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(a) Why Are Women Under-represented on International Arbitration Tribunals?
Why are women so under-represented on international arbitration tribunals? The answer is not straightforward. The over-riding reason for the disproportionate appointment of men is rooted in the difficulties women continue to face in reaching the senior levels at law firms: there are simply not enough women reaching the top of the profession. However, the problem is then exacerbated by the peculiarities of international arbitration, in particular the lack of transparency in the appointment process.17
In 2012, it is probably fair to say that a significant number, if not the clear majority, of practicing international arbitrators came through the ranks as practicing lawyers acting as counsel in international arbitrations. It is therefore appropriate to focus on this route as the primary route most potential arbitrators will take in establishing their career.18 Given the numbers of female lawyers entering the profession, there should be no shortage of supply of female potential arbitrators in the pipeline. Female students in the US and the UK have been accepted to study law at around the same rate as male students since the 1990s.19 In fact, almost 65% of graduate trainees at entry level in the UK are women, according to a 2010 survey by the Law Society.20 However, it is sobering to note that the 65% figure has dropped to less than 20% by the time those graduates reach partner level.21 This is known as ‘pipeline leak’ by commentators, who attribute the leak to various factors, including office climate, difficulties in managing dual careers, lack of female role models and mentors, lack of flexible work options and attitudes to flexible working.22 At the potential international arbitrator level we are dealing with those who have reached the top of their profession, and the numbers are correspondingly extremely small. Thus, it can be posited that the main culprit for the scarcity of female arbitrators is the effect of pipeline leak. In the international arbitration field, once a female associate makes it through the pipeline to partnership, she is likely to find that almost nine out often of her partner colleagues are male, a stark comparison to when she started work, when only around four out of ten of her trainee colleagues would have been men.23
However, the figures for female arbitrators appointed to international arbitration tribunals compare poorly to female representation in the judiciary and in companies, both of which suffer similarly from ‘pipeline leak’. In England and Wales in 2011, women made up a total of 22% of the judiciary, including 15% of High Court Judges, up from 14% and 8% respectively in 2001.24 In the United States, 49 of the 162 active judges currently sitting on the thirteen federal courts of appeal are female (30.2%). Approximately 30% of active United States district (or trial) court judges are women.25 The percentage of women directors on FTSE 100 companies has been constant at around 12% for the last three years,26 with women holding 16.1% of the boardroom seats at Fortune 500 companies in 2011.27 The best estimates of 6% of women appointed as arbitrators on international arbitration tribunals is just over half the 11% figure for female partners on international arbitration teams.28 Accordingly it seems that international arbitration is suffering from more than the usual ‘pipeline leak’.
(b) Arbitrator Selection
Previous service as an arbitrator is considered to be the ‘pre-eminent qualification
for an arbitrator-candidate’.29 As so much of the arbitration process is confidential, information about an individual’s track record is limited and such information that is shared is usually kept within a small group. Largely due to the fact that there is very little else to go on, the number of previous appointments held by an arbitrator candidate is viewed as a badge of quality.
Historically there has been nowhere counsel can easily go to identify arbitrators willing to serve, so there is a natural tendency to consider the ‘elite’ names that instantly spring to mind. Second, there is safety in numbers of appointments. Counsel need to have the courage to convince clients (and themselves) that a lesser-known arbitrator will do a good job. In 2011 American Lawyer identified ten ‘top’ arbitrators.30 These arbitrators are not necessarily divided from the rest of the international arbitration world by talent alone. They are also there because it is human nature to look for validation in decisions and this is found in the awareness that others have appointed the same individuals to do the same job. However, purely because one person has been appointed a certain number of times more than another does not make him or her a certain number of times more efficient, more fair, more just or necessarily a better arbitrator. It does make him or her busier, which contributes to the situation in which many arbitration practitioners find themselves, of having to explain to clients that international arbitration is not in fact, quicker (or cheaper) than litigation before a national court. The unavailability of the ‘elite’ arbitrators contributes significantly to the delays faced in the arbitral process: in the appointing process, in fixing hearing dates, and receiving the award.
One of the difficulties faced by those wishing to appoint arbitrators for both commercial and investment treaty arbitrations is the lack of visibility of potential arbitrators. Service as an arbitrator is generally a second career, which is either concurrent with or subsequent to other professional service, such as serving as a member of the judiciary, a member of the bar, as an attorney or an academic. Women, who may have taken longer to reach a point at which they can begin to develop this second career, often suffer disproportionately from this lack of visibility. The issue is more acute with regard to commercial arbitrations, where there is little or no transparency in the arbitration process. In investment treaty arbitrations, there is a greater degree of transparency and, subsequently, more opportunity to make changes in the appointment process which could expand the pool of arbitrators under consideration.
There may also be other factors at play in the appointment process that affect the choice of an arbitrator. It has been posited that our social behaviour is not completely under our conscious control and that behaviour is driven by learned stereotypes.31 Our brains categorize information about people largely by labelling – what used to be known as stereotyping. The notion of unconscious bias is based on the idea that individuals develop an embedded, unconscious belief and response system through repeated experiences and messaging.32 Our brains are wired to categorize age, gender, race and role into the simplest way to enable easy recall of the information. Yet grouping information in this way often leaves us making unconscious assumptions which then affect our decision making.
Unconscious gender bias manifests itself in many ways. Studies have shown that men and women do not evaluate men and women equitably in professional capacities.33 In one study, resumes and journal articles were rated lower by male and female reviewers when they were told the author was a woman.34 A Swedish study of postdoctoral fellowships awarded showed that female awardees needed substantially more publications to achieve the same rating as male awardees. In this study the peer reviewers over-estimated male achievements and/or underestimated female performance.35 Women are also disadvantaged through the tendency of individuals to appoint successors (and arbitrators) ‘in their own image’, i.e., where senior counsel chooses individuals who are similar to themselves in age, background, experience, and gender. The assumption that all arbitrators are male can be pervasive. In 2007, Professor Ilhyung Lee reported on a survey he carried out into the nationalities of international arbitrators with a view to determining how nationality influenced those appointing arbitrators.36 Professor Lee looked, in particular, into what would influence someone making an appointment and asked his respondents to assume hypothetical situations in which they were making an appointment and to consider how various permutations involving an arbitrator’s nationality and national affiliation would affect their choice of arbitrator. The first hypothetical situation promulgated by Professor Lee was that the potential arbitrator had a wife with a particular nationality.37
On occasion, unconscious bias can mutate into a deliberate (and occasionally articulated) choice to appoint a man rather than a woman. In 2003, Professor Thomas Wälde told Michael Goldhaber of his experience with a male general counsel who consciously favoured ‘old boys’ in making appointments, reasoning that ‘because the other arbitrators on a panel are likely to be old boys’ he maximized his chances of influencing them by appointing his own. This general counsel said to Professor Wälde ‘we make appointments not to challenge perceived prejudices, but to cater to them’.38 In a later article,Michael Goldhaber recounted a story told by Lucy Reed, co-head of Freshfields’ International Arbitration Group, of a client being ‘openly worried’ as to how the arbitrators on the panel would regard his nominee if he chose a woman.He ultimately chose a ‘usual (male) suspect’.39
In a 2007 survey of members of Arbitral Women conducted for Global Arbitration Review, 46% of respondents said they had experienced ‘unwitting bias’ during an international arbitration.40 One possible contributor to this unwitting bias is the link that is often made between experience and quality.41 As the majority of experienced international arbitrators are male, this leads to a tendency to qualify discussions of diversity with references to maintaining standards. The view that diversity may somehow dilute the quality of the tribunal or lead to discord within the tribunal percolates through a number of the sporadic online discussions on the subject.42
Perhaps more so than in other fields, it is difficult to identify concrete reasons why we should care whether women are under-represented on private arbitration tribunals.43 Women are under-represented at partner level in law firms, in companies and in the judiciary and we can more easily articulate reasons why diversity should be (and is) addressed in the context of those careers. It is simple to make excuses as to why we should not care about the representation of women on tribunals. We may be peripherally aware of the various studies showing that gender-balanced leadership improves corporate governance, lessens unnecessary risk-taking and reduces so-called ‘group-think’. We may know of the positive correlation between gender-balanced leadership and the bottom line which has also been established.44 However, it is easy to argue that none of this is really applicable to international arbitration and the particular role played by arbitrators. Selecting arbitrators is a nuanced process, with a huge number of factors influencing the final choice. Diversity really is ‘the last feature on anyone’s mind’.45 Counsel is likely to be far more pre-occupied with researching the potential arbitrator’s track record, his or her writings in the field, his or her language capabilities and in reviewing any previous decisions, rather than noting the potential arbitrator’s gender. This is a factor of the short-term nature of most arbitral appointments. Understandably, in-house counsel only has an interest in the arbitration he or she is facing.46
(c) Achieving a Better Balance on International Arbitration Tribunals
There is an argument that we do not need to do anything more than we are doing.47 Some of the well-known female arbitrators have been quoted by journalists as being confident that women will ‘make their way’48 and that ‘fair representation will come with time’.49 Others think ‘we’ve already broken through the glass ceiling’.50 Unfortunately, the statistics show that only limited progress has been made. Back in 1997, Professor Louise Barrington reported that in 1995, the ICC named 766 arbitrators, of whom 22 (3%) were women. In 1998, the LCIA appointed 66 arbitrators, of whom one (1.5%) was female.51 In all ICSID cases registered from 1972 to 1995, there were 36 tribunals constituted, 35 three-member panels and one sole arbitrator. Of the 106 arbitrators appointed, 3 (2.83%) were women. Seventeen years later the comparable figures for commercial arbitration (around 6%)52 and ICSID arbitration (5%) indicates that a very long time indeed will need to elapse before there is fair representation.53
Many commentators place the onus for addressing diversity on the arbitration institutions.54 In her essay, Professor Rogers considered the institutions to be the ‘primary regulators’ of international arbitrators and, as such, it is a simple extension of that notion to say that the institutions should take responsibility for promoting diversity in the candidates they appoint. The rules of the major arbitral institutions are silent on diversity.55 Some arbitration institutions, like the ICC, seem to be ill-equipped to address gender diversity at all (as they do not appear to be in possession of the requisite information on the candidates).56 Others make more of an effort. For example, the AAA established an Advisory Committee on Diversity in 2006 and states that the representation of women on its arbitrator panels increased from 11% in 2003 to 13% in 2007.57 Anecdotally, it appears that efforts are made to produce names of diverse candidates, certainly by the institutions that use a list procedure, such as the ICDR.
It is notable from the limited data that is available that institutions do tend to appoint more diverse candidates than the parties. For example, the LCIA reports 336 appointments of arbitrators in 2011. Of these 336, 217 were selected by the parties or their nominees and 119 by the LCIA Court. 22 were female. Of these 22, 16 were selected by the LCIA Court (13.5% of 119) and 6 by the parties (3% of 217). The SCC reports that 6.5% of all appointed arbitrators between 2003 and 2012 (both party appointed and appointed by the SCC) have been women but that 8.4% of the arbitrators appointed by the SCC have been women.58
Gender diversity on international arbitration tribunals could be more easily addressed in the field of investment treaty arbitration, due to the greater level of public policy compliance that should be expected in this more public field of arbitrations. The ICSID Convention provides for arbitrators to be designated by ICSID Contracting States. Designated arbitrators then remain on the ICSID Panel of Arbitrators for six years.59 The designated arbitrators are expected to be ‘persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment’. In designating persons to serve on the panels, the Chairman is to ‘pay due regard to the importance of assuring representation on the Panels of the principal legal systems of the world and of the main forms of economic activity’.60 There is no reference to the diversity of panel members, unlike the World Trade Organization’s Understanding on Rules and Procedures Governing the Settlement of Disputes, which states: ‘Panel members should be selected with a view to ensuring the independence of the members, a sufficiently diverse background and a wide spectrum of experience.’61 Each ICSID Contracting State may designate four individuals to the panel of arbitrators.While admittedly a small pool, the statistics show that 205 arbitrators are currently designated by Contracting States; of those, only 30, or 14.7%, are women.62 This figure falls short of female representation in many national judiciaries. For example, the United States and Australia, both of which have made significant efforts to increase female representation in judicial appointments, have nominated between them eight men and no women to the ICSID Panel of Arbitrators.63 Only one country, the Bahamas, has nominated more than two women.64
The ICSID Panel of Arbitrators presents an opportunity for states to address the gender imbalance in international arbitration tribunals. Paralleling efforts made in relation to the appointment of individuals to the judiciary, states should designate higher numbers of women to the ICSID Panel of Arbitrators. This would allow these arbitrators to demonstrate their expertise in an open forum, where awards are publicly available. As a result, the visibility of arbitrators would be improved and the pool of candidates expanded.
Finally, in making an arbitral appointment, whether in the public or private sphere, we believe each individual must take personal responsibility for considering a diverse slate of candidates. This is because an overtly inclusive approach benefits the parties, the tribunal, counsel and the administration of justice, even in a private setting.65 In advising in-house counsel as to the identity of potential arbitrators,lawyers should proactively take an inclusive approach.66