legal teams with requirements, amongst others, for gender diversity reporting and monitoring of the makeup of external legal teams throughout the engagement. This is effective and, we argue, should by no means stop there but extend to the full spectrum of engagement – including the selection of arbitrators.
We would submit that greater visibility of female and ethnically diverse arbitrators is key to improving the diversity profile in international arbitration. In order to enhance the visibility of arbitrator candidates, institutions and parties should actively use various tools and resources to broaden the spectrum of candidates they consider.
In order to remove the unconscious biases that prevail in arbitrator selection, it is necessary to move away from primarily relying on “word of mouth” feedback, which is easily susceptible to biases and stereotypes without intervention. Instead, we should aim to achieve a level playing field with comprehensive and objective information that is publicly available to the various stakeholders of international arbitration. For example, lists of arbitrators kept by law firms, publicly available questionnaires indicating arbitrators’ otherwise unknown “soft skills” and case management preferences, and redacted awards that show details of previous cases of candidates could enhance transparency and access to information in arbitrator selection.
Embracing the Standard
There is nothing revolutionary in realising that greater diversity avoids “collective think” and that, only by avoiding this can we truly innovate, progress and evolve. Whilst this article has focused on gender and ethnic diversity, the challenge of increasing diversity in international arbitration extends beyond gender and race, to matters such as age of arbitrators (i.e. bringing younger arbitrators to the panels adjudicating international arbitration cases).
We can also seek to broaden the dialogue on diversity in practical ways such as by arbitral institutions putting in place standardised reporting that encourages the parties and their counsel to review their own internal decision-making processes, policies for arbitrator selection, and internal protocols for arbitrator appointment with a focus on diversity .
Ultimately, it will be the parties and their counsel, not the arbitral institutions, that effectively drive the demand for greater diversity in international arbitration. The responsibility in achieving equal representation lies with all stakeholders in the arbitration community to collectively exercise their influence to achieve meaningful and sustainable change. It’s not simply a question as to who has the most power to effect this change but whether we, in our individual roles as members of the arbitration community, are using our own power to drive that change.