[Dhriti Mehta is a 2nd year LLB student at Campus Law Centre, Faculty of Law, University of Delhi]
Over the past few decades, concomitant with the rise of international arbitration, institutional arbitration has increasingly become a preferred option for dispute resolution. The arbitral institutions wield significant influence concerning the arbitrator appointments. In cases where the parties have not provided a procedure for appointment of arbitrators, these institutions are often called upon to appoint tribunal members or, more often, the presiding arbitrator.
Consequently, there is an increasing emphasis in recent years on broadening the spectrum of diversity across the roster of arbitrators of arbitral institutions. However, despite this emphasis, the pool of regularly-appointed arbitrators across arbitral institutions is shallow, and it is increasingly evident that the pool no longer reflects the diversity of the global community of arbitration users.
The purpose of this article is to highlight the lack of gender and ethnic diversity in arbitral institutions. The article also examines the adverse effects of such a situation and, at the same time delves into the necessity of a fundamental change. The article then discusses the remedies to address the lack of gender and ethnic diversity in arbitral institutions.
Gender Diversity in Arbitral Institutions
Among the various components of diversity, gender diversity has attracted considerable attention. Several initiatives have been embraced by arbitral institutions to bring greater gender diversity, and among them, the most recent effort is the Equal Representation in Arbitration (“ERA”) Pledge that aims to address the under-representation of women. In addition to this, some arbitral institutions have also established specialist initiatives aimed at promoting the development and increasing the visibility of women arbitrators. The Hong Kong International Arbitration Centre (“HKIAC”), for example, has launched Women in Arbitration (“WIA”), an initiative committed to the promotion and success of female practitioners in international arbitration and related practice areas in China. Despite these initiatives, the spectrum of gender diversity across the arbitral institutions has retained its inertia.
Why is there a lack of women representation in arbitral institutions?
a) The “Pipeline Leak”
The Pipeline, in its most basic sense, refers to the chain of education, experiences, and job associations that can ultimately lead to a career as an arbitrator. The lack of gender balance on arbitral tribunals is often attributed to “pipeline-leak” or lack of women at the legal profession’s senior echelons, leading to a smaller pool of possible female arbitrators. According to Lucy Greenwood, a famous international arbitrator, pipeline-leak can be attributed to various factors, including office climate, difficulties in managing dual careers, lack of female role models, and lack of flexible work options and attitudes to flexible working.
The European Commission for the Efficiency of Justice (“CEPEJ”) confirms that, in the United Kingdom, male judges are in the majority in all instances. Moreover, the proportion of women practitioners reaching the partner level in law firms is deficient. In the years 2015 and 2016, statistics demonstrated that 67.3% of the 17,335 students in law at an undergraduate level were women. In 2015, 61% of the solicitors admitted to the roll were women. However, the percentage of women becoming partners in the Magic Circle firms is only 18.8%, representing a drastic drop.
Mark Smalls, the vice president, and chief marketing officer of JAMS, has summarized the problem succinctly, stating: The most attractive recruiters to major ADR providers are former judges with substantial civil court experience or attorneys that have ascended to the senior (i.e., partner) level at major law firms. Minorities are underrepresented in both these talent pools. The same forces that keep many minorities, including from reaching the partner level at law firms or attaining the general counsel title at corporations, naturally reduce the pool of candidates that transition to a career as a mediator or arbitrator.
b) Demand- Side Problems: Implicit Bias
Party autonomy is the cornerstone of arbitration and parties have the final say over the selection of the arbitrator unless the power is delegated to institutions (in 2018, for example, ICC data showed that parties appointed arbitrators in 57% of International Chamber of Commerce (“ICC”) cases. For the London Court of International Arbitration (“LCIA”), the figure was close to 46%). Although the pipeline leak is an essential part of why women are excluded from representation in arbitral institutions, it is not the only issue. Even a woman with the same level of expertise and experiences as her male counterpart may not be selected as an arbitrator by parties because of implicit bias and gender stereotyping. Both implicit bias and gender stereotyping cause parties to make assumptions about female arbitrators, which results in women not being selected to panels even though they may be qualified for such positions.
Ethnic Diversity in International Arbitration
International Arbitration is not a just system. As Professor Caron, suggests, it is a framework under which matters involving parties from a mosaic of ethnic backgrounds are individually resolved. However, the arbitrator’s pool across the arbitral institutions still looks the same: “a tightly knit-Anglo European and American Gentlemen’s Club.”[1] Even the empirical literature on this issue reinforces the conclusion that Arbitral Institutions still suffer from over-dominance of Anglo-Europeans and American arbitrators and under-representation of arbitrators from developing countries.
The London Court of Arbitration, for example, in the fiscal year 2018, recorded a total of 499 arbitral appointments, out of which only 18 (3.6%) arbitrators were from Africa and Middle Eastern Countries while there were 291 (58.31%) British appointments. Similarly, with respect to the ICC cases, in 2018, less than (14%)of the arbitrators appointed in ICC administered arbitrations were from Africa, Asia, and the Pacific, even though the geographical region made up to (33.5%) of the parties.
Further, the data concerning Singapore International Arbitration Centre (“SIAC”) administered arbitrations in 2019 shows that though the arbitral appointments from Asian Countries recorded a high (46.8%)- the arbitral appointments from Europe, America, and Australia continued to dominate (50.9%), and from the Middle East and African Countries continued to be stunted (0.28%).
Reasons for status-quo in arbitral institutions
The first and foremost reason for the dominance of Anglo-Europeans appointed by the arbitral institution is that from a historical vantage point, the theoretical origin and development of contemporary international arbitration, like most of the principles of law, has its roots in the dominant Western legal traditions. Western Laws and institutions have a long history of transplantation into other societies around the world. The rest of the world has always been in a constant state of learning Western law, and the Western World has been continuously teaching the law.
Further, the predominance of Anglo-Europeans appointed by Arbitral Institution is because of the hierarchical relationship between Anglo-European and non –Anglo European Countries that has not ended with colonialism. This hierarchical relationship has not only created the perception of the superiority of the arbitrators from Anglo-European Countries but has also justified the dominance of elite Anglo- European arbitrators in Arbitral institutions on the basis that non-Anglo European countries lack the technical expertise to resolve their disputes, just like it lacks material advantages and technological know-how.[2]
Another reason for lack of ethnic diversity amongst the pool of arbitrators across arbitral institutions is confidentiality in international commercial arbitrations. Confidentiality is an essential attribute of international arbitration, and therefore, it is difficult for the parties or the litigants to acquire information about arbitrators’ conduct and decisional track record. Hence, the quality of arbitrators can only be measured by their visibility on the international stage. The more an arbitrator is present and attracts attention, the more he or she is considered to be undisputed in the area. Hence, this results in a limited pool of “elite arbitrators” who are likely to me most frequently appointed.
Why Gender And Ethnic Diversity Matters
Benefits of diversity
Several scholars have reiterated that diversity intercepts the under-representation of a particular group in a system, and thus enhances the legitimacy of the system in the eyes of the stakeholders. The international arbitration system is global, and therefore its decision-makers must reflect the make up of its users to maintain its legitimacy and status as the preferred forum for resolving commercial disputes.
Besides, diversity also reduces “Group thinking.” Group thinking is described as “a quick and easy way to refer to the mode of thinking that persons engage in when concurrence- seeking becomes so dominant in a cohesive ingroup that it tends to override realistic appraisal of an alternative cause of action.” International arbitration is not untouched by this phenomenon, primarily because of the homogenous pool of arbitrator panels, which remains “pale, male and stale.” Therefore, a diverse panel of arbitrators could bring a variety of different perspectives and devise solutions that may have not been possible had the problems only been looked from one perspective.
Lack of gender and ethnic diversity affects the quality of Arbitral Awards
Diversity leads to better questions, analysis, solutions, and processes. Therefore, the lack of gender and ethnic diversity may also affect the quality of the arbitral award. To paraphrase Deanell Tacha, a former federal judge in the United States: When judiciary is composed of people who all look the same way, speak the same way, and identify the same way, then many, many people in our country do not feel like the life experiences- and the resultant mindset -of the judges are the same as their own. Even though Deanell Tacha, refers to the judiciary, this statement might be transported to the arbitral institutions as retention of a small pool of Anglo-European male arbitrators across arbitral institutions is most likely going to hinder fairness and quality of award.
Remedies to Enhance Diversity
The previous sections make it apparent that there is a lack of gender and ethnic diversity in arbitral institutions. To address this deficit, the leading experts of international arbitration have made significant suggestions. Some of them are discussed below:
Adoption of an approach similar to Rooney rule in the National Football League ( NFL)
Sarah Vasani, an experienced international arbitration counsel, has suggested that arbitral institutions should adopt an approach similar to NFL’S Rooney rule in appointing arbitrators. The Rooney rule, introduced by Dan Rooney, the Chairman of Pittsburgh Steelers, spearheaded a requirement that NFL teams having vacancies of the head coach and the general manager should interview (but not necessarily hire) minority candidates. The interview process had to be serious, and thoughtful consideration had to be given to each minority candidate.
The aforementioned suggestion by Sarah Vasani is notable as this rule, unlike the quota system or affirmative action program, does not mandate the selection of a minority candidate. Instead, it only makes it mandatory to interview diverse candidates. In NFL, just by making it mandatory for the interviewers to interview the minority candidates, the percentage of minorities in leadership positions rose from 6 to 22 percent.
Unlocking the Pipeline
Lucy Greenwood, an international arbitrator specialising in commercial arbitration, has suggested that the diversity deficit in institutional arbitration can be eradicated only by eliminating unconscious bias. She propounds that the notion of unconscious bias needs to be discussed, accepted, and addressed in the international arbitration community so that stakeholders of the international system, including arbitral institutions, give due consideration to a diverse slate of candidates on every occasion that they appoint an arbitrator.
The active role of all stakeholders
Jackie van Haersolte-van Hof, the Director-General of LCIA, has argued that diversity is not a task for institutions only. He has suggested that all the stakeholders of the international arbitration- its users, their counsel, and arbitrators should give serious consideration to diverse candidates at every opportunity. To paraphrase him, “We all have a responsibility in respect of diversity and interest to gain from improving diversity in international arbitration. However, the change will not happen without decisive actions from all players.”
Conclusion
International arbitration unquestionably suffers from a diversity deficit, and the disparity is causing both arbitrators and parties to miss out on many of the essential benefits of diversity. Therefore, it is time for all the stakeholders in the international arbitration, including arbitral institutions, to exercise thought leadership and play a greater role by fully utilising the tools and levers (as outlined above) at their disposal. In doing so, perhaps we might move beyond the tired trope of male- white re-appointees to give a fighting chance to anyone with the will, skill, and zeal.
– Dhriti Mehta
[1] Won L. Kidane, The Culture of International Arbitration 88 (1 st ed., 2019)
[2] Won L.
Kidane, The Culture of International Arbitration 286 (1 st ed., 2019)