Equal Representation in Arbitration Pledge

By Delilah van Tol

INTRODUCTION

Diversity is still a part of ADR that lacks and needs to be more focused on. Arbitral institutions have many initiatives to gain diversity.[1] One of the initiatives done by the arbitral community as a whole is the Equal Representation In Arbitration Pledge.[2] Research done by Women in Dispute Resolution (WIDR) has shown a low rate of women being chosen as neutrals.[3] (See footnote for statistics)

AIMS

The pledge originated from dinners hosted by the London Court of International Arbitration(LCIA) and The Arbitration Institute Of the Stockholm Chamber of Commerce (SCC).[4] In the introduction of the pledge are two general principles set out; firstly, to improve women’s profile and representation in the arbitration and appoint women as arbitrators on an equal opportunity basis.[5] As it is stated that women should be appointed arbitrator on an equal opportunity basis does not mean that the ERA pledge made a quota or target.[6] They decided that the stakeholders should get a more flexible standard to be acceptable. As stated on the Equal Representation in Arbitration Pledge website, “The Pledge aspires to be a first step in the direction of achieving more equal representation of all under-represented groups in our arbitration community.”[7]

Many have signed this pledge; for example, The European Commission has signed the pledge this year![8]

INITIATIVES

When a party becomes signatory, they need to take steps that are reasonably available to them to ensure the following[9];

First of all, female candidates' fair representation in the list of potential arbitrators or tribunal chairs provided to or considered by parties, counsel, in-house counsel, etc.[10] This increases the chance of appointing women as they are as qualified as men and increasing diversity.

Furthermore, the ERA Pledge wants the signatories to ensure that where there is the power to do so, the counsel, arbitrators, representatives of corporates, states, and arbitral institutions appoint a fair representation of female arbitrators.[11] This is a semi follow up from the first step that needs to be taken. When a potential list of female arbitrators is made, appointing a female is easier to accomplish.

Moreover, gender statistics are collated and made publicly available.[12] Making the statistics visible for the world, which makes it more attractive to create diversity.

Moreover, lastly, experienced arbitrators are encouraged to take up the mentor role.[13] The mentor role provides female arbitrators with support and guidance that might be needed and enhance their profile and practices.[14]

Statistics have shown that diversity has doubled in the last four years and that the ERA pledge a positive effect has on increasing diversity.[15]

SIGNATORY PARTY

The signatory parties exist out of lawyers, arbitrators, representatives of corporates, states, arbitral institutions, academics, and others involved in the practice of international arbitration. [16]Nevertheless, you can also become a signatory party. If you want to increase diversity in Alternative Dispute Resolution, this might be the first step in the right direction!

If you also want to be part of supporting Equal Representation in Arbitration you can take the pledge on: http://www.arbitrationpledge.com/take-the-pledge

Moreover, on the website are also events planned regarding the ERA pledge and diversity that might be interesting to check out.

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[1] Gemma Anderson, Richard Jerman and Sampaguita Tarrant, Morrison & Foerster, ‘Diversity in International Arbitration’ [2020], Thomas Reuters Practical law https://uk.practicallaw.thomsonreuters.com/w-019-5028?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_pageContainer > Accessed 22-12-2020

[2] Gemma Anderson, Richard Jerman and Sampaguita Tarrant, Morrison & Foerster, ‘Diversity in International Arbitration’ [2020], Thomas Reuters Practical law https://uk.practicallaw.thomsonreuters.com/w-019-5028?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_pageContainer > Accessed 22-12-2020

Equal Representation in Arbitration Pledge, ‘Commentary to the pledge’ [2020] http://www.arbitrationpledge.com/about-the-pledge > Accessed 22-12-2020

[3] Gina Viola Brown & Andrea Kupfer Schneider, ‘GENDER DIFFERENCES IN DISPUTE RESOLUTION PRACTICE: REPORT ON THE ABA SECTION OF DISPUTE RESOLUTION PRACTICE SNAPSHOT SURVEY’(2014) Marquette University Law School https://poseidon01.ssrn.com/delivery.php?ID=568002118065020075073002124085011066118047006051032007118024113118017126026100064004017058006012005023096083085075126002000090055058054000080077094009120024030074048084016067125117014090021004114110019067030007109113092010011075102064119096075020082&EXT=pdf > Accessed 22-12-2020

ICSID, 'The ICSID Caseload – Statistics’ [2020]

https://icsid.worldbank.org/sites/default/files/publications/The%20ICSID%20Caseload%20Statistics%20%282020-2%20Edition%29%20ENG.pdf > Accessed 23-12-2020

[4] LCIA, ‘Launch of the Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings’ (2020) https://www.lcia.org/News/report-of-the-cross-institutional-task-force-on-gender-diversity.aspx > Accessed 22-12-2020

[5] Equal Representation in Arbitration Pledge, ‘Commentary to the pledge’ [2020] http://www.arbitrationpledge.com/about-the-pledge > Accessed 22-12-2020

[6] Ibid.

[7] ibid.

[8] European Commission, ‘Gender equality: Commission ensures excellence and improves gender balance in trade and investment arbitration’ [2020] https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2485 > Accessed 23-12-2020

[9] Gemma Anderson, Richard Jerman and Sampaguita Tarrant, Morrison & Foerster, ‘Diversity in International Arbitration’ [2020], Thomas Reuters Practical law https://uk.practicallaw.thomsonreuters.com/w-019-5028?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_pageContainer > Accessed 22-12-2020

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] SCC, ‘First Report on Gender Diversity in Arbitration’ (20 August 2020) https://sccinstitute.com/about-the-scc/news/2020/first-report-on-gender-diversity-in-arbitration/ > Accessed 22-12-2020

[16] Equal Representation in Arbitration Pledge, ‘Commentary to the pledge’ [2020] http://www.arbitrationpledge.com/about-the-pledge > Accessed 22-12-2020