Earlier this year, the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings released its first Report in the eighth volume of the International Council for Commercial Arbitration (ICCA) Reports Series (‘Report’).¹ Established in 2019, the Task Force brings together representatives of international arbitration institutions, law firms as well as gender diversity initiatives.²

Besides examining current data on the appointment of female arbitrators, the Report also offers guidance, identifying methods and opportunities for the furtherance of gender diversity in the international arbitration realm. Thus, rather than setting out to condemn current practices, the Report is aimed at providing a roadmap to advance gender inclusivity – an endeavor that is considered necessary to preserve the legitimacy of arbitration and the enhancement of the arbitral process.

According to the Report’s findings, gender diversity is on the rise overall. This is reflected by the fact that the number of female arbitrators appointed to tribunals has doubled over the course of the past four years.³ According to the Task Force, such progress is largely attributable to the sustained efforts of arbitral institutions and organizations, such as ArbitralWomen or Equal Representation in Arbitration Pledge. Yet, with only 21% of appointees being female, the current state of gender inclusiveness is still in dire need of improvement.⁴

The following will draw on the findings outlined in the Task Force’s Report as well as the discussions between panelists of the recent webinar jointly held by the ICCA and the International Centre for Settlement of Investment Disputes (‘ICSID’).⁵ It purports to offer a short overview of the Report’s conclusions, touching upon recent trends, barriers and recommendations provided to promote women in international arbitration.

Current Trends

The Report notes that there have been improvements in terms of the proportion of female arbitrator appointees in the past four years, which has been increasing from an average of 12.2% in 2015 to 16.3% in 2017 and 21.3% in 2019.⁶ Reasons for this positive trajectory, inter alia, include:

• Improved tracking and reporting mechanisms to monitor data;
• Establishment of diversity promoting initiatives, e.g. the Equal Representation in Arbitration Pledge, aiming to ‘improve the profile and representation of women in arbitration [and] appoint women as arbitrators on an equal opportunity basis’⁷;

Its analysis also confirms that, in general, institutions have been the leading force with regard to the appointment of female arbitrators as compared to parties or co-arbitrators:⁸

• By institutions – 34% (2019) compared to 32.5% (2015);
• By co-arbitrators – 21.5% (2019) compared to 9.6% (2015);
• By parties – 13.9% (2019) compared to 8.5% (2015).

These figures show that while the proportion of female co-arbitrator appointees is catching up with the number of women appointed by institutions, the overall quantity remain low.⁹ Similarly, a positive trend can be detected in the number of female arbitrators appointed by parties, yet the rate at which these figures have increased has been slow.

As panelist and former Vice-President of the International Court of Arbitration of the ICC, Mr. Claus von Wobeser suggests,¹⁰ co-arbitrators tend to nominate senior arbitrators with experience acting as chair or who are known to be diligent and efficient in their practice. Thus, repeat appointments can be traced back to reasons of ‘affinity biases’ and aversion to ‘first timers’.

While parties prefer having some degree of control over the appointment of the tribunal chair, it is increasingly common that arbitration clauses agreed by the parties contemplate for the appointment powers to lie with co-arbitrators. Despite the fact that the greatest scope of improvement lies with parties and counsel, co-arbitrators play an essential role in affecting gender diversity in tribunals. Co-arbitrators are therefore urged to include qualified female candidates in their selection lists. Similarly, initiatives such as Arbitration Pledge, are considered useful tools to signal commitment to the process of diversifying the pool of arbitrator appointees.

Obstacles to the Appointment of Female Arbitrators

Drawing on the Report’s findings, barriers to the appointment of female arbitrators can generally be classified as follows:

• Pipeline leaks
  • Retention of women in private legal practice (p43);
  • Unconscious biases, affecting women’s professional development and experience as well as insufficient awareness of professional opportunities to promote reputation and visibility among users of international arbitration (p44);
  • Lack of flexible working arrangements (p47);
  • Sexual and gender-based harassment (p48).

• Plugs
  • Gender diversity given low priority by counsel when recommending arbitrators to clients (p51);
  • Gender stereotyping and reputation (men promoted on potential versus women promoted based on experience),¹¹ narrowing the chance of candidates obtaining first-time appointments (p53);
  • Limited access to information about a broader spectrum of more diverse arbitrator candidates (p54).

The reasons listed as factors contributing to pipeline leaks and plugs, include:¹²

• Devotion to family and caring responsibilities;
• Lack of flexible work options and family life considered to be a ‘female problem’;
• Lack of female role models and mentors;
• Long work hours detrimental to and disproportionately stigmatizing women due to being requested more frequently by female workers;
• Unconscious bias and implicit association of male qualities with assertiveness needed in arbitration;
• Emphasis placed on prior experience, thus narrowing the chances for first time appointment.

Tools and Recommendations

In addition to outlining the shortcomings of current arbitral practice with regard to the appointment of female arbitrators, the Report also offers suggestions for improvement, highlighting the tools as well as methods available to arbitration users in an effort of promoting gender diversity (Part III, section IV).¹³

Recommendations to address diversity

• Identifying and considering qualified female candidates for appointments;
• Sponsoring diversity initiatives;
• Recognizing and addressing unconscious bias;
• Mentoring and training women lawyers, and promote their visibility;
• Ensuring diversity is reflected in institutional panels and rosters;
• Promoting transparency in arbitral appointments;
• Requiring diversity in counsel teams and arbitrator appointments;
• Promoting a positive work culture with flexible working arrangements.

Recommendations for young practitioners

• Investing in relationships with arbitral institutions;
• Seeking out leadership opportunities;
• Being visible and building network;
• Demonstrating the qualities of an arbitrator;
• Actively participating in trainings, conferences, moots and arbitration;
• Identifying mentors and sponsors.

Comment

Gender diversity is a strategic goal within arbitration practice, which must be reinforced with action. While important strides have been made thus far, it is imperative that concrete measures are taken continuously to ensure that the initial positive trends alluded to above can be maintained and built upon. The ICCA Report is hereby instrumental in not only highlighting the importance of greater female inclusion, but also in suggesting opportunities available to e.g. in-house counsel, litigation funders, young arbitrators or qualified female candidates, in addressing the issue of gender diversity in arbitration.

The Report suggests that female legal practitioners need to be provided opportunities to gain meaningful experience and client exposure. In order to do so, law firms as well as co-arbitrations must strive to recruit a team representative of both sexes. Moreover, the Report makes specific reference to the significance of training, in particular, targeting workplace harassment and unconscious bias (Arbitral Women Diversity Toolkit, Alliance for Equal Representation in Arbitrator workshop). While the Report reinforces the importance of visibility, it also suggests refraining from the establishment of women-only networks, leadership training as well as mentoring or coaching programs, as these can be counterproductive and contribute to gender divergences.

Footnotes

1 28.07.2020; ICCA (2020) Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings. The ICCA Reports No. 8. Available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/ICCA-Report-8-Gender-Diversity_0.pdf [accessed 28.11.2020].

2 For more information please refer to: “Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings.” ICCA, 17 Aug. 2020. Available at: www.arbitration-icca.org/cross-institutional-task-force-gender-diversity-arbitral-appointments-and-proceedings [accessed 25.11.2020].

3 ICCA, (n i), p227.

4 “Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings.” ICCA, 28 July 2020, www.arbitration-icca.org/report-cross-institutional-task-force-gender-diversity-arbitral-appointments-and-proceedings [accessed 25.11.2020].

5 International Centre for Settlement of Investment Disputes (2020) 11 Sep. 2020. Available at: https://www.youtube.com/watch?v=mSuskt2FS8I&t=3869s [accessed 23.11.2020].

6 Peart, N.; Ivers, J. (2020) Cross-Institutional Task Force Releases Groundbreaking Report on Gender Diversity in Arbitral Appointments and Proceedings. Kluwer Arbitration Blog. Available at: http://arbitrationblog.kluwerarbitration.com/2020/08/11/cross-institutional-task-force-releases-groundbreaking-report-on-gender-diversity-in-arbitral-appointments-and-proceedings/ [accessed 20.11.2020].

7 “Equal Representation in Arbitration.” Arbitration Pledge, www.arbitrationpledge.com/about-the-pledge [accessed 20.11.2020].

8 International Centre for Settlement of Investment Disputes, (n v); Talib, M. (2020) Gender diversity in arbitral tribunals on the rise, report reveals. Pinsent Masons Out-Law. Available at: https://www.pinsentmasons.com/out-law/news/gender-diversity-in-arbitral-tribunals-on-the-rise-report-revealss [accessed 24.11.2020].

9 Peart, N.; Ivers, J., (n vI).

10 For more detail please refer to the webinar link provided: International Centre for Settlement of Investment Disputes, (n v).

11 Peart, N.; Ivers, J., (n vI); see discussion in Greenwood, L. (2019) Moving Beyond Diversity Toward Inclusion in International Arbitration. Stockholm Y.B. 93, p98.

12 For more detail please refer to the webinar link provided: International Centre for Settlement of Investment Disputes, (n v).

13 For more detail please refer to the webinar link provided: International Centre for Settlement of Investment Disputes, (n v).

Originally Published by OBLIN Attorneys at Law LLP, January 2021

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