On 20 September 2022, the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (the “Task Force”) launched the 2022 Update of its Report on Gender Diversity in Arbitral Appointments and Proceedings (the “2022 Report”) at the International Council for Commercial Arbitration (“ICCA”) in Edinburgh.  

The first report (the “2020 Report”), published in July 2020, compiled and analysed a significant number of statistics on the appointment of female arbitrators, and also identified opportunities and best practices to promote and improve diversity throughout the international arbitration community, with the aim of advancing gender inclusion and equality in the field of arbitration.

The 2022 Report builds on these foundations. It includes more data, information, anecdotes, analysis and recommendations and, most importantly, demonstrates measurable progress in the representation and inclusion of women in international arbitration. It also collates the opportunities which exist to take positive and proactive action to address the gender inequality which continues to pervade the international arbitration community.

The Task Force and their input into the 2022 Report

The Task Force was established in 2019 by 17 international arbitral institutions, law firms and diversity initiatives, in order to gather statistics and make recommendations with the aim of promoting and improving diversity in the international arbitration community.

Since then, the Task Force has sought to reinforce and strengthen diversity and has expanded to include 32 individuals representing 28 prominent institutions, including many of the leading international arbitration institutions and gender diversity initiatives.

The 2022 Report analyses data provided by 14 arbitration institutions that are members of the Task Force, including: the International Court of Arbitration of the International Chamber of Commerce (“ICC”), the International Centre for Dispute Resolution (“ICDR”) and the London Court of International Arbitration (“LCIA”). Input is also provided by other Task Force members from a wide range of organisations within the international arbitration community, including: the American Bar Association, ArbitralWomen, and Twenty Essex Chambers.

2022 Report – key takeaways

• The lack of diversity, including gender diversity, amongst international arbitrators has been a longstanding and persistent feature of international arbitration. A study of 102 investment treaty awards rendered before 2007 found that “women were a tiny fraction of arbitrators…five women (3.5%) in the population of 145 investment treaty arbitrators” and that “there were no tribunals with two or more women”. [1] However, there has been significant improvement in this respect in recent years (although there is a significant way to go to achieve gender parity):
  • The proportion of women appointed as arbitrators nearly doubled between 2015 and 2021, from 12.6% to 26.1%.
  • Institutions have played a significant role in driving this trend. Between 2015 to 2020 at least a quarter of all appointments by arbitral institutions have been women, increasing from 24.9% in 2015 to 37.9% in 2021.
  • For co-arbitrator appointments the proportion of women appointed nearly tripled, from 10.1% in 2015 to 27.1% in 2021.
  • Some arbitral institutions are more advanced than others when it comes to promoting and delivering on gender equality; in 2021, nearly half of all arbitrators appointed by the LCIA were women (47.4%), while 31.6% of arbitrators across the 449 arbitrations administered by the LCIA in 2021 were women.
• Aside from the moral and social imperatives of addressing gender discrimination, there are numerous practical advantages in doing so:
  • The pool of qualified arbitrator candidates is greatly expanded when women are included, and users of arbitration may find that a woman is the person most suited to the role of arbitrator in a particular case;
  • Research suggests that more diverse tribunals make better decisions which can lead to more streamlined proceedings;
  • Diversity is crucial to ensuring the legitimacy of international dispute resolution (including international arbitration), particularly in cases where public interest issues arise; and
  • International arbitration exists to facilitate investment and economic development around the world and should reflect global commitments to promote sustainable development, including gender equality, and address gender discrimination.
• There are a number of significant barriers to achieving greater inclusion of female arbitrators on tribunals, including:
  • “Leaks in the pipelines” of qualified female arbitral candidates, such as the lower retention figures of women in private practice and the promotion of fewer women to the most senior positions in the profession;
  • The lack of available opportunities (or the awareness of opportunities) for women to gain relevant experience and promote their visibility and reputation amongst users of international arbitration;
  • The impact of unconscious bias on female lawyers’ careers, including information barriers, which mean those in the position of appointing arbitrators are unaware of available talent;
  • Possibly linked with the above, the lack of women listed in arbitrator directories – for example, in the Chambers & Partners’ Most In Demand Arbitrators ranking for Europe in 2021, only two women were listed in “Band 1” out of 22 individuals, and only three women were listed in “Band 2” out of 18 individuals;
  • the lack of flexible working arrangements, coupled with social structures which promote/reinforce stereotypical gender-roles.

2022 Report recommendations for promoting gender diversity

The 2022 Report also includes the Task Force’s detailed recommendations for tackling the continuing lack of gender diversity in arbitral tribunals, and as such acts as a road map for positive change, with specific advice aimed at:

a) those who nominate or appoint arbitrators;

b) in-house counsel and litigation funders;

c) women who are qualified arbitrator candidates;

d) women who would like to become qualified arbitrator candidates;

e) employers of future arbitrators;

f) those who publish information about arbitrators and arbitration; and

g) conference organisers.

Final thoughts

While great strides have been made in improving gender diversity in the international arbitration community, there is still considerable ground which needs to be covered to ensure true gender parity. The 2022 Report highlights this fact but, more than that, can also be used as a roadmap for those who are committed to improving gender diversity in international arbitration. There are numerous opportunities for the promotion of women in arbitration; these range from minor changes in our day-to-day actions, to the implementation of broader initiatives which give women an equal platform from which to thrive, and it is up to us as individuals, as well as the organisations we represent, to do all we can to ensure we do so.

[1] Susan D. Franck, et al., The Diversity Challenge: Exploring the “Invisible College” of International Arbitration, 53 COLUM. J. TRANSNAT’L L. 429, p. 439 (2015) (citing Susan D. Franck, INVESTMENT TREATY ARBITRATION: MYTHS, REALITIES AND COSTS (2015))

For more insights on the ICCA’s Report or arbitration more generally, get in touch with Rob Griffiths, Lottie Tanner and Ross Keeble.

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