GENDER EQUITY AND INTERNATIONAL ARBITRATION: WHAT IS HAPPENING AND WHY Sophie East, Partner and Kate Venning, Senior Associate, Bell Gully

Transcription

1 GENDER EQUITY AND INTERNATIONAL ARBITRATION: WHAT IS HAPPENING AND WHY Sophie East, Partner and Kate Venning, Senior Associate, Bell Gully AMINZ-ICCA International Arbitration Day (Queenstown, 20 April 2018) 1. Introduction 1.1 We are at a stage today where gender equity in international arbitration is no longer simply a problem we have identified, but one which is being actively addressed. This paper outlines what is being done and asks whether it is working. 1.2 We will start by briefly discussing the reasons why gender equity is an issue for the international arbitration community, and why it must remain an agenda item. The second part of this paper gives an overview of some recent statistics, some initiatives being pursued, and some trends emerging. 1.3 The statistics and the initiatives in this area largely focus on the under-representation of women in arbitral appointments. Accordingly, this is the focus of this paper. However, the initiatives being taken could easily be applied to increase the number of women practitioners in the international arbitration community generally, and to address the wider diversity issues in international arbitration and the legal profession. 2. Why the issue exists and why we must confront it 2.1 At the risk of going over well-trodden ground, it is worth perhaps reminding ourselves that there is absolutely no doubt that historically (and still) arbitral appointments are predominantly men and disproportionately so given the number of female international arbitration practitioners. Half of the world s population are women, 20% of the partners in London law firms are women 1, and women increasingly dominate the legal profession (for example, in 2018, of the 13,103 lawyers currently practising in New Zealand, 6,553 are women and 6,550 are men). 2 However, the numbers of women practising are not reflected in representation on arbitral tribunals There are many possible reasons for this under-representation, including that: Arbitrators are usually drawn from the same pool and those arbitrators get chosen again and again. This creates barriers for new entrants. 4 A related point is the inherent bias that often exists in the selection of an arbitrator. Parties to a dispute will generally want the tribunal to be made up of experienced and able arbitrators who will determine the dispute fairly and efficiently. More men have sat as arbitrators than women and therefore there are more Berwin Leighton Paisner report on International Arbitration Survey Diversity on Arbitral Tribunals, Are We Getting There?, page

2 male arbitrators with experience for parties to point to thus making the appointment of more men a given. The parties may not be concerned that equally able candidates could have been excluded from consideration. Parties have one opportunity to have a dispute determined in their favour and, for wholly legitimate reasons, they will have a very short-term view of the appointment process. 5 This issue may be exacerbated by a lack of visibility around potential female candidates. There is also the pipeline leak problem that is, there may be less female candidates to choose from as fewer women than men progress to the senior ranks of the legal profession where arbitrators will likely be selected from. 6 For example, in New Zealand as at 1 February 2018, the number of female lawyers in multi-lawyer firms was 61.2%, but the number of female partners in those firms was 27.5%. 7 (d) There is some degree of unconscious bias in favour of men There has been extensive writing on the reasons why gender equity (and diversity more generally) is desirable and important. In the context of international arbitration it may be said that: (d) (e) Greater gender diversity enhances the quality of the arbitral process. The research supports the position that different perspectives in a tribunal leads to better decision making. 9 In the gender context, studies have shown a correlation between gender balance and improved performance in a commercial environment. 10 Diversity and inclusion has value in itself. A system serving the needs of a particular community should reflect the make-up of that community. If it does not, this potentially affects both the legitimacy and longevity of the arbitral process. 11 Widening the pool of arbitrators gives parties greater choice and may lead to fewer conflict situations, as well as greater efficiency due to more competition for appointments as arbitrator. 12 A wider and more diverse arbitral pool may mean less risk of increased regulation for international arbitration as it mitigates the concern that arbitrators are operating in an under-regulated private cartel of elite arbitrators In addition, increasing gender equity in international arbitration is important as it is a step towards an increase in diversity generally in international arbitration. That is, diversity of age, culture, nationality and experience. In many ways, improving gender diversity is an obvious starting point for improving diversity generally In our view the position is well summarised by Donald Donovan, ICCA President, who said (when speaking on how international arbitration might be made truly international): If the impact of international arbitration is to be international, the composition of those acting in the system as arbitrators, as advocates and as administrators must be as well. That is, the profile of the participants must reflect diversity by way of nationality, ethnic origin and gender of those who have a stake This sentiment is apparently shared across the profession. For example: In the 2016 Berwin Leighton Paisner survey on diversity on arbitral tribunals, 56% of respondents (being arbitrators, corporate counsel, external lawyers, users of arbitration and those working at arbitral institutions) said that they consider diversity when drawing up a short list of potential candidates for appointments as arbitrator. 47% of respondents said that they were likely to consider diversity more often in the future than they had in the past. 16 In the same survey, 84% of respondents stated that they thought there were too many male arbitrators on panels, and 50% of respondents thought that it was desirable to have gender balance on arbitral tribunals , page 2. Berwin Leighton Paisner paper Diversity on arbitral tribunals: background note, 2016, page 4. New Zealand Law Society, Snapshot of the profession 2018, LawTalk Magazine, March 2018, page 53. Berwin Leighton Paisner paper Diversity on arbitral tribunals: background note, 2016, page 4. Berwin Leighton Paisner report on International Arbitration Survey Diversity on Arbitral Tribunals, Are We Getting There?, page 3. Berwin Leighton Paisner paper Diversity on arbitral tribunals: background note, 2016, page 5. Berwin Leighton Paisner report on International Arbitration Survey Diversity on Arbitral Tribunals, Are We Getting There?, page 3., page 3. Donald Donovan address at the China Arbitration Summit of September 2016, quoted in F.Adekoya, SAN, Is International Arbitration Truly International The Role of Diversity, March 2018, page 6. Accessed at Berwin Leighton Paisner report on International Arbitration Survey Diversity on Arbitral Tribunals, Are We Getting There?, page

3 (although 41% said it makes no difference ). 23% of respondents thought that they had lost appointments as a result of their gender. 17 In the 2015 International Arbitration Survey by Queen Mary University of London and White & Case, respondents were asked what improvement they would like in international arbitration if they could have any. Among the suggestions was broadening the pool of arbitrators in number as well as in ethnic and gender diversity What do the numbers suggest? 3.1 At the beginning of 2016, the ICC announced that it would start to publish the names of arbitrators serving in ICC administered cases. This is a useful tool by which to analyse the progress being made in increasing the number of female arbitrator appointments. Indeed, there appears to be widespread support for such reporting. In the Berwin Leighton Paisner survey, 70% of respondents thought that it was desirable for institutions to publish statistics about the gender and ethnic or national identity of appointed arbitrators. 28% said that the content of the statistics would influence their choice of institutional rules in the future. 19 Some of these statistics are discussed below. 3.2 In 2016: For the ICC, women arbitrators represented 14.8% of nominations or appointments made by the parties, co-arbitrators or the Court. 20 SIAC s annual report discloses there were 341 arbitrator appointments, of which 44 were female. Of the 167 arbitrators appointed by SIAC, 38 (22.8%) were female. Of the 145 arbitrators nominated by the parties, 5 (3.4%) were female. Of the 29 arbitrators nominated by co-arbitrators, 1 (3.4%) was female. 21 The LCIA reports that 102 of 496 individual arbitrator appointments (20.6%) were female. Of these, 80 (78.4%) were selected by the LCIA Court, 9 (8.8%) were selected by the parties and 13 (12.7%) were selected by the parties nominees. That is, of 197 total appointees selected by the LCIA, 40.6% were women (up from 28.2% in 2015), of the 219 appointees selected by the parties, 4.1% were women, and of the 80 appointees selected by the nominees, 16.3% were women. 22 This suggests (as does the SIAC data) that the institutions seem to be doing a better job on gender diversity than the parties. 3.3 In 2017: For the ICC, female arbitrators represented 16.7% of nominations or appointments made by the parties, co-arbitrators or the Court. The ICC Court appointed a higher percentage of women (45%) than the parties (41%) and the co-arbitrators (13.7%). 23 SIAC s annual report discloses that of the 145 arbitrators appointed by SIAC, 43 (29.7%) were women. This was an increase from 22.8% in Apart from the issue of arbitral appointments, in 2017 women represented 4 of the 22 members of SIAC s Court of Arbitration (18.2%), and women constituted 75% of SIAC s management and Secretariat. 24 Results from Dispute Resolution Data (which began collecting data on gender in 2015) show that in the 10 most represented case types, as at December 2017, 8 out of 10 case types showed approximately 70% or more male arbitrators. The most diverse caseloads were Employment (50/50 split) and Technology with 31% female arbitrators. Financial Services/Banking and Construction were the worst with 13% and 14% respectively While the above statistics confirm that there is a long way to go to achieve gender equity in international arbitration, the availability of these statistics and the fact that this is being reported (and therefore matters) is a step in the right direction. 4. What is being done? 4.1 Recognising the undeniable gap in gender equity in the international arbitration community, and driven by the sort of desire for change reflected in the surveys discussed, recently there have been several important , page 6. Queen Mary University of London and White&Case, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, page 10. Berwin Leighton Paisner report on International Arbitration Survey Diversity on Arbitral Tribunals, Are We Getting There?, page Singapore International Arbitration Centre, Annual Report 2016, page 16. The London Court of International Arbitration 2016: A Robust Caseload, page Singapore International Arbitration Centre, Annual Report 2017, page 17. Debi Slate, Gender Diversity in International Commercial Arbitration the Elusive 50/50 Balance, 24 January Accessed at

4 initiatives undertaken globally (and locally in countries like New Zealand) to redress the gender equity gap. Some examples are discussed below. 26 The Equal Representation in Arbitration Pledge 4.2 In 2015, in recognition of the under-representation of women on international arbitral tribunals, members of the arbitration community globally drew up a pledge to take action. This is the Equal Representation in Arbitration Pledge On an equal opportunity basis, the Pledge seeks to increase the number of women appointed as arbitrators in order to achieve a fair representation as soon as practically possible. The ultimate goal is full parity. The Pledge has two general objectives: to improve the profile and representation of women in arbitration, and to appoint women as arbitrators on an equal opportunity basis. 28 The Pledge also aspires to be a first step in the direction of achieving more equal representation of all under-represented groups in the arbitration community. 4.4 The final version of the Pledge was the result of a collaborative effort between global representatives from corporate entities, states and arbitral institutions, as well as counsel and arbitrators. 29 It was launched on 18 May 2016 in London and had 2658 signatories as at 3 April Though it is difficult to definitively say that the Pledge is behind the growth in the number of female arbitral appointments in the last couple of years, it must at least be a contributing factor. 31 The Alliance for Equality in Dispute Resolution 4.6 The Alliance for Equality in Dispute Resolution is a not for profit organisation launched in January 2018 with the objective of advocating for increased diversity in the international dispute resolution community It was founded by Lucy Greenwood and Rashda Rana SC and its focus is addressing the lack of ethnic and geographical diversity in international arbitration, as well as the under-representation of women in the field The Alliance provides: (i) a virtual gathering space (or forum) for practitioners to discuss topics of interest; (ii) a database of practising international arbitrators to identify appropriate candidates for a particular dispute (and assist parties to identify suitable female candidates); and (iii) a workshop which is a one-day training programme for practitioners that addresses the challenges faced in developing a more diverse community. 34 The AMINZ Gender Diversity Pledge 4.9 To take a local example, the Arbitrators and Mediators Institute of New Zealand Inc (AMINZ) is adopting a Gender Diversity Pledge as part of its Diversity Project (which is focused on a more diverse membership to meet diverse community needs). The AMINZ Pledge is a commitment by AMINZ to take all steps available to it to ensure (wherever possible): (d) committees, governing bodies, conference panels and speakers in the field of dispute resolution include a fair representation of women; where names of dispute resolution professionals for potential appointment are provided to or considered by parties, counsel, in-house counsel or otherwise, those names include a fair representation of female candidates; there is a fair representation of female candidates on the panels and lists of potential dispute resolution appointees that AMINZ has responsibility for; where AMINZ has the power to appoint a dispute resolution professional, a fair representation of females are appointed; In addition to the listed initiatives, there are of course many other positive steps being taken such as increased conversations about and awareness of the issue by way of conference sessions, articles, etc. There are also long-established initiatives such as ArbitralWomen which is doing important ongoing work in this area. Last accessed on 11 April See, for example, commentators like Holman Fenwick Willan partner Andrew Williams who has observed that with the advent of the Pledge, we are starting to see a greater number of female candidates being proposed as arbitrators, across different age groups, nationalities and socio-economic backgrounds, and with varying levels of experience. (Quoted in Lucy Trevelyan, International arbitration: a time of change, 27 October 2017, page 4, accessed at Last accessed on 11 April

5 (e) (f) gender statistics for appointments are collated and made publicly available; and senior and experienced dispute resolution professionals support, mentor/sponsor and encourage women to pursue dispute resolution appointments and otherwise enhance their profiles and practice This adoption of this pledge will be marked by an event hosted at Parliament Buildings in Wellington on 23 April The Gender Equitable Engagement and Instruction Policy 4.11 Another local example is the Gender Equitable Engagement and Instruction Policy launched by the New Zealand Law Society and New Zealand Bar Association on 5 December This has been adopted by a number of New Zealand law firms (including all of the top tier firms), by Barristers Chambers and by a number of large New Zealand corporates. While not specifically focussed on arbitration, it is an example of action being taken to achieve gender equity in dispute resolution in New Zealand The policy requires lawyers and their clients to commit to increasing the proportion of women lawyers leading court proceedings and other contentious matters. For example, signatories to the policy agree to use reasonable endeavours to identify women lawyers in the practice area relevant to the matter at issue when considering a new instruction or engagement, agree to genuinely consider instructing or recommending women lawyers to represent the client in the matter, and undertake to regularly review their level of engagement of women lawyers As well as the goal of supporting the development, progression and retention of women in the legal profession, the policy also recognises the benefits of this more widely. That is, one of the aims is to give clients access to increased choice and better service that comes with greater diversity and inclusion and to make the legal profession more representative of the community which it serves Emerging trends and looking to the future 5.1 We would suggest that there are three key trends that can be seen emerging on the issue of gender equity in international arbitration, namely: There is increasing recognition that gender equity matters and an increasing momentum in recent years to take tangible steps to achieve this. The statistics show that while the number of women appointed to arbitral tribunals is steadily increasing, the numbers are still relatively low (around 15% - 30%) given the representation of women in the wider profession. It is apparent that the arbitral institutions are leading the way in terms of appointments of women to arbitral tribunals. 5.2 In the authors view, the key to improving gender equity in international arbitration will be making firm commitments to change, collecting data regularly to report on progress against those commitments, and publishing that data so that we hold ourselves and each other to account. We cannot simply rely on the institutions to redress the balance and to appoint more women as arbitrators. Additional input is needed from nominating parties who, after all, control the majority of tribunal appointments. 37 The Pledges discussed are good examples of the ability of counsel to take the lead in this area Gender Equitable Engagement and Instruction Policy, page 2. Accessible at Gender Equitable Engagement and Instruction Policy, page 2. Accessible at The London Court of International Arbitration 2016: A Robust Caseload, page 3. See also Lucy Trevelyan, International arbitration: a time of change, 27 October 2017, page 4, accessed at