This month, a new arbitrator search tool has been introduced via the Equal Representation in Arbitration (ERA) Pledge website to help arbitration practitioners and parties identify qualified female arbitrators to hear their cases.
As recorded previously in an earlier blog, the ERA Pledge constitutes a list of commitments designed to improve the profile of women in arbitration with a view to securing the appointment of more women on arbitral tribunals on an equal opportunity basis.
It was launched to wide acclaim in May 2016, spearheaded by a Steering Committee formed of senior arbitration users from around the world, who are dedicated to promoting the values and practices that the Pledge enshrines in its members’ respective jurisdictions. To date, the Pledge has over 1,300 signatories, including individual practitioners, law firms, barristers’ chambers, multinational corporations, arbitral institutions, academics and arbitrators. The geographical spread of the Pledge is testament to its success, with new Steering Committee members recently joining from previously unrepresented jurisdictions in Africa and Latin America.
As the lack of visibility of female arbitrators is often cited as a reason for the low number of women on arbitral tribunals, the Steering Committee considered ways to facilitate sharing information about qualified female candidates. The result is a new service to assist arbitration users in their search. The arbitrator search link, on the Pledge website, invites users to submit, on a confidential basis, key information about the dispute for which they require an arbitrator (for example, relevant industry, governing law, language of arbitration and so on). This information is then reviewed by a Search Committee of individuals from arbitral institutions (who also sit on the Steering Committee but act independently of it), who will consult one another to identify, where possible, at least one suitably qualified female arbitrator. The Search Committee stresses that any proposals it makes are only to provide ideas of potential profiles; they do not constitute official recommendations.
It is hoped that this service will assist counsel and parties to comply with the following two commitments of the Pledge, both fundamental to improving gender diversity on arbitral tribunals:
- Lists of potential arbitrators or tribunal chairs provided to or considered by parties, in-house counsel or otherwise are to include a fair representation of female candidates.
- Where they have the power to do so, counsel, arbitrators, representatives of corporates, states and arbitral institutions are to appoint a fair representation of female arbitrators.
The available 2015 statistics show that the proportion of female arbitrators is generally higher when the appointment is made by the arbitral institution rather than the parties themselves or by the co-arbitrators. For example, 28.2% of the appointees selected by the London Court of International Arbitration (LCIA) Court were women, compared to 6.9% of those nominated by the parties and 4% nominated by the co-arbitrators. Most starkly, 47% of arbitrators appointed by the Swiss Chamber of Commerce were women, compared to only 5% appointed by the parties.
One reason for this difference is thought to be the availability of information about qualified female arbitrators at the disposal of the institutions, compared to parties and counsel. Arbitral institutions systematically record information about arbitrators as they are regularly required to make appointments on behalf of parties, and often at short notice. In commercial cases, the institutions are also privy to knowledge about the identity and performance of many more arbitrators sitting in their cases than is made available publicly.
Certain arbitral institutions have recently demonstrated their commitment to gender diversity and to the Pledge by disclosing statistics, for the first time, on the number of women on arbitral tribunals constituted under their auspices. Both the International Chamber of Commerce (ICC) and the Swiss Chamber of Commerce included data on female arbitrators for the first time in their statistics for 2015. These were released in May and August 2016 respectively. Some have also started disclosing information about arbitrators sitting in their cases. Earlier this year, both the ICC and the Milan Chamber of Commerce started publishing the names of arbitrators hearing their cases on their websites. The Board of the Swiss Arbitration Association (ASA) has decided to include “gender” as a criteria on the search tools of its website and app, along with an explanation of the reasons for including this new criteria.
Other initiatives include: a search facility on the ArbitralWomen website; a tool to be introduced by Global Arbitration Review that will provide information about arbitrators to arbitration users; and the Arbitrator Intelligence project, which when fully developed will aim to provide users with a searchable resource to aid with arbitrator selection.
It is hoped that the disclosure of statistics and arbitrator information by arbitral organisations will further promote transparency and the objectives of the Pledge, encouraging diversity in the international arbitration sphere.