The Equal Representation in Arbitration Pledge (the Pledge), conceived as a call to action to address the historical under-representation of women in international arbitration, is celebrating reaching a milestone 3,000 signatories since its launch in May 2016. This blog post discusses the breakdown of these signatories, marks the Pledge’s progress to date and looks ahead to what more needs to be done.
To recap on the Pledge’s objectives. These are twofold:
- First, it aims to improve the profile and representation of women in international arbitration.
- Second, it seeks the appointment of women as arbitrators on an equal opportunity basis.
The Pledge was formed to address the lack of visibility of many well-qualified female candidates, with arbitrators frequently appointed from a small selection of mostly male arbitrators. This lack of diversity raises questions as to the integrity of the arbitral process, with issues such as unconscious bias and conflicts of interest, as well as procedural inefficiencies, including delays in the rendering of arbitral awards due to the limited availability of arbitrators.
Breakdown of the 3,000 signatories
As at 31 October 2018, 2,419 individuals and 581 organisations have signed the Pledge.
Of the organisations that have signed up to the Pledge, three quarters are international law firms and barristers’ chambers. Just under a quarter are arbitral institutions, including centres with large international caseloads such as the ICC, LCIA, SCC, HKIAC and SIAC, as well as regional centres including the Cairo Regional Centre for International Commercial Arbitration, Comitê Brasileiro de Arbitragem, Comisión Interamericana de Arbitraje Comercial and Lagos Chamber of Arbitration. A list of all the signatories can be found on the Pledge website.
The regional spread of signatories is one of the Pledge’s greatest achievements, with signatories coming from 111 different countries. This broadly reflects the composition of the Pledge Steering Committee, which is comprised of 56 members from 27 jurisdictions, co-chaired by Pledge founder and Freshfields’ partner Sylvia Noury, and Wendy Miles QC. Steering Committee members are tasked with raising awareness of the Pledge in their respective jurisdictions. In this way, local participants in the arbitration community become champions for the Pledge and are able most effectively to push for progress. Latin America has been a particular success story, driven by a sub-committee chaired by Freshfields’ partner Noiana Marigo. The sub-committee has 36 representatives in 20 jurisdictions and has organised or participated in over 20 events in the last two years.
Since its launch in 2016, the Pledge has evolved rapidly from a proposal to effect change to an award-winning global campaign that has put the issue of gender equality firmly on the agenda for the international arbitration community, and opened a wider debate on diversity in the profession.
Many arbitral institutions now publish statistics on the appointment of female arbitrators, which serve as an important measure of progress. Several arbitral institutions have also adopted policies addressing diversity in their arbitrator appointments. For example, in 2017 the SCC published a policy paper on arbitrator appointments, stating that “the SCC seeks to foster diversity in all appointments”. The Board of the Swiss Arbitration Association added gender as a criterion in its arbitrator search tool. The ICC Court has achieved gender parity for the first time with 88 women and 88 men appointed as members for the court’s 2018-2021 term. More anecdotally, all-male tribunals and all-male panels (or “manels”) at arbitration conferences are no longer seen as acceptable.
The available data on appointments of arbitrators indicates that progress is being made. In 2015, prior to the Pledge’s launch, women were estimated to make up approximately 10% of arbitrator appointments (by parties and institutions combined) at the major arbitral institutions. The latest figures for 2017, show that the average number of female appointments has risen to 18%, with the LCIA and ICSID both reporting overall female appointments for the last year at 24%.
In addition to looking at the overall number of female appointments, some institutions also publish the breakdown of how these appointments were made. This reveals that, in large part, the arbitral institutions are appointing female arbitrators more often than the parties or co-arbitrators. The SCC, for example, appointed an impressive 37% of female arbitrators, compared to only 8% by the parties and 0% by the co-arbitrators. The ICSID statistics revealed that the highest proportion of female arbitrators in ICSID cases were appointed by the respondent/state (35%), compared to 30% by the ICSID Secretariat, 8% appointed by co-arbitrators, and only 6% by the claimant investors.
Nevertheless, there have been some notable improvements in party-appointments: while only 4% of arbitrators in LCIA cases were appointed by the parties in 2016, this increased to 17% in 2017 (although this still falls far short of the 34% appointed by the LCIA itself). In ICC cases, of the total number of female arbitrators appointed, 45% were appointed by the ICC itself, 41% by the parties and 13.7% by the co-arbitrators.
While progress has been made, there is more to be done. Active support from all signatories is needed to assist the Pledge Steering Committee in its efforts to raise awareness of the Pledge and to implement its aims. Signatories can look to the Pledge’s Resolutions for 2018 for ideas as to how to effect change, for example using the Pledge’s female arbitrator search tool when preparing lists of arbitrator candidates (see earlier blog), organising conference panels with a fair representation of women speakers and sponsoring or mentoring female colleagues. Acting together, these individual actions can effect tangible change, making the Pledge’s ultimate goal of gender parity a reality.