The Lack of Diversity in International Arbitration

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Significant emphasis has been paid to the diversity of arbitration. In fact, on the issue of gender equity, members of the international arbitration community signed the arbitration pledge in 2015, acknowledging women’s presence in arbitration courts. This is because arbitral tribunals are typically male-dominated as the same arbitrator is often re-elected. Only 11.7 % of the LCIA’s arbitrators in 2014 were women[1]. The lack of gender diversity in the legal community is not limited to arbitration but also the legal community in general.

Berwin Leighton Paisner completed a survey on diversity in international arbitration in 2017 titled “Diversity in International Arbitration: Are We There Yet?”. Respondents have included arbitrators, company consultants, attorneys, consumers of arbitration services, and employees of arbitration centers. The survey respondents were from all over the world, including Asia, Australasia, the Middle East, and North Africa, North America, Latin America, and the Caribbean.

Western and Eastern Europe East and West Africa, BVI / Cayman and Bermuda [2]

Surprisingly, only 12% of respondents believe gender is a “very relevant” or “significant” aspect to consider. The percentage was marginally higher for ethnicity / national identity, with 26% of respondents prioritizing this ethnic category. On the other hand, 68 % of respondents believe that gender is “insignificant” or “not important at all ” [3].

Ethnic Diversification

There are little data on ethnic diversity in arbitration courts. However, some evidence shows that the majority of males (and a limited percentage of women) are older Caucasians. Additionally, between

January 1972 and May 2015, there were 289 cases in which appointed arbitrators are chosen in ICSID arbitrations; the tribunals were composed of all Anglo-European arbitrators in nearly half of the cases (45%). The tribunal consisted of two or more Anglo–European members, or the single arbitrator was Anglo–European in 84 % of the cases. Just 11 cases (4%) were arbitrated by tribunals that were entirely non-Anglo-European [4].

55 % and 57 % of respondents who practice in Asia and the Middle East answered that selected arbitrators should come from a broader range of racial and national origins than those who prioritized gender balance in courts, opposed to 48% and 42% for respondents from other regional regions [5].

Gender Diversification

According to respondents, (a) the court should have a gender representation, and (b) its members should come from various racial and national backgrounds. In terms of gender, just 6% of respondents said “no,” indicating that gender balance is unacceptable. The remaining answers were distributed evenly as 50 % stated that they desire gender parity in the arbitral tribunal while 41% said: “no difference” [6].

The 2015 SIAC statistics reported that the number of women appointed as arbitrators accounted for only a quarter of the ICC’s statistical data in 2015, which indicated that only 10% of women were appointed. More women were appointed as joint arbitrators (43%) than just one arbitrator (32%) or chairperson of the arbitral tribunal (25%).

ICC data on arbitration appointments in 2016 showed that as of November 2016, only 20% of arbitrators appointed were women.

The LCIA statistics in 2015 (compared to 2014) saw an increase in the number of female applicants (6.9% compared to 4.4% in 2014) and were selected by the LCIA (28.2% compared to 19.8% in 2014). According to SCC figures, 14% of arbitrators nominated in 2015 were female, but the figure decreased to 6.5 % once considered only the one appointed by the parties[LG1].

Statistics from the Chartered Institute of Arbitrators showed that out of the 222 arbitrators who are eligible to serve on the presidential nomination panel, only 16 (7%) are women [7].

Considering Diversity in Future Arbitration Proceeding

56% of respondents said they took diversity into account when considering potential arbitration appointments, while 26% said they did not believe it was related, and 17% said they did not think about it. 47% of respondents said they were more likely to consider diversity in the future than they used to, but 36% said they would not.

References;

· https://www.ashurst.com/en/news-and-insights/insights/the-arbitration-pledge-does-it-go-far-enough-180411/
· http://arbitrationblog.kluwerarbitration.com/2020/03/01/is-increasing-gender-and-ethnic-diversity-in-arbitral-tribunals-a-valid-concern/
· http://arbitrationblog.kluwerarbitration.com/2017/02/09/diversity-in-international-arbitration-where-do-we-stand-an-overview-of-a-berwin-leighton-paisner-survey/
· https://www.bclplaw.com/en-US/insights/diversity-on-arbitral-tribunals-are-we-getting-there.html
· https://www.bclplaw.com/en-US/insights/diversity-on-arbitral-tribunals-are-we-getting-there.html
· [1] LCIA Registrar’s Report 2014 P.3
· [2] International Arbitration Survey P.5
· [3] International Arbitration Survey P.8
· [4] International Arbitration Survey P.2
· [5] International Arbitration Survey P.9
· [6] International Arbitration Survey P.8
· [7] International Arbitration Survey P.2
· [1] This article is based on the 2017 survey “Diversity in International Arbitration: Are We Getting There?” Conducted by Berwin Leighton Paisner. For those who interest, please see the original at https://www.bclplaw.com/images/content/1/5/v2/150194/FINAL-Arbitration-Survey-Report.pdf

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The Lack of Diversity in International Arbitration