What can arbitral institutions do to increase gender diversity in arbitration?

This blog post is co-authored by Delilah van Tol (Student in International and European Law at The Hague University of Applied Sciences) and Dr. Barbara Warwas and it was first published in the Commercial Arbitration Europe website.[1]

Diversity in international arbitration has been a widely discussed topic. All the more so since the Covid-19 pandemic has put the spotlight on the (un)equal playing field for women and minorities within the professional market due to the disproportional burdens of unpaid care performed by these actors. While debate is increasing, positive developments in the field of arbitration have been rather slow to come by. This is quite surprising, for a few reasons. For one, progress in gender (and other forms of) diversity can be seen in many other professions, so international arbitration obviously lags behind. Moreover, given the many innovative proposals to improve efficiency of the arbitration process in the recent year, more diversity within arbitration tribunals seems like the most obvious solution to delays caused by the lack of availability of repeat arbitrators (among other delay factors). So there are good practical reasons to promote diversity in arbitration too. All this also begs the question of whether international arbitration remains an attractive field for new market entrants for whom diversity and inclusion are the social and professional norms as basic as multilingualism or a solid legal degree.

Which actors in the international arbitration scene should take the lead in the drive for more diversity? In this blog post we scrutinize arbitral institutions. We do so because arbitral institutions are the most powerful actors when it comes to increasing access to institutional appointments of arbitrators. Also, some top arbitral institutions are considered to be global trend-setters or even regulatory actors in the field.

In the sections below we critically evaluate a few selected institutional initiatives in the field of gender diversity and we formulate recommendations for future institutional actions. 

Institutional and Cross-institutional initiatives

Looking at the initiatives to “narrow gender disparity” by three prominent arbitral institutions in Europe such as the ICC Court, the SCC Arbitration Institute, and the LCIA they can be categorized as follows. First, publication of statistics on gender representation among institutional arbitrators and institutional policies to promote gender diversity in the selection process. Second, participation in pledges on equal representation in arbitration or networking activities.

Regarding the publication of statistics, raising awareness of the problem and pointing to the actual involvement of female arbitrators in ICC arbitration tribunals is certainly an important development. All three institutions under analysis regularly provide information in this regard. This activity also falls within the ongoing trend for increasing transparency in international arbitration. But is it a real gamechanger when it comes to the current status quo of “pale, male and stale” tribunals? Not so much. The statistic themselves demonstrate that there is a ample room for improvement. Although the ICC Court advertises it as a historical record, the 2019 Statistics show that only 21% of all arbitrators sitting in ICC tribunals in 2019 were women.[1] This is far from ideal when it comes to gender equality among ICC arbitrators.

Other institutions seem to be aware of the gender bias when it comes to arbitrator appointments. In 2019 the SCC conducted a study survey of all SCC arbitrator appointments between 2015-2019 through which 1251 appointments were reviewed against such “diversity markers” as gender, age, nationality, and repeat appointments. Again, of all reviewed appointments (be it done by the SCC Board, the parties, or co-arbitrators) the general breakdown between male and female appointments was 80/20. Of all actors involved in appointments of institutional arbitrators (the SCC Board, parties, and co-arbitrators), the most inclusive approach was recorded on the side of the SCC Board: in 30% of all appointments by the SCC Board (35% of the total amount of reviewed appointments) arbitrators were women. In 2019 the total female appointments by the SCC Board amounted to 32.4%.[2] The LCIA also publishes statistics regarding female appointments as LCIA arbitrators, which demonstrate that the LCIA indeed takes the gender diversity seriously. For example, in 2019 among all arbitrators selected by the LCIA Court, 48% were women.[3]

All three institutions have their representatives in the Cross-Institutional Task Force on “Gender Diversity in Arbitral Appointments and Proceedings” that published their Report in 2020.[4] The Report is a milestone for a more systematic discussion on the question of gender (in)balance in arbitration, including detailed statistical overview from several arbitral institutions and the recommendations for future actions. It also gives insights into institutional policies used to promote female arbitrators among institutional appointments.

So, what do these policies say with regard to the three institutions discussed here? According to the Report that refers to the ICC Court’s “Note to National Committees and Groups on the Proposal of Arbitrators” of 2018 the ICC encourages the National Committees to promote gender diversity when making proposals for potential appointments.[5] The SCC Policy on Appointment of Arbitrators directly speaks about the need to support diversity of arbitrators and the explanatory note on the SCC website states that “where there are many arbitrators of similar qualifications, the Board will actively consider diversity of gender, age and national origin.”[6] The LCIA Court would also include more than one female appointee when requested to select arbitrators.[7] Similar practices concern the requests from the parties to suggest potential candidates.[8]

Regarding the participation in pledges, all three arbitral institutions under analysis are signatories of the Equal Representation in Arbitration Pledge (the ERA Pledge) which is by now one of the largest initiatives to promote gender equality in international arbitration.[9] The ERA Pledge has two objectives: “to improve women’s profile and representation in arbitration and to appoint women as arbitrators on an equal opportunity basis”.[10] The ERA Pledge does not contain certain quotas or targets. Nevertheless, it advocates actions that aim at promoting more systematic changes within the international arbitration community “wherever possible”. For example, “equal opportunity” should be assessed based on equal qualifications test, while “fair representation” should be assessed with regard to different activities on a case-by-case basis.[11]  The Pledge supports the female appointments by references to external databases of female arbitrators and an application form for further assistance of its Steering Committee in searches for female arbitrators. It also compiles a list of relevant events on the topic of (gender) diversity and a news section including relevant readings.

Are These Activities Sufficient?

Both activities described above such as the publication of statistics on the institutional appointments of female arbitrators and the participation in pledges by arbitral institutions are certainly commendable. The question is whether they are enough? Realising the prominent role of arbitral institutions within the international arbitration community, we recommend that arbitral institutions take more proactive approach to regulating (gender) diversity in international arbitration by taking more concrete steps towards gender equality among arbitration actors. Although some activities in this regard already exist, we recommend that arbitral institutions work towards more systematic and collaborative strategies in the following fields: education and training including scholarships for women and representatives of other minorities, unified regulations of paid internship programmes promoting diverse candidates including women, and the revision of institutional arbitration rules to require appointments of diverse arbitrators including women as a norm of the selection process. This should be accompanied by raising awareness activities aiming at further encouraging all international arbitration actors including parties, in-house counsel, external lawyers, and arbitrators to change the current status quo. We suggest that only concrete and far-reaching steps can bring in those important changes, which will be beneficial for the quality of institutional arbitration and the economic efficiency of institutional proceedings.

[1] ‘Diversity in Arbitration’ (ICC: Global Issues and Trends) <https://iccwbo.org/global-issues-trends/diversity/diversity-in-arbitration/> accessed 4 March 2021.

[2] ‘The ICCA Reports No. 8: Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings’ 118.

[3] ‘Annual Casework Report 2019’ <https://www.lcia.org/News/annual-casework-report-2019-the-lcia-records-its-highest-numbe.aspx>.

[4] ‘The ICCA Reports No. 8: Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings’ (n 3).

[5] ibid 30.

[6] ‘SCC Policy: Appointment of Arbitrators’ s II (6) <https://sccinstitute.com/media/220131/scc-policy-appointment-of-arbitrators-2017.pdf>; ‘Arbitration Institute of the Stockholm Chamber of Commerce: Appointment of Arbitrators’ <https://sccinstitute.com/about-the-scc/appointment-of-arbitrators/>.

[7] ‘The ICCA Reports No. 8: Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings’ (n 3) 29.

[8] ibid.

[9] ‘Equal Representation in Arbitration Pledge’ <http://www.arbitrationpledge.com/about-the-pledge>.

[10] ibid.

[11] ‘Equal Representation in Arbitration Pledge’ (n 10).

[1] Dr. Barbara Warwas, “What can arbitral institutions do to increase gender diversity in arbitration?” (2021) Commercial Arbitration Europe < https://commercialarbitrationineurope.wordpress.com/2021/04/13/what-can-arbitral-institutions-do-to-increase-gender-diversity-in-arbitration/ > last accessed on 28 January 2022