ARBITRATION APPOINTMENTS: A MATTER OF “DIVERSITY”

Summary: 1. Introduction. − 2. The current portrait of the arbitrator model. − 3.1. Numbers relating to appointments in domestic arbitration. − 3.2. Differences depending on the origin of the appointment. − 4. A possible interpretation. 5. Positive action.

Di Francesca Locatelli -

Introduction

 

It is a well-known fact that arbitration law as a specialisation of Italian attorneys is in and of itself limited because the institution[1] is not yet sufficiently widespread and because it requires specific expertise in substantive and procedural law, that often cross over with matters proper to international law, making the matter more complicated and uncharacteristic.

This is why arbitration is an alternative tool for the resolution of litigations. It often remains the privilege of a small number of attorneys, perhaps members of law firms with an international focus that makes them more likely to practice in the field of international arbitration. In the case of firms dealing mainly with domestic arbitration, their field is more of a niche, having specific competencies in arbitration because they are mainly concerned with corporate law − one of the areas of choice for the use of the institution − or with international litigation, or as legal counsellors who also have a university career in the legal field.

Within this framework, the portrait of an arbitrator is of particular interest and reveals many surprises and matters that need to be addressed if we want to take up the challenge of finding new outlets for the legal profession in alternative dispute resolutions.

2. The current portrait of the arbitrator model

 

Sarah François-Poncet[2]  adroitly described the type of person appointed arbitrator using the expression “pale, male and stale”[3] and it is certainly not a statement that can be disparaged or considered biased because spoken by a woman. In fact studies on the subject began to spread at least ten years ago along with the first statistical studies, all consistent in reaffirming that a preponderant majority of arbitration appointments were received by male professionals, of white ethnicity and not exactly very young[4].

With reference to corporate arbitration, it appears that only 15% of arbitrators were women, while the PIABA (Public Investors Arbitration Bar Association) in 2013-2014 recorded that 78% of the arbitrators were men, white, with an average age of sixty-six years.

The SIAC Annual Report for 2015 shows that the number of women appointed as arbitrators reached 25%, while ICC statistics for the same year showed that arbitration appointments concerned women only in 10 percent of cases and that they are more frequently appointed on boards, as co-arbitrators (43%), rather than as sole arbitrator (32%) or as chairperson of the arbitration panel (25%).

ICC data for 2016 even show a slight decline, as women appointed arbitrator made up only 20%. More encouraging were the statistics of the LCIA, which in 2015 showed an increase in the number of women candidates as possible arbitrators slightly increased compared to 2014 (6.9% compared to 4.4% the previous year), with 28.2% actual appointments of women in the role in 2015, compared with 19.8% in 2014.[5]

There has been an increase in the appointment of female arbitrators in 2017, according to the available figures: this ranges from 1.7% (ICC) to 9% (SCC). Unfortunately, the level of female arbitrators in LCIA arbitrations fell by 1% in 2018. [6]

And the data examined so far cannot even be considered complete[7], as they only take into account the appointments of female arbitrators[8], while the issue of diversity in arbitration should also take into account all the other categories that currently constitute minorities in arbitration boards, on an ethnic basis[9], for example, or in relation to age, as young male arbitrators also appear to constitute a very small percentage[10].

3.1. Numbers relating to appointments in domestic arbitration.

The (few) Italian data available highlight a picture in line with the international scenario, that is, a situation in which the standard arbitrator is essentially male, and Italian of course.

Due to the strictly private nature of arbitration, the only data useful for this type of investigation are those of the bodies dealing with administered arbitration, such as the Arbitration Chambers at the Chambers of Commerce.

The Milan Chamber of Commerce carried out an interesting study on this point regarding the biennial 2015-2016. In 2015, 256 arbitrators were appointed[11], of whom only 34 (13%) were women, and only 2 were the chairperson of the board. In 2016 out of 245 arbitrators appointed, 34 (i.e. 14%: there was a slight decrease in the figure, but it remains on figures equivalent to those of the previous year) were women; of these, 7 were appointed chairperson and 13 sole arbitrator; however, the predominant part of the arbitrators remains purely male: 211 were men (86% of the appointments).

In 2017, 195 arbitrators (14.87%) were women, while 166 were men. In 2018, out of a total of 226 arbitrators, 28 (12.39%) were women, while 198 were men.

Still too little to talk about a reversal of the trend, therefore[12].

3.2. Differences depending on the origin of the appointment.

The most striking contour in the analysis of domestic statistics is how the appointments of arbitrators other than the “pale, male and stale” model change with regard to the origin of the appointment.

In particular, if the appointing authority is an arbitration chamber, although within the framework of numbers that remain extremely narrow, it is noted that the appointment of women arbitrators is greater than it is in the appointments by other authorities or directly from the parties.

Just to set an exemple, the data of the Milan Chamber of Commerce show that in 2015 the 121 appointments[13] made by the Arbitration Chamber at the Milan Chamber of Commerce saw 17% appointments (to be precise 21) in favour of women, while the remaining  83% (100 appointments) were in favour of men. In 2016, however, out of 108 appointments made by the same body[14], the number of women appointed arbitrators reached 23% (25 appointments), while 77% (83 appointments) were men. The latest available data shows that things got slightly better in 2017, when appointments in favour of women were 195, while the remaining  appointments in favour of men were 166; the numbers increased in 2018: out of a total of 226 arbitrators, 28 were women, while 198 were men.

Significantly fewer were the appointments made directly by the parties: in 2015, out of 113 appointed arbitrators, only 11 (10%) were women; in 2016, the number of female arbitrators was as low as 6 (about 6%), out of 95 appointments considered. In 2017, out of 74 appointments 1 (1%) was a woman; in 2018, the number they were 3 (ca. 3%) out of 101.

The figure is unchanged, if not worse, if we consider the appointments made by the members of the board in relation to the choice of the arbitration chair: we speak, according to the mentioned report, of 19 appointments in 2015 and 16 in 2016 and in both cases the arbitrator chosen as chairman of the board was a man. As regards the arbitrators appointed by the co-arbitrators as Chairpersons, their total number was 12 in 2017 and 14 in 2018. As happened in 2015 and 2016, all these were men.

The appointing authorities other than the aforementioned Arbitration Chamber at the Milan Chamber of Commerce, by the parties and co-arbitrators, highlight an even less encouraging scenario: the number of appointed women was only 2 in 2015 and 3 in 2016; but, in 2018, women’s appointments were reduced to zero.

The statistics mentioned above are reliable, since the picture that can be reconstructed in relation to the Italian scene is completely superimposed on the data of the international arena where in the 2016, women appointed as arbitrator accounted for 17% of appointments, slightly better than 12% in the previous year and considerably better than the 6% in 2012[15]. Compared to percentage data of the years 2015 (13% of female appointments) and 2016 (14% of female appointments), in 2017 an initial retention of the threshold of 14%, tending to the 15%, can be noticed; but the percentage lowered again to 12% in 2018.

The trend is therefore generally positive, but it is clear that the numbers, overall, are still dramatically small.

We must therefore ask ourselves a question: what are the reasons behind such a state of affairs? Is there any kind of prejudice to the appointment of arbitrators who are not men, white and of a certain age? If so, does it adversely affect the quality of arbitration, for example by excluding at root the possibility of using some prepared and efficient arbitrators on the basis of preconceived ideas?

The question is neither peregrine nor does it supplement a merely rhetorical exercise: arbitration in general, and international arbitration in particular, is a voluntary and consensual procedure in which flexibility and the possibility of the parties to affect the choice of who will solve the dispute and of that candidate’s exceptional skills is considered essential.  And a fairly recent[16] research clearly shows that, especially when it comes to appointing a sole arbitrator, factors such as gender, nationality, ethnicity and religion are, at least in appearance and according to the answers that have been given to a specific statistical questionnaire, the least important issues.[17]

Surprisingly, however, the same survey showed that enterprises and companies − which are the main users of arbitration − are groping in total darkness when it comes to identifying potential arbitrators most suitable to be appointed for the dispute concerning them: according to the research in question, in fact, they complain that they do not have enough information or an appropriate number of resumes to choose from. Yet, despite this complaint, these companies do not make a sufficient effort or investment to eliminate this gap. In such cases, they simply ask the reference attorney outside the enterprise or company itself to indicate the names of possible arbitrators[18].

The result is a sort of logical short circuit: the parties believe that the factor relating to the “sociological” qualifications of the arbitrator − i.e. gender, ethnicity or religion − are irrelevant and that it is more important to identify someone who can be said to be actually competent. Yet, as seen, the data, in their objectivity, are incisive in indicating that these parties do not really gather complete information about which candidates are  suitable and desirable exclusively by virtue of their merits or competence, essentially reiterating the appointment of arbitrators conforming to the prototype of the professional white and “elderly” man; and indeed, as research on the subject has clearly shown, the parties usually ask what kind of arbitration experience said professional has as arbitrator and, therefore, how many [19]appointments they have had in the past. But in doing so, the same appointments[20] are often perpetuated, which, in itself, is certainly not wrong when you consider that many of these professionals are actually very experienced arbitrators and capable, but in fact leads to exclude in root other potential different candidates.

We must therefore stop to investigate the possible reasons for the phenomenon and propose some positive action, both in fact and − why not, given the growing investment of the legislator on the so-called “ de-jurisdictionalization − in a de iure condendo perspective.

4. A possible interpretation

Statistical surveys show that the problem of the shortage of arbitration appointments outside the ‘pale, male and stale” is much more pronounced in relation to the appointments made by the parties[21], although even with regard to appointments from other institutions, the situation is certainly not much rosier. Curiously − but perhaps not extremely so − the phenomenon is most felt by professional women[22].

The channel from which arbitrators most often come, especially in the case of high-profile proceedings and in which a single arbitrator is required, is understandably that of lawyers. This category is therefore interesting to look at to gather useful elements for the purposes of this research.

Several factors have been identified as the main likely explanations for this state of affairs: women, or more generally candidates other than the prototype of the average arbitrator as outlined above, usually have a less marked career progression and struggle to reach the highest levels of the forensic [23]profession, which is usually the source of the professionals appointed as arbitrators[24].

Arbitrator candidates other than the “pale, male, stale model”, come up against a limited number of appointments and, moreover, are less conspicuous. Therefore, they have less of a chance of being chosen. In fact, the process of selection of arbitrators, central to the economy of the procedure in question, remains obscure and constrained within the limits of strict confidentiality: like most of the arbitration proceedings remain confidential and not known to the public, even information about arbitration appointments and the most eligible subjects for the role remain confined within rather circumscribed groups; and, even if there are women arbitrators or subjects of a different ethnicity who have performed well in such capacity, this is simply not known to the circle of players who might be interested in renewing the appointment, while the strictly confidential environment of the arbitration institution certainly does not help the dissemination of the names.

Finally, there is most likely an unconscious prejudice against different figures of arbitrator promoted and confirmed, in a sense, also by a phenomenon that is practically a “removal” of the problem: as mentioned above, when it is about approaching the question of whether it is really important or not to ensure greater diversity in arbitration appointments, the profile of fair representation of all categories is expelled with the claim that, at the time of selecting an arbitrator, “We are not being asked to make a statement, we are asked to pick the best person for the job”.[25] Yet, if that were the case, no categories of potential arbitrators should be excluded a priori, nor should any of the obstacles mentioned so far for the appointment of different arbitrators, for example women or different ethnic groups, religions, etc.[26].

A correct balance of representation, both in professions and in senior roles, and therefore also in the role of arbitrator, would be beneficial for implementing the quality of performance[27].

Indeed, the lack of diversity in the composition of the board is likely to have an effect on the quality of arbitration awards, in the sense that it may lead to the risk of forming a monolithic practice of solutions always coming from the same “doctrine”, that is, from the same group of arbitrators who continue to be appointed, ignoring that dialectic that is useful for advancing the matter[28]: in essence, the idea that a composite board of arbitration or the appointment of a single arbitrator does not need to be pale male and stale but of a more varied type can open the way for an approach to ongoing problems of procedure and solutions to be transposed into the most open and original decision.

5. Positive actions

The debate on the subject, as seen, is rather heated and has gained more and more space in recent years; but what positive actions have been or can be promoted to counter the phenomenon and promote a greater diversity in the composition of arbitration boards and arbitration appointments in general?

As is often the case, the movement to ensure fair representation in arbitration appointments was born of practice and mainly on the Internet.

The reference is clearly to groups such as ArbitralWomen[29] and The Pledge[30], spontaneous movements that seek to provide as much visibility as possible to women arbitrators. These groups are also involved in spreading knowledge about the deficit of diversity, also promoting studies and events to raise awareness about the problem[31].

Institutions such as the Arbitration Chambers were the first to respond to the challenge posed by these movements and to start drawing up some internal statistical studies on arbitration appointments and to promote diversity concretely through the appointment of female arbitrators or at least candidates different from the “stale, male and pale” stereotype[32].

All this is commendable, yet it still seems too little; to date, in fact, the whole thing is reduced to the spontaneous initiatives of the bodies making the appointments. However,  there are still no regulations on arbitration chambers that contain rules, or at least programmatic declarations of intent, aimed at really promoting diversity.

In short, we should also acknowledge the importance of presenting numerous other proposals, such as the rule that the arbitration chair should be of a different sex or ethnicity or geographical origin than other members of the board, especially in international arbitrations[33].

Another suggestion could be to make blind appointments, that is to choose the subjects to be appointed only in the light of their curriculum vitae but without knowing their names beforehand[34].

In fact, some people have postulated making appointments according to the criteria of table rotation or even a draw between the arbitrators of the various bodies[35], a solution which, however, is exposed to the censorship that in this way, on the altar of diversity lies the risk of sacrificing the criterion of the specific competence of the arbitrators, especially when viewed in relation to the peculiarities of the dispute: yet this aspect is one of the core functions of arbitration.

The movement that led to the rise in interest in diversity studies in arbitration appointments has led, therefore, to some reactions that are showing the first signs of change.

Above all, appointing authorities constituted by national and international arbitration chambers have contributed − data in hand − to increase appointments aimed at overcoming the pattern and perhaps the “male, pale and stale” stereotype.

The problem, as you can immediately understand, is that the appointments made by arbitration chambers are only a small part of the overall number of arbitrations. It is even estimated that 75% of the appointments remain in the hands of the parties and do not even emerge, given the confidentiality that characterizes the institution.

The diversity paradox has been discussed in this regard because it is the private parties who, in the various researches and surveys, have declared that the point essentially upheld as paramount when carrying out the choice of the arbitrator is the specific competence of the same: but it is the parties themselves, as mentioned above, that tend to reiterate the appointments of those who have already played the role in the past, thus denying at the root any possibility of implementing diversity. In other words, by acting in this way, they absolutely preclude the choice of the arbitrator in the most appropriate sense through the exclusion a priori of some candidates[36].

So, perhaps the keystone still to be explored for tackling the problem in a more radical way would be to try to introduce — even in terms of positive law — the idea that an arbitration appointment carried out without taking into account the parameter of diversity is a poorly performed appointment.

The idea seems at first sight provocative and, in a way, it is; however, when you think about it, it is not even so peregrine. How many provisions do, in fact, involve assessments of the personal characteristics of the arbitrators?

To remain within the Italian legal system, certainly, it goes without saying that the only requirement to date is that of the ability of the arbitrator to act and, in this sense, the idea of introducing female quotas or reserves appears completely out of place; moreover, there are other provisions that linger on the validity of the appointment with regard to the particular subjective characteristics of the arbitrator, such as those involving recusal, or cases of any type of friendship or enmity, interest, etc., or rules such as those concerning the substitution of the arbitrator that may imply the existence of personal reasons or even just of opportunities for which an arbitrator must be replaced, which show that the scenario is actually more open and shapeable, obviously from a de jure condendo perspective, than that which might appear at first.

As always, in these cases, we are in the presence of choices that are largely influenced also by legislative policy assessments, which in fact still seem very far from thinking about having to deal with diversity in arbitration appointments.

There are, however, other areas − clearly more common in labour law, which certainly does not deal with the professional relationship inherent in arbitrators − where the issue of diversity begins to appear also from the legal point of view and related to the profession of law.

So, for example, perhaps one might think, at some future date, of introducing among the possible causes of recusal by arbitrators the fact that the board is not set up in such a way as to ensure a greater diversity? It seems to be a milestone that is still very far away and that we need to reflect on at length to avoid possible and even facile instrumental uses of such a reason for recusal.

Above all, to refine, also in jurisprudence and doctrine, a sensitivity and a possible legal approach that would effectively guide the decisions to be made in this area by establishing firm principles which may serve as guidelines, ex ante, also for parties and institutions when appointing arbitrators.

[1] See: Isdaci, Nono rapporto sulla diffusione della giustizia alternativa in Italia at http://www.isdaci.it/wp-content/uploads/2016/06/eBook_nono-rapporto_ISDACI.pdf: “From the analysis of the data collected by Isdaci for the census of all the centres, public and private, that in Italy offered alternative dispute resolutions in 2015 (the so-called Monitoring of ADR Centres), the following overview emerges: 143 arbitrations were lodged in 2015, of which 66 were held at the Chamber of Commerce and 77 outside; 159 arbitrators were incardinated in arbitrations in 2014, of which 78 at the Chamber of Commerce and 81 outside. Therefore the use of the institution between 2015 and 2014 declined by 10%. See also ISDACI, Unidcesimo rapporto sulla diffusione della giustizia alternativa in Italia, at http://www.isdaci.it/wp-content/uploads/2016/05/undicesimo-rapporto_isdaci.pdf, which shows even smaller numbers: arbitrations ruled by arbitration chambers lowered in 2017 (-17.7%).

[2] International Arbitrator at the ICC, and author of several publications regarding arbitration, such as François-Poncet et al., Enforcement of Arbitral Awards Against Sovereigns SCC, Case Enforcement in France, 2002, 49; id., SCC Arbitral Awards: 2004-2009; id., Final Arbitral Award Rendered in 1998 in Case 99/1997– (SAR) 2000 – 2;  id., Enforcement of Arbitral Awards against Sovereign States or State Entities–France, in et al..,  Enforcement of Arbitral Awards against Sovereigns, JurisNet, LLP, 2009; id., So You Want to Start an Investment Treaty Arbitration? Getting the Notice of Dispute Right, in 50 Years of the New York Convention – ICCA International Arbitration Conference, Kluwer Law Int’l, 2009 Dublin, Volume 14.

[3] Similarly, see Nathan, Well, Why Did You Not Get the Right Arbitrator?, in 15 Mealey’s Intl. Arb. Rep. 24 (July 2000), which states: “An observer from planet Mars may well observe that the international arbitral establishment on earth is white, male and English speaking and is controlled by institutions based in the United States, England and mainland European Union. For the most part, arbitrators and counsel appearing actively in international arbitral proceedings originate from these countries. The majority in a multi-member international arbitral tribunal is always white. The red alien from Mars will be puzzled in his own way because the majority of the published disputes before international arbitral tribunals involve parties from the developing countries and nearly three-quarters of the people on Earth live in those countries and are not white and more than half the total population are women.” See also GOLDHABER, Madame La President – A woman who sits as president of a major arbitral tribunal is a rare creature. Why? at www.transnational-dispute-management.com (July 2004).

[4] See SIAC’s Annual Reportfor2015, in http://kluwerarbitrationblog.com/2016/09/13/icc-arbitrator-appointments-a-first-look;Mulcahy, International Arbitration Survey: diversity on arbitral tribunals, Are we getting there? in http://www.blplaw.com/media/download/BLP-_Diversity_on_Arbitral_Tribunals_-_Survey_Report.pdf, which reads “Over the last 6 years BLP’s International Arbitration group has conducted a number of surveys on arbitration user perceptions regarding various issues affecting the arbitration process. This year we would like to consider the issue of diversity among appointed arbitrators. There is a perceived lack of diversity among arbitrators and that perception appears confirmed by the available statistics. While it is true that the arbitration community has taken some steps to address diversity issues, many feel that there is still some way to go. Furthermore, hand in hand with diversity goes choice. Do practitioners have enough information about new or lesser known arbitrators to enable them to make an informed choice about the pool of available arbitrators? We were interested in finding out whether practitioners think that more gender and ethnic diversity on arbitral tribunals is desirable, what consideration is given to this issue when potential arbitrators are being short-listed, whether practitioners would welcome more information about new and lesser known arbitrators and who amongst the various players in international arbitration should take the lead in promoting greater diversity. We have canvassed the opinions of arbitrators, corporate counsel, external lawyers, users of arbitration and those working at arbitral institutions”. See also Franck, Empirically Evaluating Claims about Investment Treaty Arbitration, 86 N.C. L. Rev. 1 (2007).

[5] See the statistical data summarized at https://globalarbitrationnews.com/global-arbitration-cases-still-rise-arbitral-institutions-caseload-statistics-2015/; LCIA Facts and Figures 2016 – A Robust Caseload, available at: http://www.lcia.org/LCIA/reports.aspx; http://www.viac.eu/en/service/statistics/89-service/statistiken/327-viac-statistics-2016; http://www.viac.eu/en/service/statistics/89-service/statistiken/293-viac-statistics-2015K; https://iccwbo.org/media-wall/news-speeches/icc-court-sees-marked-progress-gender-diversity/; https://www.linkedin.com/feed/update/urn:li:activity:6278599362528583680; http://hkiac.org/about-us/statistics; LCIA Facts and Figures 2016 – A Robust Caseload, p. 13; LCIA Registrar’s Report 2015, p. 4; LCIA Registrar’s Report 2014, p. 4; http://www.viac.eu/en/service/statistics/89-service/statistiken/327-viac-statistics-2016; http://www.viac.eu/en/service/statistics/89-service/statistiken/293-viac-statistics-2015; https://iccwbo.org/media-wall/news-speeches/icc-court-sees-marked-progress-gender-diversity/; https://www.linkedin.com/feed/update/urn:li:activity:6278599362528583680;http://hkiac.org/about-us/statistics.

Percentage of Female Arbitrators: 2014 2015 2016  
LCIA (London Court of International Arbitration) 11.7% 16% 20.6%  
Percentage of Female Arbitrators: 2014 2015 2016
LCIA (London Court of International Arbitration) 11.7% 16% 20.6%
VIAC (Vienna International Arbitration Center) . /. 14.3% 17.1%
ICDR (International Center for Dispute Resolution) . /. 16% 16%
ICC (International Chamber of Commerce) . /. 4.4% 14.8%
DIS (German Institution of Arbitration) . /. . /. 13.2%
HKIAC (Hong Kong International Arbitration Centre) . /. . /. 11.5%
Absolute Numbers of Female Arbitrators 2014 2015 2016
LCIA 49 71 102
VIAC . /. 8 12
ICC . /. 136 209
DIS . /. . /. 46
HKIAC . /. 16 18

   [6] “Based on available 2015, 2016 and 2017 figures, this appears to be a continuation of an upward trend. For example, the percentage of women arbitrators confirmed or appointed in ICC cases rose from 10.4% in 2015 to 14.8% in 2016 to 16.7% in 2017 and 18% in 2018 and in ICDR cases from 10% in 2015 to 15% in 2016 to 22% in 2017 and 27% in 2018”: see Anderson, Jerman, Tarrant, Diversity in international arbitration, at https://uk.practicallaw.thomsonreuters.com/w-019-5028?transitionType=Default&contextData=%28sc.Default%29

[7] In any case, for other available data, substantially in line with the issue mentioned above, see Women’s Bar Association of the District of Columbia, Creating Pathways to Success: Advancing and Retaining Women in Today’s Law Firms 11 (May 2006), at http://wba.timberlakepublishing.com/files/Advocacy%20&%20Endorsements%20Files/

Initiative% 20Reports/Creating_Pathways_to_Success -May_2006.PDF.

[8] On the subject see also Barrington, Then and Now: A Quarter Century of Women in Arbitration, in New York Dispute Resolution Lawyer 5 Jan. 2012, at www.aculextransnational.com/pdf/LB_2012_05_then_and_now_quarter_century_of_women_in_ arbitration.pdf

[9] Studies on this matter show that, out of a range of 289 proceedings examined and concluded from January 1972 to May 2015, in almost half of cases (45%) the arbitration boards were composed of Anglo-European arbitrators. In 84% of cases, the majority of the members of the board were Anglo-European; only in eleven cases (4%) were the boards arbitrated completely by non-Anglo-European courts. With regard to the African continent, however, ICSID data show that only 16 sub-Saharan arbitrators were appointed as such by the parties, while 20 were appointed by the ICSID. Cf. Ewelukwa Ofodile, Africa and International Arbitration: From Accommodation and Acceptance to Active Engagement, Transnational Dispute Management (TDM), DM/Abitral Women special on “Dealing with Diversity in International Arbitration”, July 2015, in TDM 4, (2015), www.transnational-dispute-management.com

[10] Haridi, Haridi, Towards Greater Gender and Ethnic Diversity International Arbitration, in International Arbitration Review, Kluwer law International 2015, Volume 2 Issue 2.6;. Dolinar-Hikawa, Beyond the Pale; A Proposal to Promote Ethnic Diversity Among International Arbitrators, TDM Diversity Special, July 2015. 7U.; Ewelukwa Ofodile, Africa and International Arbitration: From Accommodation and Acceptance to Active Engagement, Transnational Dispute Management (TDM), TDM/Abitral Women special on “Dealing with Diversity in International Arbitration”, July 2015, in TDM 4 (2015), www.transnational-dispute-management.com

[11] From various appointment authorities such as the CAM, the parties, the co-arbitrators and other authorities: cf. L’impegno CAM per un’equa rappresentanza in arbitrato – Una statistica di genere, at https://www.camera-arbitrale.it/upload/documenti/report-statistiche-arbitrato-cam.pdf. See also, L’impegno CAM per un’equa rappresentanza in arbitrato – Una statistica di genere, Statistiche 2017-2018, at https://www.camera-arbitrale.it/it/arbitrato/statistiche-arbitrato.php?id=354

[12] And indeed, in the opinion of the writer, the statistical sample is too limited to say with certainty that results have emerged from the positive actions we are trying to implement in various areas. Regarding this, see below in the text.

[13] Out of a total of 256 appointments: cf. L’impegno CAM per un’equa rappresentanza in arbitrato – Una statistica di genere, loc. ult. cit

[14] Out of a total of 245 appointments: cf. L’impegno CAM per un’equa rappresentanza in arbitrato – Una statistica di genere, loc. ult. cit

[15] Berwin Leghton Paisner (BLP) Survey, Background note, in www.blplaw.com.

[16] Cf. Queen Mary University of London, 2010 International Arbitration Survey: Choices in International Arbitration, http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2010_InternationalArbitrationSurveyReport.pdf: “Open-mindedness and fairness, prior experience of arbitration, quality of awards, availability, knowledge of the applicable law and reputation are the key factors that influence corporations’ choices about arbitrators. 50% of respondents have been disappointed with arbitrator performance. Corporations want greater transparency about arbitrator availability, skills and experience and, to some extent, greater autonomy in the selection of arbitrators. 75% of respondents want to be able to assess arbitrators at the end of a dispute. Of these, 76% would like to report to the arbitration institution (if any). 30% would like to be able to submit publicly available reviews”.

[17] Cf. Queen Mary University of London, 2010 International Arbitration Survey: Choices in International Arbitration, cit., 25: “With respect to the choice of a sole arbitrator or Chair, the most important factor is open-mindedness and fairness (68%), followed by prior experience of arbitration (62%), quality of awards (58%), knowledge of the applicable law (55%) and reputation (54%). Availability also scored highly (51%) and was emphasised by a number of interviewees as an extremely important factor and an issue of increasing concern. It is noteworthy that respondents prefer a pro-active case management style rather than a deferential or reactive style (43% vs. 21%) and an arbitrator that focuses on the commercial disposition rather than the legal determination of disputes (32% vs. 24%). Relevant industry experience and languages are also seen as important (43% and 44% respectively) .The least important factors were gender, religion/faith and nationality. Respondents are also not strongly influenced by the arbitrator’s disposition towards the issues in dispute, their organisation or their external counsel. Interviewees also emphasised the importance of “soft skills”, including the ability to work well with the other members of the panel, the parties and their lawyers and generally adopt a helpful and friendly demeanour. Interviewees said that soft skills can have a positive impact on the efficiency (and hence cost) and the overall experience of conducting an arbitration.”

[18] Queen Mary University of London, 2010 International Arbitration Survey: Choices in International Arbitration, loc. ult. cit.: “We asked corporations whether they routinely gather information about potential arbitrators whom they may appoint to arbitrate potential disputes: 68% do not. A number of interviewees said that this is not cost efficient, particularly in light of the relatively small number of arbitrations in which most companies become involved. Corporate counsel normally rely on their external counsel to provide up-to-date information and a number of arbitrator curricula vitae to choose from when a dispute arises. Reflective of this, 68% of respondents said they do not feel they have enough information to make an informed choice about arbitrators independent of input from external counsel. However, with such input 67% feel able to make an informed choice. However, 67% still seems rather low considering the importance of making a good appointment. It follows that the choice of the arbitrators critically depends on the recommendation and advice of external counsel. This raises a potential issue for the “arbitration system” as a whole. It may be questioned whether the influence of external counsel over arbitrator selection gives those firms disproportionate influence over the participants in the process, making them virtually “gatekeepers”. This may reduce the diversity of the arbitration community and mean that undue importance is placed on arbitrator relationships with law firms. The response to this issue may come from the user side. It was apparent from the questionnaire responses and the interviews that some corporate counsel would like to take a greater role in arbitrator selection and would like to see greater transparency regarding arbitrators while being better able to influence appointment decisions…. (omissis)… Chart 21: Do corporations gather their own information about arbitrators for potential appointment in future disputes? Yes 67% No 25% Don’t know 7%. Chart 22: Do corporations have enough information to make an informed choice about the appointment of arbitrators, with information from external counsel? Yes 28% No 68% Don’t know 3%”.

[19] Rogers, The Vocation of the International Arbitrator, in 20 Am. U. Int “ll.rev.957 (2005); see also GREENWOOD – BAKER, Getting a Better Balance on International Arbitration Tribunals, in Arbitration International 2012 Volume 28: “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… (omissis).. 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”.

[20]LEE, Practice and Predicament: The Nationality of the International Arbitrator (With Survey Results), 31 Fordham Int “l L.J. 603.

[21] NELSON, Results of the Kluwer Arbitration Blog’s first poll, in http://arbitrationblog.kluwerarbitration.com/2013/02/26/results-of-the-kluwer-arbitration-blogs-first-poll/.

[22] NELSON, Results of the Kluwer Arbitration Blog’s first poll, loc. ult. cit.: “No questions here. Across age ranges, women rated the party-appointment system the highest of all factors. For each age range, women scored Party Appointment a full point higher on average than Time Demands and Generational Issues. For men, interestingly, the results were not quite as dramatic: men also found the party appointment system to be the strongest factor affecting women’s under-representation in arbitration, but not by as great a margin over the other two factors. In both graphs, you can see that men and women 55 and older viewed Time Demands as almost a full point less important (in the case of women 55 +) and more than a full point less important (for men 55 +) than their youngest colleagues in the 18-30 age range. Men 55 and older also viewed Generational Issues almost a full point less important than their youngest male colleagues”.

[23] This phenomenon is known as “pipeline leak”, i.e. “pipeline crack”, attributed by various commentators to various factors, including the climate with colleagues in the office, the difficulties in managing dual careers (i.e. to reconcile family and work), the lack of model behaviour and female mentors in the profession and the absence of flexible work options: see –http://www.catalyst.org/publication/132/us-women-in-business, March2012; http://www.pwc.com/en_GX/gx/women-at-pwc/assets/leaking_pipeline.pdf. The Leaking Pipeline: Where are our female leaders? March 2008; .Global Arbitration Review, GAR 100 (4th ed. 2011), available at http://www.globalarbitrationreview.com/_img/_surveys/GAR30_table2011.jpg. Freshfields 7% – 29 partners (2 women): http://www.freshfields.com/practices/dispute/arbitration/people/; Shearman & Sterling 13% – 15 partners (2 women): http://www.shearman.com/practices/detail.aspx?practiceid=e89f53cf-5f6b-4264-84e0-0932dee4781c&disp=lawyers&Industry=False;White & Case 10% 49 partners (5 women): http://www.whitecase.com/attorneys/. Search terms: “Partnerlevel” and “International Arbitration”; WilmerHale 13% 15 partners (2 women): http://www.wilmerhale.com/biographies/biographies/whAttorneySearch.aspx Search terms “Partner” and ” International Arbitration “. Debevoise & Plimpton 18% 11 partners (2 women) Source: Website’s “International Dispute Resolution” section, which is limited to international arbitration. Hogan Lovells 9% 66 partners (6 women): http://www.hoganlovells.com/international-arbitration/. “Our People” King & Spalding 16% 25 partners (4 women): http://www.kslaw.com/practices/International-Arbitration/People. Allen & Overy 11% (There are 104partners listed in “Dispute Resolution” but 9 listed ininternational arbitration “Key People”. Of the 9, 1 is female): http://www.allenovery.com/AOWEB/reasOfExpertise/PeopleList.aspx?contentTypeID=4&contentSubTypeID=19912&aofeID=302&practiceID=314&pno=1&prefLangID=410. Baker & McKenzie 9% (There are 270 partners listed in “Dispute Solution”. To narrow this down, “arbitration” was used as a keyword. This produced 86 results, of which there were 8 women): http://www.bakermckenzie.com/ourpeople/List.aspx?keywordphrase=Arbitration&levels=0e65a907-b3c9-4595-b0c4-a39db5d7b729 Dechert 8% 13 partners (1 woman) Source: http://www.dechert.com/lawyers/list.aspx?Services=eefd727f-31b1-4668-a874-84023622e556.An average of these figures is 11.4%.

[24] Greenwood – Baker, Getting a Better Balance on International Arbitration Tribunals, Arbitration International 2012 Volume 28 No. and their 2015 update (Is the balance getting better?) Arbitration Int. 2015, 413. And this despite the fact that most law students are women, a phenomenon that exists also abroad: cf. Glater, Women Are Close to Being Majority of Law Students, New York Times (Mar. 26, 2001), in http://www.nytimes.com/2001/03/26/business/women-are-close-to-being-majority-of-law-students.html; Law Society of England and Wales, Annual Statistical Report71(1992), in http://www.lawsociety.org.uk/7C46A58E-4688-4C8B-AEDD-A07ABD9F203E/FinalDownload/DownloadId234B57A15A1575C817DF1AFC161A38E/7C46A58E-4688-4C8B-AEDD-A07ABD9F203E/secure/file/167800/e:/teamsite-deployed/documents/templatedata/Publications/Research%20Publications/Documents/trendsasr1992report.pdf; Law Society of England and Wales, Annual Statistical Report 29 (2009), in http://www.lawsociety.org.uk/7C46A58E-4688-4C8B-AEDD-A07ABD9F203E/FinalDownload/DownloadId4457F8EBB575F4FA28DF2306A10DC04/7C46A58E-4688-4C8B-AEDD-A07ABD9F203E/secure/file/183555/e:/teamsite-deployed/documents/templatedata/Publications/Research%20Publications/Documents/asr2009report.pdf; see Arbitration International, Volume 28 Issue 4656; see Law Society of England and Wales, Obstacles and Barriers to the Career Development of Woman Solicitors(March 2010), in http://www.lawsociety.org.uk/secure/file/189203/e:/teamsite-deployed/documents/templatedata/Publications/Research%20Publications/Documents/Female%20lawyers.pdf

[25] Thus in an anonymous, but eloquent post, quoted in the blog of Sophie Nappert OGEMID@mailtalk.ac.uk (Feb. 10, 2012, 10:34am CST).

[26]There are even studies that demonstrate the phenomenon: for example, women and men do not equally assess women and men in relation to their professional skills: Dovidio – Gaertner, Aversive Racism and Selection Decisions: 1989 and 1999, in 11 Psychol. Sci. 315 – 319 (2000); Varian, Why So Slow? The Advancement of Women (MIT Press 1998); Wenneras – Wold, Nepotism and Sexism in Peer Review, in 387 Nature 341–343 (1997); Chesler et al., The Pipeline Still Leaks and More Than You Think: A Status Report on Gender Diversity in Biomedical Engineering, Annals of Biomedical Engineering (2010); Psychol. Sci. 315–319 (2000); Valian, Why So Slow? The Advancement of Women (MIT Press 1998); Wenneras – Wold, Nepotism and Sexism in Peer Review, in 387 Nature 341–343 (1997); Chesler et al., The Pipeline Still Leaks and More Than You Think: A Status Report on Gender Diversity in Biomedical Engineering, Annals of Biomedical Engineering (2010); Paludi – Bauer, Goldberg Revisited: What’s in an Author’s Name, 9 Sex Roles 387–390 (1983); Steinpreis – Anders – Ritzke, The Impact of Gender on the Review of the Curricula Vitae of Job Applicants and Tenure Candidates: A National Empirical Study. Sex Roles, 41 (1999) 509–528; Wenneras- Wold, Nepotism and Sexism in Peer Review, in 387 Nature 341–343 (1997). 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.

[27] Catalyst, The Bottom Line: Connecting Corporate Performance and Gender Diversity (2004),in www.catalyst.org/file/44/the%20bottom%20line%20connecting%20corporate%20performance%20and%20gender%20diversity.pdf is a study affirming that “‘The group of companies with the highest representation of women on their top management teams performed better financially than the group of companies with the lowest representation of women. This finding holds for both measures analysed: Return on Equity (ROE, which is 35.1 percent higher, and Total Return to Shareholders (TRS), which is 34.0 percent higher. “; see also McKinsey & Company, Women Matter: Gender Diversity, A Corporate Performance Driver (2009), in http://www.mckinsey.com/locations/swiss/news_publications/pdf/women_matter_english.pdf, according to which companies with at least three women in the so-called senior management have better performance than those with fully male governance. See Catalyst, Why Diversity Matters, Research Studies 2005-2010, http://integritybridges.com/cms/wp-content/uploads/2011/03/Catalyst-why_Diversity_Matters_11-2-10.pdf.

[28] Haridi, in 15 U. Ewelukwa Ofodile, Africa and International Arbitration from Accommodation and Acceptance to Active Engagement, Transnational Dispute Management (TDM), TDM/Abitral Women special on “Dealing with Diversity in International Arbitration”, July 2015, loc. ult. cit.; Social Capital in the Arbitration Market, EJIL (2014), Vol 25 No. 2, 387, in Carmichael Lemaire, Achieving Gender Diversity for Future Generations in Appointments to International Commercial Arbitration Tribunals – A Focus on Scotland, TDM, July 2015; Rogers, The Vocation of the International Arbitrator, American University International Law Review 20, No. 5 (2005) 957; Demeter – Easteal – Nelson, Gender and International Commercial Arbitrators: Contributions to Sex Discrimination in Appointment, TDM Special, July 2015; Cartwright-Finch, The Performance of Teams in International Arbitration: Gender Diversity and the Female Factor.

[29] See https://www.arbitralwomen.org/ “What is ArbitralWomen? An international non-governmental organization with the primary objective of advancing the interests of women and promoting female practitioners in international dispute resolution. A network of women from diverse backgrounds and legal cultures active in international dispute resolution in any role, including inter alia, arbitrator, mediator, expert, adjudicator, surveyor, facilitator, lawyer, neutral, ombudswoman, forensic consultant. The group has grown to nearly a thousand members from over 40 countries. An effective tool to advance the interests of women in dispute resolution, enhance their involvement and improve their visibility. A source of practitioners from jurisdictions around the world, and a source of referrals for both women and men. An opportunity to meet other women in the field, exchange ideas, mentor new practitioners and celebrate the future of women in international dispute resolution. A source of information on recent developments concerning women in international dispute resolution. An organization enjoying observer status at UNCITRAL Working Group Sessions”.

[30] http://www.arbitrationpledge.com: “The final version of the text of the Pledge is the result of a collaborative effort between global representatives of corporate entities, states, arbitral institutions, arbitration practitioners – both counsel and arbitrators – and academics, drawn together by a Steering Committee. The introductory paragraph of the Pledge sets out two general objectives: to improve the profile and representation of women in arbitration; and to appoint women as arbitrators on an equal opportunity basis. The Steering Committee and those consulted discussed at length the possibility of setting a quota or target in this regard, but ultimately decided to adopt a more flexible standard acceptable to all stakeholders. The standard of “equal opportunity” contemplates that arbitral appointments and other opportunities in the field of arbitration should be based on equal qualifications. The complementary standard of “fair representation” is a flexible standard requiring fact-specific determination. It accounts for the fact that what is considered “fair” will inevitably change depending on the context of the opportunity. For example, “fair representation” in the context of speaking opportunities on conference panels should today result in a higher female representation than arbitrator opportunities in certain high-stakes disputes. The Pledge establishes concrete and actionable steps that the arbitration community can and must take towards achieving these general objectives and the ultimate goal of full parity. It is, however, acknowledged that in some cases, some stakeholders may not reasonably be able to carry out each and every commitment. For this reason, the words “wherever possible” were introduced to preface each of the specific commitments. Finally, it should be noted that those who conceived the Pledge did not intend to ignore or exclude other diversity initiatives. On the contrary, the Steering Committee and those consulted are supportive of all efforts to increase diversity in all its forms in the field of arbitration. The Pledge aims to be a first step in the direction of achieving more equal representation of all under-represented groups in our arbitration community.”

[31] See http://www.arbitrationpledge.com/events and https://www.arbitralwomen.org/Events.

[32] For example, in Saudi Arabia, arbitration law (based on UNCITRAL Model Law) no longer requires the gender requirement to be arbitrators – “experienced, of good character and reputation and full legal capacity”… that is to be a man and Islamic faith” and there was also the recent and rare appointment of a woman as arbitrator: cf. Halmuhim, The first female arbitrator in Saudi Arabia, in http://arbitrationblog.kluwerarbitration.com/2016/08/29/the-first-female-arbitrator-in-saudi-arabia/.

[33] Dolinar-Hikawa, Beyond the Pale; A Proposal to Promote Ethnic Diversity Among International Arbitrators, TDM Special, July 2015.

[34] Greenwood, Could “Blind” Appointments Open our Eyes to the Lack of Diversity in International Arbitration, TDM, July 2015; Paulson, Moral Hazard in International Dispute Resolution, ICSID Review, Volume 25 Issue 2, Fall 2010.

[35] Van Harten, The (Lack of) Women Arbitrators in Investment Treaty Arbitration (November 1, 2011), in FDI Perspectives, February 2012, also available at https://ssrn.com/abstract=2005336: pen and merit-based process. In fact, this method seems to have at least one weak point, that is to risk making appointments only on the basis of previous experience as an arbitrator: thus perpetuating the choice always among the usual names.

[36]Rogers, The Key to Unlocking the Arbitrator Diversity Paradox?: Arbitrator Intelligence, in Kluwer Arbitration Blog, December 27, 2017