In a previous blog, we looked at diversity, specifically in relation to gender parity, in the context of adjudication. Although we have come a long way in this arena, the issue of gender diversity still casts a long shadow. It should therefore be no surprise that the world of arbitration suffers much of the same problem.
According to the recently released 2022 caseload statistics for the International Centre for Settlement of Investment Disputes (ICSID), an arbitral institution based in Washington DC, only 23% of arbitrators appointed in ICSID cases were female. Moreover, only a lacklustre 16% of appointments by parties (either individually or jointly) were women.
These statistics are not unique to ICSID. In 2022, only 27% of appointments made by the Hong Kong International Arbitration Centre (HKIAC) and 18.9% of designations made by parties were female. The London Court of International Arbitration (LCIA) has fared somewhat better, with 47% of all LCIA Court appointments in 2021 being women (though it should be noted that parties nominated women only 16% of the time.) Clearly, the issue not only lies with the low number of female appointments by arbitral institutions, but also a lack of uptake by parties to appoint female arbitrators to oversee their disputes.
As a whole, the industry is becoming more conscious of this issue and is taking steps to rectify this. For instance, a growing number of law firms, chambers and institutions have become signatories to the Equal Representation in Arbitration (ERA) Pledge, which launched in 2015 and “seeks to increase, on an equal opportunity basis, the number of women appointed as arbitrators in order to achieve a fair representation as soon practically possible, with the ultimate goal of full parity.”
Although solutions like this are a step in the right direction, the central (and systemic) issues still plague the arbitration community. Barriers to both entry and retention remain high. The LCIA points out that “the percentage of women selected as arbitrators by the parties has actually decreased in 2021 and this is compounded by a greater proportion of repeat appointments of individual arbitrators.” Furthermore, numbers for female arbitrators tend to drop off at more senior levels, as working conditions for women, especially working mothers, remain an uphill battle. The issue ends up becoming circular – women are then discouraged from rising through the ranks and the old guard remains largely undisrupted.
So what more can be done? Law firms can promote and put forward a more diverse (perhaps even anonymised) selection of CVs of arbitrators to their clients, mentor and support both aspiring and established arbitrators, and make a conscious effort to consider a wide variety of experiences when selecting arbitrators (rather than just sticking to the same established, and quite often male, names).
Whatever steps are taken, the sentiment from last week’s blog should be echoed – gender diversity falls on all our shoulders to strive for and should be an industry wide concerted effort.