Diversity in institutional arbitration: what does the data say and what next?

Promoting diversity in international arbitration to enhance the quality, legitimacy and relevancy of the arbitral process and arbitral awards is a key focus of the international arbitration community and beyond.

This article considers data on gender diversity¹ at arbitral tribunal level in institutional arbitration, and considers key steps to address the continuing disparity. We acknowledge that not everyone identifies with a particular gender and, as the ICCA Report notes, "gender diversity and inclusion cannot be fully addressed by approaching gender as a binary issue".² We focus here on binary gender diversity as the principal form of diversity reported in the sources we have identified.

The pursuit of improved gender diversity across arbitral tribunals continues to see good progress. In the five years from 2015 to 2021, the proportion of women appointed as arbitrator almost doubled, from 12.6% to 26.1%.³ This growth is primarily due to the concerted efforts of arbitration institutions which, in some instances, pro-actively nominate women practitioners in up to 54% of appointments for which they are responsible.⁴ However, serious challenges remain in increasing representation of women at tribunal level where nominations are made by the parties or by co-arbitrators. In those instances, female nominees are selected significantly less than half the time.⁵

It is critical to acknowledge upfront that a truly diverse and inclusive arbitration community will require the promotion (and inclusion) of other forms of diversity – such as cultural, ethnic, religious, sexual orientation, and disability. Arbitration institutions do not currently publish data on arbitrator appointments according to these characteristics. Unless and until they do so, it is difficult to ascertain whether and to what extent arbitrator appointments can be said to be truly diverse. In the meantime, we comment, at the end of this article, on some of the available data relating to arbitrator nationality, and on some of the efforts being made to promote diversity outside of the issue of gender.

 

Why is gender diversity at tribunal level important?

In 2016, a survey by Berwin Leighton Paisner (2016 BLP Survey) found that 68% of respondents considered gender diversity to be either "not that important" or "not important at all", while only 12% of respondents considered it to be "very important" or "important".⁶

Positively, attitudes appear to have shifted in recent years. In a survey carried out by the Singapore International Dispute Resolution Academy in 2021 and reported in 2022⁷ (2022 SIDRA Survey), 44% of respondents indicated that diversity was "important", with 79% of respondents indicating that they would like to see improvements in the gender diversity of arbitrators.⁸ Further and more broadly, a survey by White & Case LLP and the School of International Arbitration, Queen Mary University of London in 2021⁹ (2021 QMUL Survey) found that 32% of respondents believed that "commitment to a more diverse pools of arbitrators" was the second most important adaptation to arbitral rules or institutions which they considered would make such rules more attractive (after "administrative/logistical support for virtual hearings").

Some respondents interviewed for the 2021 QMUL Survey expressed the view that, though gender diversity is a "laudable goal", they would "not automatically question the impartiality or independence of a panel just because its members were all female or all male."¹⁰ A similar sentiment was recently expressed by the Honourable L. Yves Fortier.¹¹

Gender diversity, nonetheless, remains important for a number of reasons:

• Legitimacy by representation: Diversity at tribunal level reflects the parties and practitioners involved in arbitrations and enhances the legitimacy of both (a) the arbitral process and (b) any ensuing award(s). This is particularly the case where a dispute raises issues of broader public interest, for example in investor-state arbitration, although the same argument also applies in private disputes, given that arbitrators can be said to be providing an alternative to the provision of judicial services for which legitimacy is an important factor.¹²

• Improved decision-making: Diversity at tribunal level promotes critical thinking and encourages a broader range of understandings. By actively incorporating diversity of thought, the quality of any decision or award will likely be enhanced and may lead to better outcomes. Respondents to the 2016 BLP Survey referred to studies "demonstrating a correlation between gender balance and improved performance in a commercial environment", and commented that "[o]verall, a diverse tribunal may be better prepared, more task-oriented, and more attentive to the parties' arguments than a non-diverse tribunal."¹³ The 2021 QMUL Survey also reported a correlation between diversity and the perception of arbitrators' independence and impartiality.¹⁴

• Equal opportunities and increased talent: Embracing diversity at tribunal level also promotes opportunities for women practitioners which in turn provides a more level playing field for their career advancement. It also significantly widens the existing talent pool and this in turn leads to the inclusion of other perspectives. Put simply, arbitral participants who consistently overlook women arbitrator candidates may not be choosing the most suitable individual for the job.

• International law needs women: As the ICCA Report recognises, "gender diversity promotes economic growth and is part of the broader social and cultural context in which international trade, investment and arbitration function".¹⁵ Promoting the inclusion of women in arbitration may also be required by a state's international law obligations. The Committee on the Elimination of Discrimination against Women, constituted under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women 1979 (to which there are 189 State parties) in 2015 called on states to remove barriers to the participation of women "as professionals within all bodies and levels of judicial and quasi-judicial systems" and to take steps to ensure women are equally represented in the judiciary.¹⁶

 

What do the 2019-2022 statistics reveal?

• Year-on-year progress: The total percentage of women arbitrators appointed to tribunals is slowly, but surely, continuing to rise across major institutions, for example: (a) SCC – from 23% to 34%, (b) HKIAC – from 18% to 22.5%, (c) ICC – from 21.1% to 24.3% (in 2021) and (d) SIAC 22.2% to 23.2%. Where the percentage has fallen, that decrease is minimal and not illustrative of the period as a whole: for example, the LCIA figures went from 28.6% in 2019 down to 28% in 2022, having peaked in 2020 (32.8%) and 2021 (31.6%).

• Appointments by arbitral institutions:¹⁷ In 2022, several institutions made commendable progress in appointing a higher percentage of women arbitrators, often reaching close to the 50% mark (SIAC – 46.2%, SAC – 46% and LCIA – 45%) and even surpassing it (SCC – 54%). The SAC achieved a record 77% of women appointments in 2021. These results demonstrate the commitment of some of the best-known arbitral institutions to achieving gender-balanced tribunals and to setting a positive example to the wider arbitration community.

• Appointments by co-arbitrators and parties: Co-arbitrator and party appointments continue to underrepresent women. Party appointments demonstrate the lowest percentage of women practitioner nominations (ICC – 17.5% in 2021, in 2022: HKIAC – 18.9% and LCIA – 19%). These statistics highlight the need for those involved with party appointments to make concerted efforts to encourage – and secure – greater diversity in the nomination process.

• Repeat appointments: The ICCA Report reveals that repeat appointments of women arbitrators may "obscure the true extent to which the "pool" of arbitrators is expanding to accommodate more women".¹⁸ The LCIA, one of a handful of institutions which publish data on repeat appointments by reference to gender,¹⁹ acknowledged that, in 2022, 31% of women appointments were repeat appointments, compared to 14% for men.²⁰ When combined with data showing that, in 2021, men comprised two-thirds of first-time arbitrator appointments, this suggests that the "pool of experienced arbitrators may be growing more slowly for women than it is for men."²¹

• Data disclosure by arbitral institutions: Institutions that consistently publish their figures on gender diversity demonstrate their commitment to accountability. However, certain institutions continue to refrain doing so at all and others provide only partial information (such as data on institution-led appointments). Finally, there are a few which have withheld all or part of their 2022 data. Without that information, it is simply not possible to accurately assess gender diversity at tribunal level and what part of the journey remains ahead.

 

What can law firms do to bridge the gender gap?

The 2019-2022 statistics are unequivocal: women continue to be underrepresented in both party and co-arbitrator nominations. See this document for a breakdown of some of the relevant statistics.

Tools are available to help address this imbalance:

• Gender-balanced nominations: Law firms can pro-actively present more diverse lists of potential arbitrators to parties as well as working with opposing counsel to ensure that co-arbitrator nominations follow suit. The Checklist of Best Practices for the Selection of Arbitrators, prepared by the Equal Representation in Arbitration Pledge, may assist. It outlines best practices for the selection of arbitrators, promoting the use of objective criteria to increase both efficiency and diversity in arbitrator selection.

• Anonymised CVs: Anonymising CVs during the selection process demonstrably helps mitigate (and ideally, negate) unconscious bias. This allows arbitrators to be assessed solely on their qualifications and expertise, rather than on personal characteristics. The ICCA Report recommends that lawyers be conscious of discussing the credentials of qualified candidates in gender neutral terms.²²

• Consultation and compendiums: When compiling potential nominations, law firms can consult resources such as the Compendium of Unicorns, which provides a comprehensive list of diverse arbitrators. The ICCA Report highlights several additional resources which list qualified women candidates,²³ such as the database hosted by ArbitralWomen, and Women Way in Arbitration which provides a continuously updated list of Latin American arbitrators.²⁴

• Recruitment and retention: Some of the barriers identified by the ICCA Report to achieving greater inclusion of women arbitrators on tribunals include "leaks in the pipeline" of qualified women candidates, such as lower retention of women in private practice, the promotion of fewer women to senior ranks within an organisation, and the lack of availability of opportunities (or the awareness of opportunities) for women to gain relevant experience and promote their visibility and reputation among users of international arbitration."²⁵ The report also considered the impact of unconscious bias and gender stereotyping. All of these issues must be addressed, to a greater or lesser extent, by the recruitment and retention policies of law firms.

• Educating parties: Law firms can highlight the benefits of gender-balanced tribunals to parties. Firms should emphasise the value of diversity within the decision-making process and the positive impact it will have on the ensuing award. In addition, firms should also highlight that doing so aligns with parties’ own gender equality agendas and policies. Of course, many parties do not require such prompting or explanations.

• Encouraging inclusivity: Law firms can invite women practitioners, particularly those seeking to gain their first appointments, to speak at seminars/symposiums and participate in other industry-wide events. Providing women with these platforms at an early stage of their career will help foster the importance of gender-balanced tribunals within the wider arbitration community.

• Collaboration: Long-lasting and impactful change requires industry-wide collaboration and consensus. When it comes to nominating and appointing arbitrators (including exchanging lists of potential candidates), law firms can collaborate with each other in order to promote a more diverse arbitration community.

Gender balanced tribunals are not only a matter of equality: they are essential for the effectiveness and legitimacy of both (a) the arbitration process itself as well as (b) the wider arbitration community. By embracing gender equality, the arbitration community can create an environment which more accurately reflects society and properly promotes diversity. Doing so will pave the way for a more inclusive legal community and in turn encourage greater numbers of women to pursue careers as arbitration practitioners.

As we move forward, it is critical for firms, practitioners, and institutions alike to continue to actively promote and prioritise gender equality at tribunal level. The figures for the period 2019-2022 offer hope and optimism; the 2023 figures and beyond must demonstrate change.

 

What can parties do to bridge the gender gap?

A law firm’s actions in offering and encouraging diversity of arbitrator appointments will only be effective if parties are receptive to diverse appointments (and many are). The parties often have the final say on who to nominate/appoint as arbitrator and so can promote diversity in the following ways:

• Acknowledge the lack of diversity: A first step is to acknowledge that there is an issue that requires change. This will encourage those involved in the decision-making process that there is a need and desire to promote diversity and not just to pay lip-service to it.

• Commit to implement change: Having a policy and signing pledges to actively promote diversity sets the expectation among employees that it is not just “alright” but expected that changes should be made to everyone’s normal way of doing business. This will help parties to move away from the status quo. 

• Challenge your advisors: Ask your legal representatives what they are doing to promote diversity. Businesses are predominantly driven by their client’s needs and expectations, and law firms are no exception. If diversity is seen as an important issue to their clients, law firms are more likely to actively promote diversity and challenge institutions that are falling short.

• Be open minded about appointing different arbitrators: There is a tendency to appoint the same familiar faces, but parties should be open minded when considering appointments. Parties might even consider a requirement to promote diversityto help change the mind-set.

• Support diversity initiatives: Parties might consider supporting diversity initiatives, either financially or by donating time or resources.

 

What about other forms of diversity?

Of course, diversity is broader than gender. A truly diverse arbitration community welcomes and promotes arbitrators of all circumstances and backgrounds. As the ICCA Report itself acknowledges, “there is much work to be done to address diversity and inclusion in international arbitration in terms of ethnicity, nationality, geography, race, religion, age, and sexual orientation, among others, as well as how these factors intersect with each other.”²⁶ Less than a third of respondents to the 2021 QMUL Survey believed progress had been made over the preceding three years in respect of geographic, age cultural and, particularly, ethnic diversity of arbitral tribunals.²⁷ The majority of respondents to the 2022 SIDRA Survey would like to see more diversity in the nationality (73%), ethnicity (66%) and age (52%) of arbitrators.²⁸

Although itself constrained by the data available, the ICCA Report includes discussion of the nationalities of those women selected as arbitrators. The report found that, in 2021, 45.4% of women arbitrators held nationalities from Western Europe and the UK. Only 1.9% held nationalities from the Middle East, and 2.5% held nationalities from Africa. Looking at appointments by nationality only (regardless of gender), the LCIA reported that in 2022 60% of all appointments were British, most of which (79%) were by nomination of the parties or co-arbitrators.²⁹ The HKIAC reported a majority of arbitrators with Hong Kong nationality (32.7% when appointed by the HKIAC, 24% when nominated by the parties or co-arbitrators), with no appointments of arbitrators from the Middle East, Africa or South America. For the ACICA, only 9% of arbitrators in 2021 held a nationality other than Australian.30

Although there is a long way to go, the arbitration community is taking strides to promote other forms of diversity. Examples of initiatives include:

• ICCA Diversity and Inclusiveness Policy and Implementation Plan: In May 2020, ICCA released its first formal policy and implementation plan concerning diversity and inclusion. ICCA has committed to identify and work to eliminate barriers that may limit equitable access to ICCA activities and opportunities. The implementation plan includes pledges to continue outreach to build diverse participation and membership, to ensure publications and research are from a diverse range of authors offering inclusive perspectives on international arbitration, and to develop a best practice guide for diversity and inclusion in respect of conferences and events, publications and working groups and project committees.

• ICCA-IBA Arbitration Committee Conference Diversity Checklist: In October 2023, ICCA and the IBA’s Arbitration Committee published a conference diversity checklist which aims to encourage and foster diversity, equity and inclusion of speakers and delegates when conferences are organised globally. As ICCA states, representation at arbitration conference “matters”.

• Racial Equality for Arbitration Lawyers (REAL): REAL is a group of global lawyers practising in international arbitration and striving to achieve racial equality for arbitration lawyers, launched by members of ArbitralWomen in 2020 to open the door of arbitration to more practitioners. REAL's strategic goals include: to focus on racial equality and representation of other unrepresented groups within any country that deals with international arbitration, to create a platform to recognise and address issues of systemic discrimination and implicit bias in international arbitration, and to create a safe space for under-represented groups in international arbitration to discuss problems and challenges they face.

• The African Promise: Modelled on the ERA Pledge, the African Promise's mandate is to tackle the under-representation of Africans on international arbitration tribunals and in arbitrations connected to Africa, as well as to improve the profile of African arbitrators globally.³¹

• ICC Guide on Disability Inclusion in International Arbitration and ADR: Published in October 2023, the ICC’s guide aims to provide practical guidance on how disability inclusion can become a “standard feature” of arbitration and ADR. The guide is a welcome addition to the landscape in relation to matters which have not previously received significant attention in the arbitration community.

• ICC Dispute Resolution Services expanded LGBTQIA+ Network: In June 2023, the ICC announced the launch of an expanded LGBTQIA+ network, which was first established in 2021. The ICC network will work "to support LGBTQIA+ entrepreneurs and dispute resolution practitioners for capacity-building and information-sharing activities. It aims to support personal development, enable best practice sharing, build understanding, ensure accountability, and create a safe and inclusive environment for those in the LGBTQIA+ community."

DLA Piper is a signatory of the ERA Pledge, and the firm and its individual lawyers support a range of initiatives committed to increasing diversity, equality and inclusion in arbitration.

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The authors would like to thank former colleagues Maria Scott and Victor Croci for their contributions to this article.