The good news: A recent release by the Stockholm Chamber of Commerce (SCC) showed a 50% increase in gender diversity among appointed arbitrators in 2018 versus 2017. The not-so-good news: of the total appointments of 225 just 27% were women.
Arbitration historically suffers from a lack of gender diversity
In the arbitration community, having a high profile is a key success factor in being included in the list of arbitrators from which the appointing parties select representation. Traditionally, this has worked in favour of men. As one London-based law firm Managing Partner explained at a recent Burford roundtable, “…some male arbitrators are their best PR agents: they are charming and outgoing and you will hear about everything they are doing in the first five minutes of speaking to them. But in my observation female arbitrators tend to be less self-promotional.”
It should also be noted that institutions select more women than do individual parties. For instance, in 2018, 29% of the arbitrators appointed by the SCC were women, compared to 24% appointed by the parties. The same held true in 2017, when the SCC appointed female arbitrators in 37% of appointments, whilst parties did so only in 8% of arbitrations. That said, in 2018, co-arbitrators in SCC arbitrations appointed female arbitrators in 56% of the appointments, the highest figure ever reported by the SCC. Indeed, this is a significant increase over the prior year in 2017, when SCC co-arbitrators appointed not one female arbitrator.
The SCC is not alone in leading the way in increasing the number of female arbitrator appointments. In FY2018, ICSID reported that 30% of the arbitrators appointed by ICSID were women, as compared to 24% appointed by the parties jointly, and 8% appointed by ICSID co-arbitrators. And, when considering the arbitrators appointed by each party in ICSID arbitrations, 35% of the arbitrators appointed by respondents in FY2018 were female, compared with only 6% by claimants. This level of detail has not yet been made available by the SCC.
Of equal relevance, there should be a focus not just on an increased percentage of female arbitrators being appointed in ICSID, SCC, and other arbitrations, but also on the number of unique appointments. For instance, although 35% of the ICSID arbitrators appointed by respondents in FY2018 were female, a number of those were repeat appointments. Indeed, two well-known arbitrators have historically accounted for more than 50% of all female arbitrators appointed in ICSID and UNCITRAL investor-state arbitrations.
Statistics show improvements but we can do better
Although we should view the increased percentage appointment of women arbitrators in 2018 as a positive development, we can do better. A plethora of legal diversity initiatives are being implemented, but what is still often lacking are practical solutions to improve the profile of women which, in turn, is key to attracting high profile client work.
With the Equity Project, Burford Capital has earmarked a $50 million pool of capital for women-led litigation or arbitration matters—creating an economic incentive for change. The driving force behind the initiative is to help women to become more proactive in pursuing the kinds of new business opportunities that will help them build a book of business. In turn, this improves their internal profile within their respective law firms and/or their prospects of being regularly appointed as lead arbitrator in international arbitration proceedings around the world.
Arbitration is a particular area of expertise for Burford, and we are proud that over half of our Equity Project Champions are leaders in international arbitration and dispute resolution. Our shared goal is to place a spotlight on the challenges that women face and to increase awareness of tools and resources available to address the gender diversity challenge.
We are heartened by the progress being made and optimistic that we will make even greater progress with collaboration, commitment, new thinking and tactical financial incentives such as The Equity Project.