The Cambridge Dictionary offers two definitions of the word ‘trend’; the first, ‘a general development or change in a situation or in the way that people are behaving’, and the second, simply, ‘a fashion’.
All too often, commitments to diversity have been motivated by the latter definition; diversity initiatives are supported because it is trendy to do so. Support on that basis tends to be short-term and ineffectual at leading to real change. Conversely, procuring a general development or change in people’s behaviour takes a sustained commitment. Such a change from a diversity perspective is undoubtedly worthwhile both as an end in itself and because of the benefits to the arbitration community as a whole.
We can (finally) state that there has been ‘a general development or change in a situation or in the way that people are behaving’ with respect to the promotion and development of diversity in arbitration. Our expectation is that, with the excellent groundwork established in the last few years, this trending change in the arbitration community will continue to gather pace in 2023, shining a spotlight on and promoting an increasing number of underrepresented groups.
Progress has undoubtedly been made with respect to gender diversity; the last few years have seen a steady improvement of female arbitrators appointed across the main arbitral institutions – thanks to initiatives like the Equal Representation in Arbitration (ERA) Pledge, ArbitralWomen, WWA Latam and many others. While there remains more work to be done, especially with respect to party appointments of female arbitrators, the statistics demonstrate that real change is taking place. As the chart shows, the proportion of women appointed as arbitrators more than doubled from 12.6 per cent in 2015 to 26.1 per cent in 2021.
Increasingly, steps are also being taken within the arbitration community to address broader diversity goals. Racial Equality for Arbitration Lawyers (REAL) and The African Promise continue to promote racial equality for lawyers through their active networks of lawyers and partners. The ERA Pledge has subcommittees focused on promoting female arbitrators from different racial and ethnic backgrounds, including Africa, Asia, MENA and Latin America. And in 2022, the GAR Pledge Award was expanded to recognise and celebrate initiatives promoting broader diversity rather than just gender.
The arbitral institutions continue to lead the charge in pushing for progress.
The 2022 Scottish Arbitration Centre’s Rules of Arbitration, launched in September 2022, were the first of their kind to enshrine the need for those appointing arbitrators to have regard to the concrete diversity commitments of both the ERA Pledge and REAL.
Since then, the Belgian Centre for Arbitration and Mediation introduced into its rules an express requirement for its arbitrator appointment committee and president to take into account ‘considerations of diversity and inclusion’, as well as creating a new diversity and inclusion (D&I) standing committee to promote and monitor D&I within the institution.
A further example of innovative action by an arbitral institution is the German Arbitration Institute’s DIS-ERA Pledge Gender Champion Initiative, aimed at encouraging counsel involved in arbitrator selection to consider diversity through statistical self-monitoring.
The ICC has also taken significant steps in recent years to address issues across a broad spectrum of diversity. In July 2021, it announced the creation of the ICC’s LGBTQIA network, which seeks to support the personal and professional development of LGBTQIA members of the ICC Court. A few months later, the ICC confirmed the creation of its Task Force on Disability Inclusion and International Arbitration. This marks the first such effort by an arbitral institution to make dispute resolution more inclusive for people with disabilities. These initiatives recognise that individuals in that community may face barriers based on their specific personal characteristics and seek to acknowledge and ultimately remove those barriers.
Arbitration organisations like International Council of Commercial Arbitration (ICCA), the Arbitration Committee of the International Bar Association (IBA) and the Institute for Transnational Arbitration are also playing an important role.
For example, ICCA’s D&I Committee announced at the 2022 Congress in Edinburgh sweeping changes to its governing board, including an increase in the last decade from 7 per cent to 47 per cent female membership, as well as a shift in regional membership. ICCA has also effected significant changes relating to diversity at its congresses, with a majority of female speakers for the first time ever at the 2022 Congress (compared with a cast of all-male speakers at the first ICCA Congress in 1961). Important joint initiatives being progressed with other arbitral organisations include the following.
The 2022 update by the ICCA Cross-Institutional Task Force on Gender Diversity of its 2020 report on Gender Diversity in Arbitral Appointments and Proceedings.
ICCA’s hosting of the ERA Pledge’s female arbitrator search tool, a bespoke tool run by members of arbitral institutions who sit on the ERA Pledge’s Search Committee and can help find the right female arbitrator for any arbitration.
A collaboration between the Arbitration Committee of the IBA and ICCA to draft guidelines on the promotion of all forms of diversity at arbitration conferences, to serve as a model for all.
Additionally, there are many diversity initiatives led by individuals or groups aimed at improving all forms of diversity with respect to the appointment of arbitrators. For example, in December 2022, Mute Off Thursdays (in partnership with GAR and Burford Capital) launched the first edition of its Compendium of Unicorns – A Global Guide to Women Arbitrators, profiling 176 diverse women arbitrators from different legal, cultural and ethnic backgrounds.
‘International arbitration lawyers also have an important role to play in advancing diversity more generally through their global reach and resources. Freshfields is part of a cross-firm initiative to support the International Centre for Transitional Justice in a comparative research project titled Racial Truth, Reconciliation and Redress in America that seeks to examine case studies of countries that have confronted historical oppression of ethnic minorities through truth and reconciliation commissions. Initiatives like this are a rare, but welcome, area where dispute lawyers can be united by a common end rather than facing each other at a hearing.’
Noiana Marigo, Partner
Diversity of expert witnesses
Following the success of the ERA Pledge, which now has more than 5,200 signatories and will celebrate its seventh anniversary in May this year, 2022 saw the launch of a sister pledge – the Equal Representation for Expert Witnesses (ERE) Pledge – to address the issue of gender diversity in the appointment of expert witnesses in dispute resolution procedures worldwide. Co-founders of the ERE Pledge, Kathryn Britten and Isabel Kunsman, set up the ERE Pledge after a survey in 2020 discovered that 56 per cent of arbitrators and counsel had seen no females in expert roles in the past three years and only 1 per cent had seen four or more women experts in action in the same period.
The ERE Pledge has got off to a strong start, attracting more than 830 signatories worldwide, including 100 organisations. The global steering committee includes members from around the world and a range of professions and institutions, including Freshfields partners Sylvia Noury KC, Noiana Marigo and Ali Kirby Harris. Launch parties have taken place in London and New York and are soon to take place in Paris, Dubai and Singapore.
In 2023, the ERE Pledge has plans to expand into new jurisdictions and form new subcommittees, including an active Young Practitioners Group. One of the biggest challenges facing the ERE Pledge team will be finding ways to measure progress, since information on the number of women being appointed as experts is not currently tracked or reported in any systematic way.
The arbitration community should sustain its efforts towards diversity for a myriad of reasons, but we will offer two specific ones by way of conclusion. First, arbitration practitioners love to describe themselves as part of a truly global community, and yet all too often we also lament that the same arbitrators get appointed again and again. The trend towards more diverse tribunals can only improve that issue. Second, because of its global reach, arbitration can be a leading light in jurisdictions where the legal, social or cultural context can be hostile towards underrepresented or minority individuals. Our actions, whether in the selection of arbitrators, the organisation of conferences or the recruitment of talent, can help to drive that change.