Gender diversity within arbitration

This year, at the centenary of the Sex Disqualification (Removal) Act 1919, the spotlight rightly falls upon gender diversity within law.  As an industry it’s a time to celebrate how far we've come but it is also an opportunity to consider what more can be done to encourage greater diversity and redouble our efforts.

Without doubt arbitration is one area where there is a great deal of work yet to be done.

According to figures from the International Chamber of Commerce ("ICC"), in 2017 only 249 of 1488 arbitrator appointments were female. That's 16.7%.  This falls in stark contrast against a working age population in this country which is 50.3% women.

Within international arbitration, it has been said that arbitration practitioners, and particularly arbitrators, are generally "pale, male and stale" – in other words, old white men.  One might add to that they are generally perceived as able bodied, straight, privileged and from North America or Europe.

While the need for and benefits of better representation should be uncontroversial in this day and age, identifying effective ways in which greater diversity can be achieved is more complex.  While statistics are essential in identifying the problem, they do not always provide us with a straightforward reason for it.  That is because the reasons are complex; in part historical, cultural and undoubtedly systemic.  This makes finding solutions equally complex.

In the case of arbitration, the reason it is a popular method of resolving disputes is because parties have control over choosing the decision maker.  It has been argued that this control may be the reason diverse candidates are not being selected, as it is not an independent body that makes the appointments and the system has not been regulated in a way to promote diversity.

The fact is that when individuals come to select an arbitrator, broader issues of diversity are rarely a consideration.  The type of change required will not be brought about through tackling this issue on an individual level, however, but at an institutional level.

It has been noted by organisations such as ArbitralWomen, that there is a need for greater gender representation in arbitration. In response the Arbitration Pledge was launched in 2015 and signatories to the Pledge commit to making efforts to further this cause.

The ICC also pledged their support to equal representation in 2016, noting cultural and gender inequalities.  The ICC also committed to publish the names/details of arbitrators appointed by parties in an effort to provide more transparency.  Further, the ICC’s Young Arbitrators Forum (“YAF”) is responsible for the promotion and development of over 10,000 members. With efforts to further the diversity objective, YAF’s panel of representatives now includes 38 women and 34 men, and has the most diverse representatives to date by region and gender.

Beyond these commitments to bring change, there are various options which have been discussed and which could help increase the diversity of actual arbitral appointments.

One option is for the power to make arbitral appointments to be vested in an institution which can be held accountable.  This would, however, remove one of the unique and attractive qualities of arbitration from the parties' point of view, i.e. the control to select their own decision maker.

Blind appointments processes are also an option that some professions are beginning to embrace within their recruitment practices.  There has been talk of this being utilised at the Bar (see the article 'Blind Recruitment' in Counsel Magazine September 2018) although take up does not yet seem to have been widespread.

Within arbitration, it would allow parties to review anonymised CVs including skills, experience and expertise of potential arbitrators.  There is a risk that this will not break the cycle because arbitrators that have already been selected on many occasions will have more experience and could continue to be selected more often for this reason.

It may be that a regulatory body with systems for regulating appointments and which could ensure transparency in the decision making process, rather than an institution responsible for making selections for the parties, is a potential solution.  However, exactly how this would work remains to be resolved.

Although it is important that these discussions are happening and that the ICC itself has confirmed its commitment to progress in diversity, progress seems frustratingly slow.  More targeted work is needed to improve access to this sector of the legal industry and increase appointments of candidates from a diverse talent pool.