***Vidhi Pramesh Parikh
Arbitration is a method of alternate dispute resolution (“ADR”) where the parties agree to appoint one or more arbitrators who make an unbiased decision concerning the dispute raised and the decision made by these arbitrators is binding on the parties and also admissible in the court of law. By choosing arbitration, the parties choose an alternative way to resolve the disputes instead of litigating in courts.
The use of ADR methods has spiked during the last few years since parties get to avoid time-consuming and tedious procedures and opt for an easier procedure. An arbitrator is a neutral professional who is usually appointed by the parties to decide on the disputes or the differences between the parties. Gender inequality has existed for ages in every field that one comes across, including the field of law.
RISE IN THE GENDER DISPARITY
The discrimination between men and women in the workplace within any profession continues to persist. Male arbitrators outnumber female arbitrators by a huge margin. For instance, in 2017, Mumbai had 31 arbitrators out of which only 2 were women arbitrators - the difference is huge. A 2012 survey by the ABA Women Dispute Resolution (WIDR) Committee showed that only 18% of all the arbitrators included were women.
Parties always tend to look out for seasoned, experienced, and well-known arbitrators, which makes it difficult for the new lawyers to make a mark. One of the key factors for the lack of successful woman arbitrators is generally called the “pipeline leak”. Pipeline here means an exemplary resume that one should build to become a successful arbitrator with the help of legal education, experience, and various associations with other senior arbitrators or senior judges as arbitrators are chosen from a very limited pool of professionals. In most international arbitration cases, the arbitrators are chosen from a limited pool of professionals who are most likely already at a higher level - senior lawyers, judges, partners or the like. This unconscious or implicit bias to choose the existing established arbitrators (mostly male) could be considered as a silent killer of diversity in the legal profession. It is said to be one of the most significant reasons for the disparity between male and female representation on international arbitral tribunals.
Men play an important role in achieving gender equality and promoting activities to empower women. The change in gender diversity has to be brought about at the grassroots level. In May 2016, a huge number of people came together to sign an initiative that aimed to increase the number of women arbitrators in the fraternity. According to the research undertaken by Lucy Greenwood, a woman arbitrator, the institutional appointments of female arbitrators increased from 12% in 2015 to 17% in 2016. The 2019 report of the Cross Institutional Task Force on Gender Diversity in Arbitral Appointment showed that 34% of institutional appointments were female and 21.5% of appointments by the co-arbitrators were female, whereas only 13.9% of the party appointments were female.
John Bickerman, the former Chair of the American Bar Association Section of Dispute Resolution, highlighted the problem of gender discrimination in 2006 and remarked that “in terms of the big cases, we see the same names all the time, and they are the same very accomplished, well-established, high-profile white men that have been doing this for the past ten or fifteen years”. William Tetley, a well-known lawyer from Canada, shared an experience where how this ‘men’s private club’ played a huge role in his career. He mentioned how without any prior experience or knowledge about the Arbitration Rules of the International Chamber of Commerce (ICC), he was asked by his acquaintance to be the judge on his case. Neither of the other arbitrators knew about his lack of experience or expertise but they instead praised his work, which further proves that how white men or men, in general, have had the upper hand in this field of work for decades.
Meanwhile, Ms. Julia Kenny, a partner at Palladium Legal (a reputed law firm both in India and UK), has served as an international arbitrator for over a decade. She has worked for clients from the UAE, Canada, South Africa, and more. She has even served as a lead arbitrator in disputes under the UNICITRAL, International Chamber of Commerce (ICC), the Stockholm Chamber of Commerce (SCC), and various other arbitration forums. She serves as a notable example of the success that women can experience as arbitrators, whether on a national level or an international level if given space and opportunity to grow.
While gender discrimination between white men and women is a prevalent issue, people of colour go through even greater discrimination. The American Arbitration Association boasts that 25% of their total arbitrators are both women and people of colour, but the problem is that the other 75% of them are white males. In a profession where there is discrimination between men and women, women of colour have faced and shall further face an increasing number of hurdles due to their colour and ethnicity.
It is imperative that a fair chance should be given to every individual. One should not be discriminated against or be given an undue advantage over others, whether due to nepotism or in any other unfair manner. The lack of women arbitrators on a global scale demotivates the upcoming generation from pursuing arbitration as a career. It is understandable that people would lose faith in meritocracy i.e., achieving something due to their merits and therefore lose the incentive to work diligently. Having no mentors shall become a regular practice to guide the minority groups in the profession. Such a vicious circle can be brought to an end only when gender diversity becomes a reality instead of an illusion.
Today, there are various institutes, law firms, and practising lawyers who have introduced initiatives to bridge the gender disparity observed and to bring about gender diversity on an international level. Presently, there has been a hike in the number of cases that are referred to arbitration than litigation due to the various advantages that arbitration has. The International Chamber of Commerce posted its highest number of cases since 2016 with 946 new arbitration cases. In 2018, SCC had appointed 28% of its arbitrators as women which increased to 32% in the year 2019. On the other hand, the International Chamber of Commerce (ICC) had 18% representation by women in the year 2018 which increased to 21% in the year 2019.
Recently, in January 2020, the Equal Representation in Arbitration (ERA) Pledge, which was taken in 2016, crossed a milestone of having 4,000 signatories. The ERA has also initiated an “Arbitrator Search” tool, where users can search for female arbitrators by filing a simple form that requires basic personal information, the area of expertise, the applicable law, the language preferred, and similar details. Once the form is filled and the request is received by them, their Search Team shall find the best potential candidate for the stated requirements. As it is rightly said, every step counts, and this tool helps disputants find women arbitrators who are not very well-known but have excelled in their fields.
In the 2020 ICC report for the year 2019, it was noted that the ICC itself appoints 25%-30% of its total arbitrators and that ICC appointed as many women arbitrators as were nominated by the parties: 131 women were nominated by the parties (42% of all the women arbitrators), 134 women were appointed by the ICC itself (43% of the all the women arbitrators) and 45 women were nominated as the president of the tribunal by their co-arbitrators (14% of all women arbitrators). It also saw 1,476 appointments and confirmations of arbitrators out of which 21% were women arbitrators.
The report also mentioned that the number of women arbitrators appointed has doubled in the past four years and that the parties and counsels can play a huge role in increasing the number of women arbitrators even more. In 2019, 34% of women arbitrators were appointed through institutions whereas 21% were appointed through their co-arbitrators.
There are various arbitral institutions such as the LCIA, ICC and other prominent arbitral institutions who have supported the cause of increasing the number of women who participate in the arbitration process, and there has since been an upward trend. A few other instances are the Gender Equality Global Campaign, Alliance for Equality in Dispute Resolution, and the ADR Inclusion Network Pledge - all with the aim to bring changes to the gender disparity in the profession.
The practice of arbitration has seen a considerable spike during the COVID-19 times due to the ease of conducting meetings through virtual modes as well as the impossible circumstances where people cannot visit the courts. There have been hearings that have taken place over the newly adopt video calling mode being the new normal. This has also resulted in an increase in the number of cases that the arbitral institutions have had to take up. Consequently, these institutes are now appointing arbitrators in a greater capacity, meaning that there is also an increase in the number of women arbitrators who are being appointed.
“If everyone is thinking alike, then nobody is thinking,” said Benjamin Franklin. Every individual could adopt a different approach to think things through. A diverse approach can bring various skills and experiences to the table and can improve the quality and fairness of the arbitral awards being made. Having an equal number of women arbitrators onboard also increases the faith in the system as there are higher chances that more parties come forward and choose arbitration. Diversity can be achieved even by changing various hiring policies where a clause can be added regarding the hiring ratio of professionals, which could highly improve the way that the opportunities are given.
The institutes where arbitrators admit/register themselves can take the first step to regulate the disparity since they have the exact data about the arbitrators. Since they have a say in the appointment of arbitrators for a tribunal, they can try to bring about diversity at the forefront. Law firms and lawyers who not only advise the clients about their cases but also recommend the names of the arbitrators can also consciously make an effort to suggest women arbitrators. The arbitrators in their fraternity can promote this practice as well. Like it is said, “Every drop counts.”
Henry Ford had quoted once, “If everyone is moving forward, then success takes care of itself.” In this context, the only solutions are spreading general awareness and taking prompt and consistent actions to curb the huge gender gap present in this profession. International arbitration is being talked about and practiced on a huge scale now. This profession has a great potential to grow if reformative steps are taken in the right direction. The initiative should be taken from the strongest stakeholders, which would motivate other sections to step in and take a step further. To bring about any positive change, one has to start taking a series of affirmative actions; gender parity cannot be achieved overnight as a miracle. One human uplifts another, and there has to be a conscious and voluntary effort by each person. The situation has improved from what it was a few years back, but it can be better. Reasonable and significant steps/initiatives should be taken to bring about a considerable change. Hopefully, there would soon be no woman who chooses to be an arbitrator but is denied any opportunity simply because she is a woman.
*The name of the author of this article is Vidhi Pramesh Parikh. She is a second-year student studying at Jitendra Chauhan College of Law, Mumbai and she is also a member of the Institute of Company Secretaries of India. Email id- firstname.lastname@example.org.
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