Will the pipeline leak be mended in 2017?

It is probably fair to say that the majority of practising international arbitrators came through the ranks as practising lawyers. The lack of gender balance on international arbitration tribunals is often attributed to the “pipeline leak”, that there are insufficient numbers of women at the top end of the legal profession. This should not be so: In 2015-16, of the UK students accepted to study law at undergraduate level in England and Wales, 67.3% were female. Of those who qualified as solicitors on 31 July 2015, 61% were female. But by the time they reach partner level, the figure has dropped to less than 20%. There is a large measure of consensus as to the reasons why that is the case: office climate, difficulties managing dual careers, lack of female role models or mentors, lack of flexible work options and attitudes to flexible working. At the international arbitrator level, where the appointees are principally those who have reached the top of their profession, numbers become even smaller. Here women face difficulties in getting to the initial stage at which they may be considered for an arbitral appointment.

Others have identified gender diversity as one of three international arbitration trends to watch in 2017 (the other two being transparency and arbitrator ethics). 2016 has been identified as the year that gender diversity became the main focus throughout the international arbitration community.

As recorded in an earlier blog in May 2016, the Equal Representation in Arbitration (ERA) Pledge (ERA Pledge), which aims to ensure that women with equivalent capabilities are not passed over, officially launched in London. The ERA Pledge website counts 1,609 signatories as at 19 December 2016, including many of the world’s largest law firms and arbitral institutions, and are to be congratulated for the increased awareness that they have brought to the diversity debate that the vast majority of international arbitrators are still “male, pale and stale”.

In June 2016, I met a couple of pale, male arbitrators at the second International Chamber of Commerce (ICC) Asia conference held in Hong Kong. They noted I was to be a panellist the next day on a joint event between the ICC and ArbitralWomen on Unconscious Bias in International Arbitration. One complained that he was increasingly finding himself the only male in the tribunals on which he sat, and the other that, “we do not need to do anything more than we are doing, fair representation is happening or will come in time”. Both were clearly of the view that nothing more needs to be done about gender diversity. However, what figures there are so far do not bear this out, and there is an increasing recognition that the pace of change is unacceptable.

The excellent article by Lucy Greenwood and C. Mark Baker, entitled Is the balance getting better? An update on the issue of gender diversity in international arbitration, is to be commended. The problems with addressing the lack of diversity in international arbitration have always been the lack of transparency in relation to the manner in which arbitrators are appointed and the difficulty in identifying where, if anywhere, responsibility for addressing the issue lies. The article cogently argues that responsibility falls to the arbitral institutions to track and provide information about the gender of the arbitrators in party and administered arbitrations. It must be unarguable that institutions have a responsibility to record diversity information in relation to the arbitrators appointed in cases which they administer. After all, only the institutions have the tools to capture this information. They have a responsibility not only to do so, but to make the information publicly available, so that this information can be monitored. However, without such information, it is impossible to address this pressing issue. In 2015, when the article was written, it was spot on and it remains the case now.

In 2016, some arbitral institutions became more transparent on gender statistics, but they remain in the minority. The ICC was one of the first major institutions to disclose publicly that women made up only 10% of all appointments and confirmations in 2015, and that the figure had increased to 20% up to September 2016. The London Court of International Arbitration’s (LCIA’s) statistics are more encouraging. As reported in 2016, women made up 16% of all appointments in 2015, the institute itself having selected 28.2% (compared to 6.9% put forward by the parties). The Stockholm Chamber of Commerce (SCC) reports that in 2015, 13% of arbitrators appointed were women. Statistics from the Chartered Institute of Arbitrators (CIArb) indicate that only 7% of the 222 arbitrators on their panel (my experience is that you have to reach Chartered Arbitrator level to get on the panel) from which presidential appointments are made, are women. There is room for improvement.

At the time of writing this blog in 2017, I still have trouble finding figures from some of the other major institutions. For the joint ICC ArbitralWomen event on Unconscious Bias, I researched arbitration institutions based in the Asia region on the proportion of women arbitrators on their panels and the percentage of arbitrator appointments that were women. After all, arbitration centres in Asia are growing in importance, as it is generally accepted that there is an emerging shift of increasing numbers of international arbitrations from established arbitration centres in Europe to Asia. Except for one (the Singapore International Arbitration Centre (SIAC)), all the arbitration institutions in Asia that I contacted did not even maintain statistics on gender. Consequently, figures provided were only given on an informal basis The proportion of female arbitrators on their panels ranged from 3.8% (Japan Commercial Arbitration Association (JCAA)) to less than one third (China International Economic and Trade Arbitration Commission (CIETAC)) and the figures for arbitrators appointed who were female ranged from 2% (JCAA) to nearly a quarter (SIAC). The only institution that maintained and reported statistics on their appointment of women also happens to be the institution with the highest percentage of women appointed.

It is accepted that ultimate responsibility for meaningful change lies with those making the appointments, namely the lawyers and their clients. They must acknowledge the value of diversity in its own right and as an important factor influencing the quality of the decision making process by others. But the arbitral institutions can blaze a trail and set the example. Unfortunately, in 2016, there continued to be simply not enough information from the arbitration institutions, and greater transparency is essential to identify and take steps to fix the leaking pipe as we launch into 2017.

St Philips Stone Chambers Mary Thomson

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