It’s A Numbers Game: Diversity And Inclusion In International Dispute Resolution

As a largely private mechanism for dispute resolution, international commercial arbitration has been shielded from scrutiny in relation to the composition of its arbitral tribunals. For years, the arbitration institutions did not publish data in relation to the gender, nationality or race of arbitrators appointed to hear disputes. However, this situation is changing.

The effect of the Pledge

Launched earlier this year the Equal Representation in Arbitration Pledge was the first global initiative to address the under-representation of women in international arbitration which gained traction within the community. The Pledge initiative originated from a suggestion made by the Director General of the London Court of International Arbitration, Jacomijn van Haersolte-van Hof in 2014. Since April 2015, the initiative has been sponsored by a number of founders, mainly by Sylvia Noury, a Partner in the Freshfields Bruckhaus Deringer’s international arbitration group in London.

A cornerstone of the Pledge is the commitment to capture and publish data relating to the appointment of female arbitrators. The baseline statistics collated immediately prior to the launch of the Pledge show an improvement in the representation of women, although some of this ‘improvement’ may well be attributable to better access to information.

Having reviewed all the available data, back in 2012, what I termed my “best estimate” of the percentage of women on international arbitration tribunals was 6%, subsequently I revised that figure to 10% in 2015, and in light of the recent data (and recognizing the efforts of the institutions in recording the information), this should be revised again, to around 15%. If nothing else is achieved through the existence of the Pledge, the change in attitudes to capturing the data in international arbitration institutions who are signatories to the Pledge has been remarkable.

This is not just a women’s issue

Other available data in relation to the appointment of non-stereotypical arbitrator candidates supports the conclusion that international arbitration still suffers from an over-representation of Anglo-European arbitrators and an under-representation of arbitrators from developing countries. The International Centre for the Settlement of Investment Disputes (ICSID) appointed 119 arbitrators from over 80 different countries in  its cases in the 2016 fiscal year.

Out of the arbitrators, conciliators, and ad hoc committee members appointed by parties and by ICSID, 45% were from Western Europe and 61% were from Western Europe or North America. Whereas 36% were from South America, Central America and the Caribbean, the Middle East and North Africa, Sub-Saharan Africa, and South and East Asia and the Pacific.

That number goes down to less than 18% when the South and East Asia and the Pacific group of arbitrators is excluded. In relation to party appointed arbitrators only, 67% of the arbitrators were from Western Europe or North America, while 49% of them were from Western Europe.

Comparing these numbers to the geographic regions the parties to ICSID cases are from is instructive. While 22% of parties were from Eastern Europe and Central Asia, only a