Last week saw the launch of a new gender diversity initiative: the Equal Representation in Arbitration Pledge. The campaign for gender diversity in arbitration is not a new one. But it is hoped that the Pledge will create renewed impetus for change by rallying the arbitration community and mainstreaming the issue.
The problem
Women make up 20% of the partners in the dispute resolution departments of law firms globally. They also make up 20% of High Court and Court of Appeal judges in the UK, and more in other countries like the US and the Netherlands, where the figures are over 30% and 40% respectively.
Statistics of sitting arbitrators are harder to come by. But those that we have from the arbitral institutions tell us that women still make up on average around 10% of arbitrators. Furthermore, the statistics are worse when the arbitrators are selected by the parties rather than the institutions.
The problem is that, unlike the bench, there is no regulator in charge of appointments. It is up to the arbitration community – counsel, the parties, arbitrators and the institutions – to police the system and ensure it works properly and fairly.
In reality, the process for appointing arbitrators can be far from transparent with recommendations often being made based on prior experience of the arbitrator and their stature. This leads to a vicious circle whereby the same “usual suspects” are appointed, sometimes because they are seen as a safe or reliable choice, or in line with the perception (usually without basis) of what clients expect. The downsides of appointing the same individuals are well known: lack of availability, lack of preparation, delays in awards, entrenched views and lack of legitimacy are often cited.
There is no question that a pool of very qualified women exists to provide the additional resources required to meet those concerns. As Sylvia Noury neatly set out in her speech at the Pledge launch event:
“Merits and diversity are not in competition. The objective is equal opportunity for equally qualified women. This will benefit the entire community, not just us ladies. Until we draw on the pool of quality that exists among our top women, we are in fact diluting the excellence of our arbitral system.”
A call to action: the Pledge
The Pledge is a call to action for the arbitration community. It has a simple objective: to improve the profile of women in arbitration with a view to securing the appointment of more women as arbitrators, on an equal opportunity basis.
It seeks to establish concrete and actionable steps that the arbitration community can and must take towards achieving a fairer representation of women on tribunals. The Pledge calls upon all users of the arbitration system to ensure that:
- Committees, governing bodies and conference panels in the field of arbitration include a fair representation of women.
- Lists of potential arbitrators or tribunal chairs provided to, or considered by, parties, counsel, in-house counsel or otherwise include a fair representation of female candidates.
- States, arbitral institutions and national committees include a fair representation of female candidates on rosters and lists of potential arbitrator appointees, where maintained by them.
- Where they have the power to do so, counsel, arbitrators, representatives of corporates, states and arbitral institutions appoint a fair representation of female arbitrators.
- Gender statistics for appointments (split by party and other appointment) are collated and made publicly available.
- Senior and experienced arbitration practitioners support, mentor/sponsor and encourage women to pursue arbitrator appointments and otherwise enhance their profiles and practice.
As explained in the commentary to the Pledge, the text is the result of a collaborative effort between global representatives of corporate entities, states, arbitral institutions, arbitration practitioners – both counsel and arbitrators – and academics, drawn together by a Steering Committee, co-chaired by Sylvia Noury and Wendy Miles QC. An initial consultation dinner was held in London, followed by similar events in New York, Berlin, Hong Kong, Dubai, Singapore, Paris, Geneva, Rome, Vienna and Amsterdam.
Launch event and signatories to date
The Pledge was officially launched at a cocktail reception on Wednesday 18 May 2016. Over 200 people attended the event. Sylvia Noury, partner at Freshfields Bruckhaus Deringer, and Jackie van Haersolte-van Hof, Director General of the LCIA, both said some inspirational words to introduce the Pledge.
Prior to the launch, over 300 individuals and 30 organisations had already signed the Pledge, including ArbitralWomen, ICC International Court of Arbitration, SCC Arbitration Institute, ICDR, WIPO Centre of Arbitration and the German Arbitration Institution (DIS), the Hong Kong Bar Association and several corporates including BP plc, ConocoPhillips Company and General Electric.
Since the launch many more individuals and organisations have signed the Pledge, including Thomson Reuters Legal UKI. If you would like to sign the Pledge, you can do so via the ERA Pledge website.
Next steps: implementation
While gaining as much support for the Pledge is the first step, the more important goal is to ensure that the Pledge leads to concrete action and real change. A large part of the problem is a lack of knowledge and awareness of qualified women arbitrators. One of the steps Freshfields has taken to address this is to compile and maintain an internal database of women arbitrators that can be consulted when lists of potential candidates are being drawn up for clients. Having such information to hand has already led to several excellent women candidates being proposed and chosen by clients who may otherwise have been missed.
