The importance of gender balance when it comes to decision-making has been to the fore over the past week, with the Citizens’ Assembly on Gender Equality meeting last weekend and public concern over the absence of women from the decision-making process on Covid-19 restrictions. It was also a major topic of debate in Jacinda Ardern’s re-election last weekend as prime minister of New Zealand.
Arbitration, like every profession and decision-making process, can only benefit from a much higher participation of women.
Arbitre is French for ‘referee’. This accurately reflects the job an arbitrator undertakes, sitting as a private judge, deciding on a binding basis a dispute between the parties within the framework of their arbitration agreement. Arbitration at its heart deals with trade disputes but has evolved into myriad other areas and almost anything can be arbitrated, although matters of criminal and employment law, for example, are excluded under the Arbitration Act 2010.
A recently published report by the International Council for Commercial Arbitration (ICCA) scrutinised the gender diversity efforts of the international arbitration community while also encouraging the promotion and engagement of women in all aspects of arbitration. Unsurprisingly, the ICCA acknowledges that improving gender diversity will benefit arbitration by enhancing the legitimacy and balance of and confidence in the outcomes of that process.
Having a deeper pool of perspectives reduces groupthink and enhances decision-making. It is patently obvious that arbitration panels should reflect society as a whole, but at present they do not.
Formal statistic gathering began in 2015 at which time women represented just 12 per cent of arbitrators globally. This is partly due to the classic conundrum that to be selected to decide in a dispute, an arbitrator must be known and experienced, but you cannot gain the necessary experience if, like many women, you have not put yourself forward for selection or have left the system in what has been referred to by arbitrator Lucy Greenwood as the “leaky pipeline”.
Since then there has been some progress made, such that by 2019 women comprised just over 21 per cent of international arbitrator appointees. This is due to the work of organisations such as Arbitral Women and global initiatives including the Equal Representation in Arbitration Pledge which was created to redress gender imbalance in arbitrator appointments. The pledge is supported by global arbitral Institutions, the ICC International Court of Arbitration, Arbitration Ireland, and by law firms and individuals.
ICCA reports that 34 per cent of appointments by arbitral institution appointments were women, while women made up 21.5 per cent appointments by co-arbitrators and only 13.9 per cent of party appointments. There remains a substantial gap to be plugged, with the greatest opportunity for improvement lying with parties and their representing lawyers. The need for clear data and the collection of statistics in an Irish context is both important and urgent – what gets measured gets done.
At the very least, those involved in arbitration should always have the option of selecting from prospective panels of arbitrators that include women. That means women must be seen, encouraged and supported to stay the course. It also means, however, that there needs to be a talent pipeline that will give choice, increased transparency in arbitrator appointments and better access to information about available arbitrators.
Small steps such as abolishing “manels” help to bring balance and provide platforms for aspiring women arbitrators. The new international Rising Arbitrators Initiative aims to support young arbitrators regardless of gender, while the arbitration community, and in particular the arbitral institutions, are starting to understand and respond to the fact that making arbitration more inclusive, starting with gender, is good for business and improves the quality of tribunal deliberations and ultimately arbitration awards.
I came to arbitration through a career in sports dispute resolution as general counsel for a global sports federation. That role involved many years appearing before various tribunals of legal, sport and commercial experts, and the experience proved to be invaluable in my current role as an international and Court of Arbitration for Sport arbitrator. I am now on the other side of the table dealing with sports and commercial disputes, often as a sole arbitrator but more frequently as part of mixed panels.
In the international commercial environment of today, there is an impetus to ensure that, at the very least, gender balance is considered in the appointment process. Equally, there is a new and refreshing openness to inclusion generally, which means that young arbitrators (in the arbitration world that means under 45!) whether in age or experience, have opportunities to be part of the conversation and partake in the change.
So now is a good time for women to start to look to a career in international arbitration and I can only encourage more to do so; business, the process and the arbitral awards will be the better for it.
Susan Ahern is a barrister, arbitrator and mediator practising at the Bar of Ireland