European Disputes
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The increase in attention globally on diversity issues has not overlooked the legal profession, including the field of international arbitration. The argument for diverse pools of arbitrators, across factors such as gender, ethnicity and age (among others), would help to ensure that arbitrators, and the arbitral process, reflect the businesses and communities that they represent. This is vital given the increasing range of parties and types of disputes that are referred to arbitral bodies across the world. Moreover, increased diversity would only encourage more innovation and efficiency, enabling parties to choose from the best practitioners available.

Despite the benefits of diversity, the pool of potential arbitrators tends to be small, relatively homogenous and difficult to permeate. There are two broad arguments to explain this. The first is that the issue is one of supply, given that arbitrators tend to be retired judges, barristers, or solicitors, professions that are themselves often criticized for not being the most diverse of groups. The second broad explanation is that the issue is one of demand. For example, the number of repeat appointments of arbitrators is quite high. In 2018, just 13% of arbitrator appointments by the LCIA were of candidates not previously appointed in arbitrations administered by the LCIA, and in 2019 that figure increased just marginally to 19%. Moreover, due to the confidential nature of arbitration, there is a lack of public information about arbitrators meaning that parties must rely on lists in legal directories and compiled by arbitral institutions, speculative searches or recommendations which tend not to include a variety of candidates, even leaving aside the role that unconscious bias may play. For instance, as of January 2020, Chambers & Partners’ list of the “Most In Demand Arbitrators – Global-wide” for international arbitration included just three women out of a list of 29 in its Band 1 rankings.

In reality, these factors probably serve to reinforce each other: repeated arbitrator appointments tend to reduce the pool of experienced arbitrators from which to choose.

Despite this, there have been a number of initiatives aimed at increasing diversity. These include the ‘Equal Representation in Arbitration Pledge,’ which was developed by members of the arbitration community in 2015 with a view to both improving the profile and representation of women in arbitration and to appoint women as arbitrators on an equal opportunity basis. While not including any specific quotas or targets, nearly 4,000 signatories to the pledge undertake to take steps reasonably available to them to ensure wherever possible to, amongst other things, appoint a fair representation of female arbitrators, publish gender statistics for appointments and mentor women. The African Promise, modeled on this pledge, was launched in September 2019 with similar aims in relation to African arbitrators.

A number of institutional and not-for-profit professional networks have also been established to promote diversity in a number of aspects, including the Alliance for Equality in Dispute Resolution which advocates for increased diversity in the profession. The International Chamber of Commerce (ICC) has also sought to promote younger practitioners through the development of the Young Arbitrators Forum which is open to those under the age of 40.

Finally, there has been a proliferation in research tools and databases, developed to increase the quality of information on arbitrators, some of which are specifically focussed on diversity. Examples include the “ArbitralWomen” database, which offers a female-focused search tool, and “The New List – Arbitrators of African Descent” which was published in September 2020, containing over 120 arbitrators of African descent.

While these initiatives are promising and progress has been made, the challenge for lasting change continues. In 2019, ICC statistics revealed that just 38% of arbitrators were non-European, 34% were below the age of 50, and 21% were females – and this does not account for intersectional problems that also arise. The tools mentioned above need to be emphasised, strengthened and broadened among stakeholders so that all parties can meaningfully engage and play their part in promoting diversity in arbitration.