Equal Representation in Arbitration Pledge – What’s next?
For arbitration practitioners the word pledge has acquired a new meaning, beyond any
pecuniary associations to the term. Gender, diversity, (im)balance come to mind today
when we someone around us mentions the “Pledge.” The Pledge symbolizes the arbitration
community’s promise to diversify the arbitrator pool, crystalized in the signature that
thousands of us put on a paper, as a sign that we would keep that promise.
What has happened since the Pledge?
To date, there are 1568 signatories of the Pledge, including LCIA and SCC, who were among
the first arbitral institutions to join forces with this initiative. Institutions are actively
working on keeping the promise they made when signing the Pledge. But, what else can be
done, and who else should be doing something?
As a starting point, statistics on arbitrator appointments can provide some guidance.
During 2015, a total of 449 appointments were made at the LCIA. Parties and co-arbitrators
were responsible for 56% (254) of these appointments with LCIA appointing the remaining
43% (195) of the candidates (“LCIA-appointments”). The proportions of appointments are
similar at the SCC, where a total of 279 appointments were made during 2015. 64% (178)
of the candidates were selected by the parties and by the co-arbitrators and SCC was
responsible for 36% (101) of the appointments (“SCC-appointments”).
What the numbers reveal is that institutions are those who most frequently appoint
women, while parties and co-arbitrators at the LCIA and SCC prefer, by large, selecting
male candidates. In 2015, 28% (55) of LCIA-appointments and 27% (27) of SCCappointments were of female candidates, whereas at the LCIA, 7% (14) of partyappointments and 4% (2) of co-arbitrator appointments fell on women. The trend was no
different at the SCC, with parties selecting women in 7% (11) and co-arbitrators in 10% (1)
of their appointments. In short, at the LCIA a total of 16% (71) of candidates appointed
were women, with the LCIA making 77% (55) of those appointments; at the SCC, a total of
14% of the candidates appointed were women, with the SCC selecting 69% (27) of them.
Where do we go from here?
On the evening of 4 October and 23 November 2016, LCIA and SCC hosted dinners in
London and Stockholm, respectively, to discuss concrete actions to implement the promise
made in the Pledge and achieve gender balance in arbitrator appointments. A selected, yet
diverse group of female and male arbitration practitioners were invited to the dinners. The
discussions in London and Stockholm were moderated by Annette Magnusson, Secretary
General of the SCC and by Jacomijn van Haersolte-van Hof, Director General of the LCIA,
respectively.
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Some of the concrete actions proposed by the participants include:
 Clients want the best candidate. Counsel should make sure they get it. Some
companies have inclusive policies and require the same standard from the firms
that they engage to represent their interests. As in house counsel, raise the issue
of diversity with the legal team engaged and show firms that gender balance is a
concern for the client, who expects to see more female appointments. Clients
should ask the firm advising them to include female candidates in the lists
presented to them.
 The Pledge puts in the spotlight our unconscious bias. When confronted with an
appointment, counsel can send different profiles to the client, without disclosing
gender, to encourage that the objective criteria prevail over unconscious bias. This
is a practical way of dealing with common misperceptions, such as that men make
better decision-makers than women.
 Retain female talent. The percentage of women and men graduating from law
school is almost equal. The pool of appointees is composed mostly of partners.
There are considerably less female partners to appoint than men. Firms need to
make sure that more women get to the top. Firms should take active measures to
retain female talent, by for example, putting internal targets to reach a certain
percentage of female partners. Firms should also encourage women to be more
visible, by sending both men and women to conferences for networking and
speaking engagements.
 Women can do more for women. Whenever there is a conflict or an issue of
unavailability, and an appointment or a speaking engagement cannot be accepted,
suggest an alternative women candidate equally qualified. Also, participating in
mentorship programs is a way to guide our female colleagues.
 Visibility matters.
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It takes time to create an international profile. It is important that women,
early on in their careers, understand the value of being visible by writing
articles, going to conferences and networking.
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It is important that women’s profiles in lists and databases are presented
in the same manner as those of men, so that women do not downplay
their own achievements. Studies show that men and women are assessed
differently. Men on the basis of their potential and women on their basis
of their achievements.
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Institutions and those organizing events should implement an equal
representation policy, by making an active effort to have both diversified
speakers and a diversified audience.
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 Create diversity-minded databases, by reaching out to those who hold databases
and make sure that women are represented.
There was a common agreement between the participants that since the launch of the
Pledge in May 2016, things have changed and the Pledge has raised awareness. But, while
the Pledge singles out gender imbalance, there is a desire to advocate for diversity in the
bigger sense: age, culture, gender, etc. The Pledge is a first step towards equal
representation in arbitrator appointments, but there is more to it long-term, for all sorts of
diversity.