On 10 January 2017, we released the results of our annual International Arbitration survey. This year’s survey focused on the issue of diversity on arbitral tribunals. We asked arbitrators, corporate counsel, external lawyers, users of arbitration and those working at arbitral institutions for their views on a number of issues relating to diversity. We had 122 responses to the survey with respondents from Asia, Australasia, Africa, Europe, the Middle East, North America, Latin America and the Caribbean. The results of the survey confirm that there is a clear drive to improve diversity, both in respect of gender and ethnicity, and demonstrate a recognition that everyone involved in the arbitration process has a part to play.
A perceived lack of diversity among arbitrators was confirmed by the available statistics. For example, ICC data on arbitral appointments for 2016 shows that, to November 2016, only 20% of arbitrators appointed were women. The arbitration community has taken some steps to address diversity issues. There is increased transparency about the number of women appointed as arbitrators and there are various initiatives underway to encourage the appointment of more women. However, there are fewer initiatives in relation to other under-represented groups and many feel that there is still some way to go if we are to really bring about change.
The survey looked at how important issues of gender and ethnicity/national identity were to the respondents when selecting an arbitrator and whether statistics on diversity were useful in selecting an arbitral institution. We were also interested in finding out whether respondents would welcome more information about new and less well-known arbitrators and if they would welcome the opportunity to provide feedback on an arbitrator at the end of a case. We also wanted to find out where respondents thought the responsibility for initiating change should rest – with arbitral institutions, with counsel or with the parties.
The survey confirmed that diversity issues are very much on the agenda in international arbitration. 80% of respondents thought that tribunals contained too many white arbitrators, 84% thought that there were too many men, and 64% felt that there were too many arbitrators from Western Europe or North America. On the assumption that all potential candidates have the necessary level of expertise and experience, 50% of respondents thought it was desirable to have a gender balance on arbitral tribunals and 54% thought it was desirable that the tribunal should come from a diverse range of ethnic and national backgrounds.
A substantial majority of respondents (70%) thought that it was desirable for arbitral institutions to publish statistics on diversity, though only 28% said that the content of the statistics would influence their choice of arbitral institution in the future.
An overwhelming 92% of respondents said that they would welcome more information about new and less well-known candidates. 81% of respondents said that they would welcome the opportunity to provide feedback about arbitrator performance at the end of a case, though only 36% thought that such information should be made publicly available.
As regards responsibility for change, the clear message from respondents was that everyone has a part to play in improving diversity on arbitral tribunals. 78% of respondents thought that arbitral institutions have a role to play, 65% thought that counsel for the parties also had an important role and 60% thought that arbitrators had a part to play.
Other findings included the following:
- 56% of respondents said that they already consider diversity when drawing up a short list of potential candidates for appointment as arbitrators.
- 47% said that they were likely to consider diversity more often in the future than they had in the past.
- 6% of respondents believed that they had lost appointments as a result of their ethnicity.
- 23% of respondents believed that they had lost appointments as a result of their gender.
- 28% of respondents believed that they had lost appointments because they were considered too young.
London-based International Arbitration partner, Carol Mulcahy, who spearheaded the survey, commented: “Diversity is to be applauded not just as a goal in itself but because it goes hand in hand with choice. Everyone involved in the practice of international arbitration has a part to play. Institutions undoubtedly have a vital role but arbitrators and law firms should also “step up” and confront the issue when involved in discussions on arbitrator nomination.”