REUTERS | Hannah McKay

Diversity checklist for international arbitration (Part Three)

This three-part blog provides a diversity checklist to help retain and promote young and diverse talent in international arbitration.  Part one provides an introduction to the state of diversity in international arbitration, and how checklists can help achieve excellence.  Part two discusses the rationale for a ten- point diversity checklist in arbitration.  This part three sets out the checklist itself, as well as two associated questionnaires for use at the start and end of arbitration proceedings to allow the tribunal to learn about diverse and young counsel members’ experience of the proceedings from a diversity and inclusion perspective.

Diversity checklist for use during international arbitration proceedings

1. The tribunal to invite counsel and parties to present diverse client and counsel teams, and to run a survey to canvass diverse characteristics of the team (see “Start of proceedings: diversity questionnaire” below for a model). □

2. Tribunal to send draft procedural timetable for the arbitration for comment, and specifically ask if the timetable works for client and counsel team members, and tribunal Secretary, with young families or other significant care responsibilities. □

3. The tribunal to check in periodically to ensure that the procedural timetable continues to work for everyone, particularly if circumstances have changed by virtue of a pandemic, illness or otherwise. □

4. The tribunal to remind parties and counsel at the first case management conference that it welcomes seeing younger practitioners do advocacy on procedural calls and at hearings. □

5. The tribunal, parties and counsel to schedule a comfortable hearing timetable, to give less experienced young practitioners reasonably unrushed time to advocate. □

6. Institutions to support the tribunal’s role above, for instance by helping to devise and analyse the diversity questionnaire and expressly identifying in its rules that the tribunal should invite comment on the reasonableness of a draft procedural timetable. □

7. Counsel team to run an internal work-shop to encourage advocacy by junior counsel, to discuss how to find one’s personal and authentic mode of advocacy, and to challenge with the help of coaching or otherwise any unconscious assumptions about what amounts to effective advocacy. □

8. Institution and tribunal to request, and counsel to proactively provide, CVs of junior counsel members with a view to consideration by the institution for future arbitral appointments. □

9. The tribunal and institutions to run a survey amongst client and counsel team members at the end of each phase of arbitration to canvass well the proceedings ran from a diversity and inclusion perspective and how likely the respondent is to stay in international arbitration. □

10. At the end of the arbitration, tribunal members to publish on their profiles that they have followed the checklist in arbitrations in which they have participated. □

Start of proceedings: diversity questionnaire

1. Please select the ethnicity that you most closely identify with:
□ Black
□ East or Central Asian
□ Latin American or Hispanic
□ Middle Eastern
□ Mixed ethnicity
□ North American or other indigenous
□ White
□ Mixed ethnicity
□ Prefer not to say

2. Please select the gender you most closely identify with:
□ Female
□ Male
□ Other
□ Prefer not to say

3. Please select the sexual orientation you most closely identify with:
□ LGBT+
□ Hetero sexual
□ Other
□ Prefer not to say

4. Please indicate your year of qualification as a practising lawyer. If you have more than one qualification, please answer in relation to the legal system most relevant to the present arbitration. Year:__________

5. What is your role in this arbitration?
□ Private practice (counsel)
□ In-house practice
□ Tribunal secretary

6. Do you have care responsibilities (for example in relation to your children, spouse or your parents) that require significant time commitment?
□ Yes
□ No
□ Prefer not to say

7. Do you welcome significant drafting and speaking opportunities in this arbitration?
□ Yes
□ No
□ Prefer not to say

End of proceedings: diversity questionnaire

1. Please select the ethnicity that you most closely identify with:
□ Black
□ East or Central Asian
□ Latin American or Hispanic
□ Middle Eastern
□ North American or other indigenous
□ White
□ Mixed ethnicity
□ Prefer not to say

2. Please select the gender you most closely identify with:
□ Female
□ Male
□ Other
□ Prefer not to say

3. Please select the sexual orientation you most closely identify with:
□ LGBT+
□ Hetero sexual
□ Other
□ Prefer not to say

4. Please indicate your year of qualification as a practising lawyer. If you have more than one qualification, please answer in relation to the legal system most relevant to the present arbitration. Year:__________

5. What is your role in this arbitration?
□ Private practice (counsel)
□ In-house practice
□ Tribunal secretary

6. Do you have care responsibilities (for example in relation to your children, spouse or your parents) that require significant time commitment?
□ Yes
□ No
□ Prefer not to say

7. How reasonable was the procedural timetable (as adjusted) for this phase of the arbitration, taking into account in particular any care commitments in your private life, on a scale from ten (extremely satisfied) to zero (not at all satisfied)? Answer:

Please comment:

8. How satisfied were you with the drafting and advocacy opportunities provided to you during the course of the arbitration, on a scale from ten (extremely satisfied) to zero (not at all satisfied)? Answer:

Please comment:

9. In light of your experiences to-date, how likely are you to stay in in-house/private practice for the duration of your career? Answer:

Please comment:

10. How satisfied were you with the diversity of the Arbitral Tribunal, on a scale from ten (extremely satisfied) to zero (not at all satisfied)?

11. Please share other ideas for making arbitral proceedings workable long-term.

The author is a globally leading international arbitration practitioner, sits as arbitrator and lectures as External Professor. She established a global Parent Lawyers Group at her prior firm Latham & Watkins to allow men and women to flourish and progress while parenting. Hanna wishes to thank her husband Jonathan Roos for his support in brainstorming this blog and in parenting two loud lives. Some source references have been removed due to the blog format but can be obtained from Hanna directly.

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