REUTERS | Fabrizio Bensch

Harnessing the “new normal” to improve diversity in international arbitration

Since governments started imposing lockdowns and stay-at-home orders in countries around the world, remote working has become the “new normal”. Boardrooms, power suits and (thankfully) the commute to work are a thing of the past; we’re now in the era of the business-casual and “virtually” brilliant. Could this shift in mindset be used as a springboard to bring much-needed diversity to international arbitration?

Many of us have had hundreds of Zoom, WebEx, and Teams calls with clients, colleagues, family and friends. And while confined to our homes, away from our offices and places of business, we’ve been debating what the new normal will look like. When is it appropriate to return to the office? When the time comes, is it going to be safe or will we be placing ourselves and our families at unnecessary risk? And most importantly, when will we be able to fly around the globe with the same nonchalance with which we now join virtual meetings in our pyjama bottoms?

Like all parts of the economy, the arbitration community has had to adapt to accommodate a degree of business as close to normal as possible. With travel bans still in place and no indication as to when countries will open their borders (or when it will be safe to travel), tribunals and parties have shifted in-person hearings to virtual hearings.

The use of virtual hearings is not new in international arbitration. Much of the procedural business of an international arbitration is routinely dealt with through various virtual platforms. It is also fairly common for a witness or an expert to give evidence remotely. What is (or was) less common is for all participants, including the tribunal, to appear virtually.

Despite the inevitable technical challenges, the arbitration community has adapted quickly and initial opinion has been overwhelmingly positive. New virtual hearing practices (and the cost savings they bring) may present a window into the future: many predict that virtual hearings will continue long after the COVID-19 pandemic is over, thus creating a new normal in international arbitration.

This raises an interesting question: if the arbitration community can embrace a shift to virtual hearings, could we capitalise on this change in mindset to embrace wider changes in how we conduct international arbitration?

The pandemic has brought about a change in almost every aspect of our lives. I’d suggest that it has also changed us as people. The devastation of the coronavirus, combined with the stress of having to deal with a complete overhaul of our daily routines, has triggered in many of us the desire to connect to a broader collective conscience or to pursue something with meaning.

The current global mood, coupled with the changes that we have adopted during the pandemic to how we work and conduct arbitrations, are the perfect springboard for us to build a more inclusive and equal arbitration community.

The shift to virtual hearings and the resulting elimination of unrelenting travel schedules should help to create a more flexible environment for women (and men) with young families, thus helping to improve the representation of women and younger practitioners in arbitration. Likewise, the shift to technology-enabled remote working should hopefully facilitate retention of women (often shouldered with a disproportionate share of family duties) and other minorities for whom physical attendance may be a challenge. These changes in how we work represent opportunities for firms to accelerate building inclusive and agile cultures where office face time is no longer required.

Networking and speaking opportunities have also moved online. Everyone can now attend or speak at an event or conference, and not just women with families but also younger practitioners, practitioners with disabilities, and practitioners from all over the globe who, perhaps because of distance from popular conference centres or the cost of travel, may have been left at the margins of the arbitration community. Improving access is providing more opportunities for others to be seen.

The statistics published by the arbitral institutions show that, to date, it has been the arbitral institutions who have taken the lead in promoting diversity in arbitral appointments. The results of our 2017 annual arbitration survey, Diversity on Arbitral Tribunals: Are we getting there?, showed recognition that we all have a part to play in improving diversity of representation.

The arbitration community has shown that it can embrace change and do things differently when necessary. If we can shift to virtual hearings and remote working in a matter of days, what else could we achieve if we really put our minds to it?

We are also newly invigorated with a desire to make meaningful changes to the world in which we live. It would be great if we could harness that mindset to create a positive change for the future. Once and for all, let’s take action and leave the pale, male and stale aspect of international arbitration in the pre-COVID-19 world.

Leave a Reply

Your email address will not be published. Required fields are marked *

Share this post on: