Diversity in International Arbitration
Author: Roudro Mukhopadhyay, OP Jindal University
In the world of International Arbitration, one could only see the space is being dominated by stereotypical white men and the substantial absence of diversity. In 2015, the “Arbitration Pledge” was drawn up in acknowledgment of the lack of women in arbitral tribunals by representatives of the international arbitration community. But it’s worth remembering that the absence of diversity goes beyond gender, cultural and geographical diversity are missing too. In this new age, where women all over the globe are fighting for equality and equity, a diverse board in arbitration will improve the diverse viewpoints will contribute to better choices and the consistency of decision making.
With unique benefits such as versatility, neutrality, speed, low cost, arbitration is known as an efficient alternative dispute settlement process. In virtually any jurisdiction including parties from all around the globe, it is widely accepted and used, so one could infer that arbitration encourages and enhances diversity in the dispute settlement process. In the international field, arbitration helps in dispute resolution and it incorporates aspects of civil law procedure and common law procedure, thus giving the parties a substantial incentive to design the arbitral procedure by which their conflict will be settled. Businesses also have international arbitration arrangements with other companies in their contractual contracts, such that whenever a dispute occurs with regard to the arrangement, they are obliged to arbitrate. Consequently, there’s been a growth in understanding that there’s a lack of diversity in international arbitration.
For decades, gender and racial differences in the workplace have become the rule, considering the growing reports of sexism and disadvantage experienced by women and ethnic minorities worldwide, with no meaningful steps to counter them. Globally, most businesses, law firms, government departments, and elected offices understand the need for diversity to strengthen decision-making and creativity and it’s no different in the field of international arbitration. During the London International Disputes Week in 2019, Vyapak Desai devised the term “RAGE” to address the issue of diversity in international arbitration and classify it amongst different groups, RAGE: Race, Age, Gender, and Ethnicity.
It should be well noted that there hasn’t been a scarcity of women lawyers in international arbitration, but rather, the world of the arbitrators is dominated by “white” English speaking men for the past couple of years. Women have been as frequent as their male colleagues in law schools over the past few decades, including at the associate level in law firms. However, this accomplishment is not mirrored at all ranks, since they are much less likely to become partners in law firms or in a general way to access leadership roles. This is also referred to as the “glass ceiling” of women; an unseen barrier prohibiting them from accessing places at the upper level. There is no exception to international arbitration since women are much less likely to be appointed as arbitrators, much less likely to be arbitrators in’ big cases.’[i]
In the last few years, changes in gender equality have been made largely due to the efforts of the Arbitral Women who introduced the Equitable Representation in Arbitration (ERA) Pledge calling for the appointment of women arbitrators on an equal opportunity basis.[ii] Consequently, the numbers of female positions are improving. The number of women named as arbitrators doubled in 2018 relative to 2015, according to the ICC’s statistics. The number of women serving as president of the tribunal or sole arbitrator has also risen, but diversity is not just a gender problem in either situation, and there is still a lot of space for regional, age, cultural and ethnic diversity to be strengthened. ICC Court Secretary- General Alexander G. Fessas also had to say that, “The ICC understands the significance and advantages of gender balance in arbitration and is pleased to have contributed to this critical research. It is promising to see progress on this topic, but further work still needs to be done.”[iii]
In promoting diversity in international arbitration, in ensuring greater diversity, arbitral institutions play a key role in recognizing arbitral institutions as bodies having the capacity to achieve diversity through tribunals. The parties are free to decide the number of arbitrators and to compromise on the name of the arbitrators, but institutional guidelines lay out basic principles for the default selection procedure if they do not define them. In that way, arbitral agencies also play an important part in the appointment of arbitrators, as by nominating arbitrators from less-represented jurisdictions or socioeconomic classes, they can actively affect the improvement in diversity.[iv] It should therefore be acknowledged that arbitral institution is not the only force that can bring a difference in this respect. Law firms and lawyers counsel their clients not only on the substance of the dispute but also offer guidelines for the appointment of arbitrators. To encourage diversity, law firms and lawyers have an important role to play and should serve as a hub. With the assistance of emerging technology, numerous law firms have sought to foster diversity within their frameworks. To achieve greater diversity, arbitral associations, and specialized networks for conflict resolution practitioners can contribute.[v] To enable professionals of diverse nationalities and academic backgrounds to
fit into the arbitration market, this can also be achieved by arranging professional gatherings or forums by which they can encourage diversity, especially in terms of geographical region and age.
While gender figures indicate that male “white” arbitrators are still named far more frequently, the pattern seems to be going in the right direction. With multiple projects being implemented at several stages, this is progressing. The “Arbitration Pledge” is one such example, they attempt to ensure the conference organizers follow a more multicultural panel of speakers by the “Pledge”. They always try to persuade more women to be included on the lists of possible selectable arbitrators by governments, arbitration institutions, and national committees. They advocate for greater openness and urge their members to support women in the industry, to tutor and fund them.[vi] At the end of the day, Arbitral institutions, councils, specialist networks, and societies should be active in raising awareness of the lack of participation in international arbitration to promote diversity. Their role should be to foster diversity and raise awareness of the problem and to determine the objective requirements for the appointment of arbitrators.
[i] Turner, C. (2015). “Old, White, and Male”: Increasing Gender Diversity in Arbitration Panels. Retrieved November 24, 2020, from https://www.cpradr.org/news-publications/articles/2015-03-03–old-white-and-male-increasing-gender-diversity-in-arbitration-panels
[ii] Nikolic, Andrea, Lack of Diversity – A Valid Concern in International Arbitration (2019). Available at SSRN: https://ssrn.com/abstract=3674652 or http://dx.doi.org/10.2139/ssrn.3674652
[iv] Caroline dos Santos, “Diversity in international arbitration: A no-woman’s land?” https://www.lalive.law/wp-content/uploads/2018/12/Diversity-in-international-arbitration_dos-Santos.pdf
[v] Nikolic, Andrea, Lack of Diversity – A Valid Concern in International Arbitration (2019). Available at SSRN: https://ssrn.com/abstract=3674652 or http://dx.doi.org/10.2139/ssrn.3674652
[vi] Caroline dos Santos, “Diversity in international arbitration: A no-woman’s land?” https://www.lalive.law/wp-content/uploads/2018/12/Diversity-in-international-arbitration_dos-Santos.pdf