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Guest blog: Gender diversity in arbitral tribunals – The challenges ahead – ICC

The Equal Representation in Arbitration Pledge (ERA Pledge) was launched in May 2016. Since its inception, the ERA Pledge has collected more than 4,000 signatories law firms, institutions, organizations and individuals in more than 113 countries have pledged to increase the number of women arbitrators.

Why gender diversity is important in arbitration

Gender diversity in international arbitration leads to a better arbitration process and a better outcome. As AF Haridi put it, sufficient diversity within the arbitral tribunal is “essential to maintaining arbitration as a modern, feasible and desirable method of dispute resolution” so that users of arbitration “consider the tribunal as representing a representative sample of the business world ”. Studies show that diversity brings diverse perspectives that improve the quality of group reasoning and decision-making. A investigation published in 2016 revealed that “[a] A diverse tribunal may be better prepared, more task-oriented and more attentive to the arguments of the parties than a non-diverse tribunal.

ICC Statistics

ICC has paved the way for ambitious diversity in officiating by publishing statistics related to diversity, setting the tone from above and appointing more female referees. In 2020, ICC made 1,520 nominations and confirmations. With 355 female arbitrators confirmed or appointed by the ICC Court, the percentage of women sitting in ICC arbitral tribunals reached 23.4% in 2020, a record for the arbitral institution. Last year, female appointments also accounted for 37% of total ICC Court arbitrator appointments, 28% of co-arbitrator chair appointments, and 16% of party appointments, all figures being up compared to 2019.

A constant increase the percentage of women arbitrators confirmed or appointed to the ICC since the introduction of the ERA Pledge in 2015, where ICC recorded 10.4% of women appointed or confirmed.

Problems that still need to be resolved

Some challenges to the ERA Pledge’s goal of equal representation remain, including:

  • Practice selecting more experienced and often better known male referees;
  • Diversity is not always a priority or a criterion in the process of appointing arbitrators among stakeholders;
  • Difficulty with first appointments or relatively recent arbitrators who are women;
  • Lack of retention and promotion of women in the legal profession, who otherwise could potentially become experienced arbitrator candidates; and
  • Unconscious and implicit gender bias among the legal profession and society in general.

The way forward for equal representation in arbitration

As the broader arbitration community strives to push the needle in the right direction, there is still a long way to go to achieve full gender parity for women. To do this, the various actors have a lasting role to play.

While statistics around the world show an improvement in institutional appointments, party appointments still lag behind. Institutions are perhaps the most ardent advocates of diversity in arbitration, and perhaps one of the most effective actors. Institutions should continue to promote the profiles of new female arbitrators in the arbitration community.

Law firms should increase the visibility of their women lawyers by investing in training and putting women lawyers in front of their clients, conferences and panels. Law firms should also improve the retention and promotion of female talent. Having women in leadership positions in law firms ultimately helps build confidence in women decision-makers and arbitrators while combating unconscious bias.

One of the main obstacles to increasing the number of female referees is party nomination. As one of the key stakeholders, user companies can commit to specifically requesting the inclusion of female candidates on shortlists of potential arbitrators. This commitment can be manifested by having internal referee selection processes in place, for example requiring gender and other diversity factors (such as race) as part of the process and following other recommendations set out in the ERA Pledge corporate guidelines.

While many corporate users have shared their goals of diversifying their adjudicators and legal teams, the statistics and actual initiatives have not been so transparent. Not all signatories to the Commitment have made public the actions they are taking to implement concrete measures, and of those who have written on the subject, few have specifically detailed action plans.

Men have a big role to play, especially since men represent the largest proportion of senior stakeholders in the legal profession. More and more men are serving as allies with women and continue to promote the visibility of female practitioners, encouraging clients to think outside the box and to nominate an equal number of qualified women and men on the lists of candidate arbitrators. proposed.

May this be an opportunity for all of us to renew our commitment to increasing diversity in international arbitration.

Linklaters is a sponsor of the ICC Miami Conference on International Arbitration, which runs December 12-14.

* Disclaimer: The content of this interview does not reflect the official views of the International Chamber of Commerce. The opinions expressed are solely those of the authors and other contributors.