Q&A discussion: diversity in international arbitration
Dispute Resolution Associate Maria Jewsbury is joined by leading arbitration practitioners Philippa Charles (Arbitrator, Twenty Essex), Jamie Harrison (Deputy Director General, LCIA), and Emilia Onyema (Independent Arbitrator and Professor in International Commercial Law, SOAS) to discuss diversity in international arbitration, its importance in the context of arbitral appointments, why it is in the parties' interests, and what can be done to improve it.
Q. Maria: It is a unique feature of arbitration that the parties can choose their tribunal, which means they can have a direct hand in promoting diversity. Why is it in the parties' interests to have diverse tribunals?
Emilia: As a starting point, I would refer you to the ICCA Report on Gender Diversity in Arbitral Appointments and Proceedings, which pulls together various research showing why diversity is important – it is almost a non-starter. Why do we need diversity in any of the roles or spaces that we occupy? Because we are diverse, and each demographic brings something into that conversation. We have diverse voices and experiences, which enriches the output and improves the value of the decision.
Philippa: Rightly or wrongly, I think there is a perception from the client perspective that the "known" names are a safe and reliable choice. There is a perception that by prioritising the selection of diverse candidates over perhaps a "usual suspect", parties are in some way trading off against the quality of the outcome. Actually, I think the converse is true. It can be of greater benefit to the parties; there are experiences, sensitivities, and familiarities which a diverse candidate can bring to bear. If you are used to being the only person in a room who has your characteristics, you are used to assessing the dynamics in a more nuanced way, and you then bring that to the analysis of the evidence and witnesses. So, I do think there is genuine benefit to clients in choosing diverse arbitrators.
"There is a perception that by prioritising the selection of diverse candidates over perhaps a "usual suspect", parties are in some way trading off against the quality of the outcome. Actually, I think the converse is true."
Jamie Harrison (Deputy Director General, LCIA)
"The landscape of international arbitration is gradually changing; we are almost becoming homogeneous."
Maria: I agree, particularly where we have identified that a diverse tribunal can be of great benefit to the parties themselves.
Philippa: Speaking from the perspective of someone who has recently been in private practice, I think law firms can be incredibly influential in encouraging diverse nominees. On the institutional perspective, I sit on the ICC UK Nominations Committee, and it is part of the mission statement to try to give people a first appointment or to improve the CV of someone who may not have sat often, which is that “chicken and egg problem” that often prevents more diverse candidates from getting the experience they need to build their reputation.
Emilia: I agree with Jamie and Philippa, and I recognise that the institutions are doing a fantastic job. Most of my initial tribunal appointments were through institutions. At the same time, it’s important to recognise that the institutions make limited appointments compared to party nominations. So, if you look at it in that context the institutions are doing well.
Jamie: If you look at the statistics, the institutions are all similar on the number of first-time appointments. It’s not as good as it could be, but it is quite healthy. I think there is an attempt to break the cycle and it’s gaining momentum.
Q. Maria: Perhaps it is not enough to simply present clients with a list of names. Instead, should we go further and “put in a word” where you have met someone, seen someone speak, or liked the way someone presented themselves?
Emilia: Yes, that resonates with something I said at the ICCA Conference last year which is, if you have had a good experience then shout about it.
Philippa: That is absolutely right. We should also encourage people; if they are thinking about starting to take appointments or have their first appointment, to try not to be intimidated by the situation in which you find yourself. You have a voice within the tribunal, and you must be prepared to use it. If you are advising on nominations as party counsel, and if your client is saying "the other side have appointed an ex-judge, so I need to do the same", the answer is, not necessarily. Because, if it is a case that has nothing to do with their prior experience other than their judicial role, then you can make a good case for appointing somebody different who is steeped in knowledge of the business area, the geography, or whatever the key factors are, which you will know as the instructing solicitors. You may even consider a non-lawyer who is going to carry great weight within the tribunal discussions because of their specific knowledge and expertise. This should be promoted as one of the reasons why looking at diverse candidates is in the clients' interests because that is where we are going to move the dial on diversity.
Q. Maria: Could you share an example of something you have seen done well to improve diversity?
Jamie: There is real benefit in concerted action, which we have seen in the context of gender diversity initiatives such as the ERA Pledge. I am now speaking from an organisation that has a female President, a female Director General, and many female directors and vice-presidents. There is benefit in concerted action and it is time that we pivoted towards other areas of diversity that we should be embracing.
Philippa: I would give a shout out to the ICC because, much like the LCIA, it has made a concrete effort to appoint more diverse candidates, in particular to the Court of Arbitration. By progressing women and other diverse candidates, the ICC Court has led the way in saying "this can be done if you try". It requires a degree of goodwill to look for the "non-obvious" person, who is nevertheless a good choice. It's a good example of an initiative at a global level and should be influential in how individual practitioners approach it.
Emilia: I would say the pipeline and making sure we look after the people coming in behind us who will take over from us. I would like to mention the Vis Moot. Referencing what I said earlier about diversity of thought, the Vis Moot is a global competition open to universities across the world. This year, there were 14 universities competing from Sub-Saharan Africa. Often people think funding is the challenge there, but often the problem is getting visas to attend the moots. What this tells us is that environment, politics, economics, the social fabric, etc., all impact on our little world of international arbitration and how we can open it up and make it truly global. There is light at the end of the tunnel, but we need to keep going.
Jamie: These points are all particularly important aspects of international arbitration. What we are trying to market is a process which is responsive to the circumstances and the issues that the parties are trying to resolve, in a way that other processes are not. When promoting arbitration, it's exactly that isn't it? The fact you are more likely to have people appointed to resolve your dispute who understand the subtleties facing the parties in an arbitration process than you might in a court setting. So, leveraging that benefit is a fundamental part of what we do.
Emilia: The landscape of international arbitration is gradually changing; we are almost becoming homogeneous. Again, the team has suggested making this quote featured in some way If you think about it, most of our international arbitrators (as arbitrators or counsel) are alike - forget gender, race, etc., arbitrators have all typically gone to a university in the Northern Hemisphere. That is much more dangerous because we are tunnel-visioned into seeing issues in the same way. For instance, if Philippa, Jamie, and I have all had similar training, we will all think in the same way. The question then becomes, can international arbitration accommodate those who do not have those backgrounds and have been influenced by different environmental factors?
Q. Maria: We also hear about the importance and benefit of diversity of thought and Emilia you have previously spoken about this. What are your views?
Q. Maria: Can arbitral institutions assist in promoting diversity? The Queen Mary International Arbitration Survey (2021)notes that when respondents were asked to identify which initiatives most encouraged diversity for arbitral appointments, the top answer (59%) was, appointing authorities and institutions adopting an express policy of suggesting and appointing diverse candidates as arbitrators. Jamie, what is your perspective?
Jamie: It is a very fair question. Most institutions, and I think that the LCIA has led the way, have focused on gender diversity. We are overdue a focus on diversity more broadly, but that is not to say we should stop looking at gender. Taking gender diversity, as that is an area on which we have good data, the LCIA has been very proactive in promoting the interests of women as far as arbitral appointments are concerned. It is often the parties, or the clients, who lag behind. The LCIA's Annual Report (2021) shows that 47% of arbitral appointments by the LCIA Court are women, so we have almost achieved gender parity there. However, where co-arbitrators have a hand in appointments, this figure reduces to 33%. However, worse still, are party appointments, where only 16% of nominations are women. So, yes, the institutions have a role to play, where they can, but it is often co-arbitrators or parties who need to come along for the ride. Instructing solicitors have the client relationships, and so there is also a responsibility on them to put forward a more diverse selection of potential nominees too.
Philippa Charles (Arbitrator, Twenty Essex)
"...the institutions have a role to play, where they can, but it is often co-arbitrators or parties who need to come along for the ride."