Gender Diversity by Ms. Vanina Sucharitkul
Diversity in international arbitration is one of the significant issues of development in the past few years. Among the various components of diversity in arbitration, gender diversity attracts considerable attention. THAC was honored by Ms. Vanina Sucharitkul (THAC’s Arbitration) for the interview regarding “Gender Diversity”.
In recent years, gender diversity has become a hot topic. How is the situation in the field of arbitration? Do you think there is a lack of gender diversity in the field of arbitration?
At the 2014 International Conference for Commercial Arbitration (ICCA) Miami Conference attendees gathered to ask “Who are the arbitrators?”. The answer they were told was “male, pale, and stale”. In other words, arbitrators are predominantly senior white men. I believe that the numbers speak for themselves. In the United States about 50% of students are female. In the United Kingdom 65% of legal trainees are women. In Thailand, at Thammasat University, the latest figures show 1,878 male law students whereas females amount to 3,190. Yet, it is sobering to witness that the number of women who make it to partnership drop to about 20% in international law firms. The number of women partners amongst international arbitration partners is only about 10%. Even worse, the number of females appointed as arbitrators in 2016 reported globally was estimated at 6%. So, the answer is certainly: yes, there is a lack of gender diversity in arbitration. As some practitioners suggest however, diversity is the “last thing on anyone’s mind” when it comes to selecting arbitrators.
That being said, the situation is improving over the last 5 years, with a number of measures targeted toward gender diversity. Most notably is the Equal Representation in Arbitration (ERA) Pledge in 2015 to increase, on an equal opportunity basis, the number of women appointed as arbitrators and to achieve a fair representation with the ultimate goal of full parity. There are now over 4,200 signatories including institutions, law firms, barristers’ chambers, corporations, and individuals.
More women ask about taking an important role in the area of arbitration. Do you think the presence of women needs to be improved?
The number of women at the senior level and the number of women appointed as arbitrators need to be improved. There are two main reasons attributed to why women leave the profession: (1) the pipeline leak and (2) unconscious bias.
The “pipeline leak” is the phenomenon in which women are seen to leave the legal profession at a disproportionate rate when compared to men. This is observable since the number of associates, especially at the entry level, are more evenly split among men and women. However, when we get to the top, the number of women start to dwindle. This is often attributed to the lack of work-life balance, the absence of flexible work schedules, coupled with gender stereotypes within the social structures which still consider women as primary caregivers. This ultimately triggers the further attrition of female lawyers at law firms.
An additional problem is of “implicit” or “unconscious” bias, which causes people to possess social stereotypes towards certain groups of people – women in this case – outside of their conscious awareness. For example, according to some studies, women in senior leadership roles who performed the same action as men would be described as “aggressive” or “bossy” while male counterparts would be described as “assertive” and possessing “leadeshipr” skills. Similarly, women would be judged more harshly for a mistake whereas men would be judged by their potential. But this is not the case only in international arbitration. For instance, if you look at Fortune 500 companies, the number of female CEOs is only 37 or 7.5% of the total number. So, the number of women in leadership positions is not representative of the female population across the board and this applies outside the arbitration field.
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Regardless of the new trend of improving the presence of women in the law field, and in particular, in arbitration, why do you think the law today is still predominantly ruled by men?
I don’t think the law is ruled by men per se, and would not say so myself.I would say that there is a lack of diversity in the legal profession at least when it comes to the field of arbitration where there is still an under-representation of women. When women get to a certain level, they may not be accepted by their peers and welcomed to what is called the “invisible college” of men. A Global Arbitration Review survey conducted by ArbitralWomen found that almost half of the members experienced “unwitting bias” during International arbitration cases.
For example, women acting as counsel reported being referred to by their first name, while their male counterparts were called “Mr.” followed by their last name. One female counsel reported be mistaken for the secretary when she was the lead counsel. In one study, seven women mentioned feeling a “lack of credibility, that they had to prove themselves”, with one stating that comments to her about welcoming the “lovely lady” causing her to sense “a slight presumption of incompetence.” Thus, not only the presence of women needs to improve, but also the perception that the arbitral community has toward women.
Today, arbitral institutions are more receptive to accepting women in their arbitrator’s panels, however, the number of women who are appointed as an arbitrator is still comparatively lower than men. What methods do you suggest to promote the appointment of women to balance the situation?
One way is to commit to appoint men and women on an equal basis onto panels. It is insufficient to nominate women to institutional panels alone, if they are not subsequently appointed as arbitrator. The THAC is taking positive steps by raising awareness about gender diversity, by hosting an ArbitralWomen panel on gender parity during ADR week. To improve female arbitral appointments, representation must improve across the board, including in seminar panels, committees, and leadership roles. This is important to showcase female talent so that the arbitration community and especially those who have the capacity to nominate arbitrators are made aware of qualified women who are accepting appointments.
Most surveys show that institutions are making efforts to appoint more women. For example, in 2015 the percentage women appointed by the International Chamber of Commerce (ICC) was 10.4% but in 2019 it grew to 21.1% and this is an improvement across the board. Similarly, the list of Members of the ICC Court in its 2018-2021 term reflects full gender parity with 97 female and 96 male appointees. The London Court of International Arbitration also makes sure the number of female and male Vice-Presidents of the Court are equal.
The Hong Kong International Arbitration Centre allows you to search by gender if you want to look at women who are empaneled. Statistics published by institutions is an efficient way of being accountable to the arbitration community. It also allows to show that the institution takes diversity seriously and to point out any increase in the number of women’s appointment. It is through these published statistics that we now know that female appointments by arbitral institutions have increased.
I do not think that the onus should be on institutions alone. It must be shared by all members of the arbitration community. Parties and counsel could for instance take the initiative to shortlist qualified female arbitrators through the ArbitralWomen website, which contains a searchable database of women with their CV, and allows users to search by categories including jurisdiction, geography, and language. Law firms could also be committed by ensuring to include qualified female names on the list as was the case in the last law firm where I practiced.
The reason a diverse panel is crucial for better quality of awards is that diversity promotes better decision-making. As Benjamin Franklin said, “if everyone is thinking alike, then no one is thinking.” The benefits of diversity are also proved by a 2009 study conducted by McKenzie & Company, which reviewed 101 companies that publish the composition of their governing bodies and found that the more women in Senior Management functions, the higher each organization scored across criterion such as motivation, leadership and work environment. On the other hand, companies without women scored lower. In other words, companies with diversity overall perform better. Similarly, diversity is beneficial to the arbitral process and the arbitral decision-making.
Talking about the situation in Thailand, which is a relatively new player in arbitration, do you think women’s interest in arbitration is growing? In the current Thai arbitration market, are they playing an integral role?
I think they are playing a central role because there is a high attendance of women at conferences and events organized for young groups. So, they are definitely interested, and statistics show that law students show that there are now more female law students than men. The number of female Junior Associates is also quite high. The number starts to drop in dispute resolution when it reaches Partner level. From statistics of three large law Thai firms and major international firms in Thailand that have a dispute resolution practice, it appears that while approximately 1 out of every 3 partners was female across practice areas; that ratio dropped to 1 out of every 14 Partners when it comes to dispute resolution.
When institutions like THAC are appointing arbitrators, one solution is to use the 5 minutes rule. According to this, if you cannot think of a woman right off the bat because the male names first come to mind, wait an extra 5 minutes and try to think of a qualified woman. I have looked at the statistics of the THAC when it comes to the number of female arbitrators on the panel and I believe that there’s more work to be done on this front.
One area of improvement is THAC small claims cases where a woman may not have had prior appointment but has the requisite counsel experience for her first appointment. This is a good place to bring diversity in because a very senior male arbitrator may not have the time to actually spend on such small-value cases. We can also give the younger generation experience with small claims cases and in doing so, build the next generation of arbitrators. This is what most institutions are doing. They are appointing younger arbitrators because diversity is not just limited to gender, and there are also issues with generational diversity, which compels the need to build a new generation of arbitrators.