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Posted August 13, 2020 | Published in General

Lessons in gender diversity: What can Adjudicator Nominating Bodies learn from arbitration?

The International Council for Commercial Arbitration (the “ICCA”) recently published its snappily titled “Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings” (the “ICCA Report”). I would recommend that anyone interested in the subject matter of this blog should read the ICCA Report. 

In recent years, there has been a concerted effort by the international arbitral community to both encourage more female arbitrators to put themselves forward in the first place and then to get them appointed. The ICCA Report contains an in-depth analysis of the statistics on gender diversity in international arbitration, showing the extent to which it has improved in recent years and how that progress has been achieved, as well as documenting how obstacles to further improvements could be overcome.  Finally, for anyone asking “so what?”, it also provides an in-depth look at why gender diversity is good for business, the law and indeed how justice is perceived generally.

So what improvements have been made in international arbitration?

The good news is that the statistics show gender diversity in arbitral appointments is slowly improving. For example, in 2012 research quoted in the ICCA Report, which was based on 252 arbitration awards dated prior to January 2012, found that only 3.6% of 247 individual arbitrators were women and that 81.7% of the tribunals were all-male panels.  However, between 2015 and 2019 around one third (29.2 to 34%) of all appointments by arbitral institutions were women. This is obviously an important improvement.  Party appointments lagged behind this but nevertheless the proportion seems to have increased from 8.7% in 2015 to 13.6% in 2019.  

What has driven the improvement in gender diversity in arbitral appointments?

The ICCA Report flags the key role that arbitral institutions play in improving the appointment of women to arbitral tribunals.  For example, the ICC now expressly encourages its committees and groups to favour gender diversity in their proposals for prospective arbitrators.  They also note the list of members of the ICC whose Court’s 2018 to 2021 term reflects full gender parity including 97 female arbitration practitioners.  The list of members of the LCIA Court reflects gender parity among its vice presidents. 

There is also a trend for identifying those bodies whose appointments are behind the curve.  For example, the ICCA Report notes that submissions were made to Canada and the EU regarding the under-representation of women on the list of arbitrations for trade dispute settlement rosters under Article 29 of CETA, which included no women among the proposed chairpersons and only one woman among five EU panellists. 

Suggestions for encouraging further improvement by those making arbitral appointments

The ICCA Report also notes that action can be taken by those who nominate or appoint arbitrators.  Suggested actions include:

1   Committing to do more – the arbitral community now has a number of pledges which those who nominate or appoint arbitrators on a regular basis have the option of signing up to aimed at encouraging gender diversity.

2   Actively finding and considering qualified female candidates – this involves taking longer to search for other, more diverse candidates rather than using the same old candidates again and again. Various databases have now been created (for example by ArbitralWomen) with the purpose of making this task easier.

3.  Addressing unconscious bias as to what people are looking for in their arbitrators. This may involve training and opening people’s eyes to why more diverse candidates should be considered; 

4.  Reflect greater diversity in the institutional panels and rosters – as highlighted above, some progress has been made in relation to this.  

5.  Championing women – the ICCA Report notes that women are under-represented in the legal directories and suggests that action is required by both researchers and those who employ women to end this. 

6.  Promoting transparency – statistics are noted as playing a key role in measuring progress and allowing those who aren’t pulling their weight to be called to account. 

" In recent years, there has been a concerted effort by the international arbitral community to both encourage more female arbitrators to put themselves forward in the first place and then to get them appointed. "

So what can the ANBs learn from this?

The ICCA Report got me thinking about the extent to which lessons learned by arbitral institutions could be used by Adjudicator Nominating Bodies (“ANBs”) who need to try and improve their gender diversity. I say this because it seems to have improved very little, if at all, in recent years. For example, and rather shockingly in my view, the ICE had no female adjudicators on its panel at all in 2016 and it still doesn’t today. Surely that cannot be acceptable in this day and age? 

I cannot recall the last time an ANB nominated a female adjudicator for one of my adjudications. This perhaps is not surprising given that even other ANBs that publish their lists have limited numbers of women on their panel. I counted 5 women on TeCSA’s panel of 66 and a slightly more respectable 13 on TeCBAR’s panel of 83. RIBA confirmed that they have 8 women on their panel out of a total of 63 panellists.

The key lessons that seem to jump out at me from the ICCA Report that could be transferred across by the ANBs are as follows:

1.   ANBs need to drive diversity in adjudication – that appears to be what is happening in arbitration. Improved diversity has been driven by arbitral institutions. 

2.   More female candidates need to be actively sought out and encouraged to put their names forward – too often I hear the old excuse that the panels are too full or the existing panels do not get enough appointments in the first place. That is not good enough, especially in the current circumstances when the number of adjudications appears to be increasing significantly. That increase provides the ideal opportunity for the ANBs to increase their panels drawing from as diverse a talent pool as possible.

3.   Transparency needs to be encouraged – some ANBs do not openly publish their lists.  The result is that no one knows or can question that body about how diverse their lists are. Those inserting the ANB’s name when they enter into the contract may have no idea that the pool of talent they are signing up to is distinctly non-diverse (not just in terms of their gender or race but also in relation to their professional qualifications, race etc.). 

4.   Distinct pathways for getting onto the ANBs need to be set up – candidates may be excellent but blocked because they do not have the experience of those who were on the ANB lists when adjudication first started. However, they can’t get this experience if they are never given the opportunity in the first place; Catch 22! 

Conclusion

The ICCA Report is a fascinating snapshot into how concerted action on gender diversity in international arbitration is gradually bearing fruit. I highly recommend reading it. In my view such concerted action now needs to be seen in the field of adjudication. 

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