The Diversity and Inclusion in International Arbitration half-day conference presented by the Institute for Transnational Arbitration (ITA) Academic Council, and the American Society of International Law (ASIL) took place on April 4, 2018. This conference was the first of its kind to examine the legitimacy of international arbitration in the context of the lack of diversity of practitioners selected to participate in international arbitration proceedings. Does the current selection of practitioners reflect the wide range of regional practices; and do they reflect the pool of practitioners? If not, what are some practical and actionable steps those who participate can take, in this very specialized field, within the larger field of global commerce?
As noted by the introductory speakers, Abby Cohen Smutny (Chair, ITA Advisory Board, White & Case LLP, Washington, D.C. and Lucinda A. Low (President, ASIL, Steptoe & Johnson LLP, Washington, D.C.), that this conference was taking place was itself an important step, as it moves the discussion of this issue beyond anecdotal concerns. The approach of this conference was to first have the keynote speaker outline the issues; then to review academic scholarly work on this topic in order to understand why and how the lack of diversity is a problem; and finally, but importantly, develop some practical solutions.
The first question of why diversity is important was addressed by the keynote speaker Lucy F. Reed (Professor and Director, Centre for International Law, National University of Singapore, Singapore). The answer at its most simple is because the world of international arbitration is global in its application and the world is diverse. The second question is whether there is diversity; and again, the answer simply put is no. Alternatively, a more nuanced answer to the same question is not as much as there should be. To understand the lack of diversity in the larger context, what is the equation that leads to this result of low diversity?
The equation in this case is: caution + habit + bias = low diversity.
“Caution,” in this context, stems from the nature of international arbitration cases. International arbitration cases are generally of some magnitude in terms of the amounts in controversy potentially at stake, cannot be appealed, and are relatively easily and quickly enforceable. Parties involved are reasonable in wanting to entrust the arbitral process to those with experience. Part of the lack of experienced practitioners stems from the history of international arbitration. Originally the field was not well developed or even seen as a real field due to the view that this field was both very risky and soft (i.e. the law was governed less by the application of law and more by industry practices and commercial considerations–coupled without any surety of success). There were few who were practicing in this field. Historically, the pool was small and generally was made up of white, Western men. This is important, because it leads into the next element in the equation, which is “Habit”.
As matter of habit, one tends to select those they already know and who are a reflection of themselves. Times have changed for the field of international arbitration. Bilateral Investment Treaties (BITs) have become more common, and specialized tribunals are not so unheard of (e.g., the Iran-United States Claims Tribunal). In addition, the number of women who have entered the legal field has changed, yet this fact is not reflected in the selection of arbitrators. One step that has been taken to address lack of diversity is the Equal Representation in Arbitration (ERA) Pledge. One of the elements of the ERA pledge is to take an extra five minutes when thinking of that initial list of potential arbitrators – as there are women and non-European practitioners with solid experience, but who may not be as well known and who could be added to the list of names. Of course, just a name included in a list does not equal diversity.
Another step taken to address lack of diversity being taken by the International Chamber of Commerce (ICC) is to release of all the names of the arbitrators involved in a proceeding, with the identifying information about the case removed. This is enough information to get an overview of the expertise of those arbitrators involved in the proceedings. This has resulted in slightly better numbers of women when an institute chooses an arbitrator. Nonetheless, when a party makes a choice of an arbitrator, women are still underrepresented. However, the pledge, the five-minute rule, and the release of names are some steps that help remove the issue of habit that is a hindrance without a point.
The last element in the equation is “Bias”. Biases can be both conscious and unconscious. Biases stem from what is familiar, especially when it is unconscious, so there is a stronger likelihood of selecting those who are most like oneself. In international arbitration proceedings, many in the position of making the key choices tend to be white Western men. Avoiding these biases of selecting those most like oneself requires affirmative research about the pool of arbitrators and public information more readily available about them.
A final point concerns the challenges of the field, as a whole. There can often be many qualified applicants for few positions. Newcomers need to know that persistence, patience, and realistic expectations are key to opportunities in this field. She concluded with the counter equation “Inclusion + Patience + Persistence = Better diversity.”
Next, Conference Commentator, Gonzalo Flores (Deputy Secretary-General, International Centre for Settlement of Investment Disputes (ICSID), Washington, D.C.), started with some history of the lack of women in international arbitration. Initially there was the lack of women in the field of law, then the lack of discussion of gender issues, and then a lack of transparency of the number of women in international arbitration. Today, the discussion has expanded to include a combination of issues such as the inclusion of women, newcomers, and non-Anglo/Europeans with solid experience in international arbitration. One of the steps to address this issue is an example from the International Centre for Settlement of Investment Disputes (ICSID). ICSID has created a database that allows one to search arbitrators, conciliators, and ad hoc committee members. ICSID also publishes the statistics of caseloads for each year. From these reports, it is now easier to track how much the situation is changing.
Come back tomorrow for Part II of our recap of the ITA-ASIL Diversity and Inclusion in International Arbitration Conference.