Our thinking

2021 International Arbitration Survey: Adapting arbitration to a changing world

Introduction

The field of international arbitration is dynamic by nature. Its hallmarks of flexibility and party autonomy allow it to develop and adapt in response to the needs of its users. Recent times have seen an increased focus on drivers of change such as diversity, technology, environmental considerations and information security. The COVID-19 pandemic has also presented challenges to the way in which the international arbitration community interacts.

The 2021 International Arbitration Survey, titled 'Adapting arbitration to a changing world,' explores how international arbitration has adapted to these changing demands and circumstances. The survey investigates trends in user preferences and perceptions, and identifies opportunities for international arbitration to adapt more and better. This edition saw the widest-ever pool of respondents, with 1218 questionnaire responses received and 198 interviews conducted. Views were sought from a diverse pool of participants in the international arbitration sphere, including in-house counsel from both public and private sectors, arbitrators, private practitioners, representatives of arbitral institutions and trade associations, academics, experts and third-party funders.

White & Case is proud once again to have partnered with the School of International Arbitration. The School has produced a study which provides valuable insights into how international arbitration has adapted, and what more needs to be done by and for its diverse stakeholders. I am confident that this survey will be welcomed by the international arbitration community.

We thank Norah Gallagher and Dr Maria Fanou (White & Case Postdoctoral Research Fellow in International Arbitration) for their exceptional work, and all those who generously contributed their time and knowledge to this study.

Abby Cohen Smutny

Abby Cohen Smutny
Global Head of International Arbitration Practice Group
White & Case

 

It is with a sense of relief that I present the 2021 International Arbitration Survey on 'Adapting arbitration to a changing world'. In fact, that is exactly what happened just after we started work on the draft questionnaire in early 2020—the world changed due to COVID-19. We could not have known at that time quite how big an impact the pandemic would have globally. In such uncertain times, we had to postpone the launch of the survey for several months. We had no way to assess how long we should wait to start and how it might impact on the survey results.

The strength of the survey is entirely based on the level of participation by the arbitration community. It was an anxious time to see whether COVID-19 would adversely impact the numbers. I was truly grateful for the support of the international arbitration community as the largest number of people ever completed the survey—more than 1,200. Dr Fanou also interviewed almost 200 candidates from 29 countries to provide nuance and context for some of the findings. We thank all of the respondents for making this survey so comprehensive—a true success despite the pandemic.

This is the 12th empirical survey conducted by the School of International Arbitration at Queen Mary University of London and the fifth in partnership with White & Case LLP.  The results reflect an interesting snapshot of change in arbitral practice during a time of global upheaval. The arbitration community had to adapt quickly, and some of these changes will remain after the pandemic recedes. Virtual hearings and increased reliance on technology are clear examples of changes that will persist. It has been a challenging yet rewarding process, but we are pleased with the interesting results.

This survey may also prompt further discussion on future changes to arbitral practice and procedural rules.

Norah Gallagher

Norah Gallagher
Deputy Director, School of International Arbitration, Centre for Commercial Law Studies,
Queen Mary University of London

 “The field of international arbitration is dynamic by nature. Its hallmarks of flexibility and party autonomy allow it to develop and adapt in response to the needs of its users.”

Executive Summary

Current choices and future adaptations

  • International arbitration is the preferred method of resolving cross-border disputes for 90% of respondents, either on a stand-alone basis (31%) or in conjunction with ADR (59%).
  • The five most preferred seats for arbitration are London, Singapore, Hong Kong, Paris and Geneva.
  • 'Greater support for arbitration by local courts and judiciary', 'increased neutrality and impartiality of the local legal system', and 'better track record in enforcing agreements to arbitrate and arbitral awards' are the key adaptations that would make other arbitral seats more attractive.
  • The UNCITRAL Arbitration Rules are the most popular regime for ad hoc arbitration.
  • The five most preferred arbitral institutions are the ICC, SIAC, HKIAC, LCIA and CIETAC.
  • Respondents chose 'administrative/logistical support for virtual hearings' as their top choice adaptation that would make other sets of arbitration rules or arbitral institutions more attractive, followed by 'commitment to a more diverse pool of arbitrators'.
  • Arbitration users would be most willing to do without 'unlimited length of written submissions', 'oral hearings on procedural issues' and 'document production' if this would make their arbitrations cheaper or faster. 

Diversity on arbitral tribunals: What's the prognosis? 

  • More than half of respondents agree that progress has been made in terms of gender diversity on arbitral tribunals over the past three years. However, less than a third of respondents believe there has been progress in respect of geographic, age, cultural and, particularly, ethnic diversity. 
  • Respondents are divided as to whether there is any connection between diversity on a tribunal and their perception of the arbitrators' independence and impartiality. Just over half of the respondents (56%) stated that diversity across an arbitral tribunal has a positive effect on their perception of the arbitrators' independence and impartiality, but more than one-third (37%) took a neutral view. Others consider the enquiry redundant, on the basis that the call for more diversity does not require further justification.
  • 59% of respondents emphasise the role of appointing authorities and arbitral institutions in promoting diversity, including through the adoption of express policies of suggesting and appointing diverse candidates as arbitrators. However, the significance of the role of counsel is highlighted by about half of respondents, who included 'commitment by counsel to suggesting diverse lists of arbitrators to clients' amongst their answers. In-house counsel also bear the onus of encouraging diversity through their choice of arbitrators.
  • Many respondents feel that opportunities to increase the visibility of diverse candidates should be encouraged through initiatives such as 'education and promotion of arbitration in jurisdictions with less developed international arbitration networks' (38%), 'more mentorship programmes for less experienced arbitration practitioners' (36%) and 'speaking opportunities at conferences for less experienced and more diverse members of the arbitration community' (25%). Building visibility is particularly important in light of the general perception that users prefer arbitrator candidates about whom they have some knowledge or with whom they have previous experience. 
  • The general consensus amongst respondents is that caution should be exercised when exploring whether adaptations in arbitral practice experienced during the COVID-19 pandemic may have an impact on promotion of diversity objectives, as it can go both ways. Virtual events, meetings and hearings may facilitate participation by more diverse contributors, but this may be hindered by unequal access to technology and the challenges of building relationships remotely.

Use of technology: The virtual reality

  • Technology continues to be widely used in international arbitration, particularly 'videoconferencing' and 'hearing room technologies', but the adoption of AI still lags behind other forms of IT.
  • The increase in the use of virtual hearing rooms appears to be the result of how the practice of arbitration has adapted in response to the COVID-19 pandemic, as users have been forced to explore alternatives to in-person hearings.  
  • If a hearing could no longer be held in person, 79% of respondents would choose to 'proceed at the scheduled time as a virtual hearing'. Only 16% would 'postpone the hearing until it could be held in person', while 4% would proceed with a documents-only award.
  • Recent (and, in many cases, new) experience of virtual hearings has offered an opportunity to gauge users' perception of this procedural adaptation. The 'potential for greater availability of dates for hearings' is seen as the greatest benefit of virtual hearings, followed closely by 'greater efficiency through use of technology' and 'greater procedural and logistical flexibility'.Aspects that gave respondents most cause for concern included the 'difficulty of accommodating multiple or disparate time zones', the impression that it is 'harder for counsel teams and clients to confer during hearing sessions' and concerns that it might be 'more difficult to control witnesses and assess their credibility'. The fallibility of technology and the phenomenon of 'screen fatigue' were also cited.
  • Going forward, respondents would prefer a 'mix of in-person and virtual' formats for almost all types of interactions, including meetings and conferences. Wholly virtual formats are narrowly preferred for procedural hearings, but respondents would keep the option of in-person hearings open for substantive hearings, rather than purely remote participation.

Sustainability and information security: Opportunities and challenges

  • Respondents show a willingness to adopt paperless practices, such as production of documents in electronic rather than hard-copy form; providing submissions, evidence and correspondence in electronic format; and the use of electronic hearing bundles. Many respondents would also welcome more 'green' guidance, both from tribunals and in the form of soft law.
  • While the environmental benefits of remote participation rather than in-person participation are recognised, this this is not the primary motivation behind the decision as to whether interactions should be remote or in-person.
  • There appears to be increasing awareness of the need to embrace 'greener' practices. However, the overall message from respondents is that the reduction of environmental impact is a welcome side-effect of their choices throughout the arbitral process, rather than a priority in and of itself. 
  • Even though users generally acknowledge data protection issues and regulations may have an impact on the conduct of arbitrations, the extent and full implications of that impact are not understood by all. 34% of respondents predicted that data protection issues and regulations have 'limited impact at present but [this is] likely to increase'.
  • Only around a quarter of respondents said they have 'frequently' or 'always' seen cybersecurity measures being put in place in their international arbitrations. The majority (57%) encountered such measures in less than half of their cases.
  • The IT security measures and tools most used or recommended by respondents include 'cloud-based platforms for sharing electronic or electronically submitted data'; 'limiting access to prescribed individuals'; 'data encryption'; and 'access controls, e.g., multi-factor authentication'. Almost half of the respondents recommended the use of 'secure/professional email addresses for arbitrators rather than web-based email providers (i.e., no Gmail, Yahoo, Hotmail, etc.)'.
  • Respondents appreciate being able to rely on specialist IT support and systems to ensure robust cybersecurity protections are in place.
  • Although there are encouraging signs that users are mindful of cybersecurity issues and the need to address them, there is nonetheless ample scope for more engagement on this front.
     

Current choices and future adaptations

International arbitration is the preferred method of resolving cross-border disputes, with London, Singapore, Hong Kong, Paris and Geneva topping the list as the most preferred seats for arbitration. ICC, SIAC, HKIAC, LCIA and CIETAC were named as the top five arbitral institutions. 

Lone tree growing in rock formation

Diversity on arbitral tribunals: What’s the prognosis?

Undoubtedly, progress has been made in terms of gender diversity on arbitral tribunals over the past three years. But despite the increased focus on diversity issues and initiatives, respondents clearly feel that this has not as yet translated into actual or sufficient positive change.

Mangroves

Use of technology: The virtual reality

While technology in the practice of international arbitration has become increasingly commonplace, particularly when it boosts efficiency, the adoption of AI still lags behind other forms of IT. It is also seen as the factor most expected to influence the future evolution of international arbitration.

Plant in the dry soil

Sustainability and information security: Opportunities and challenges

There has been increased focus on the environmental impact of international arbitration in recent years. Reducing the environmental impact of international arbitration is a serious objective but how 'green' are arbitration users willing to go in practice?

Small bonsai in a remote lake

Acknowledgements

The School of International Arbitration of Queen Mary University of London would like to thank White & Case LLP for its financial support and substantive assistance, in particular Mona Wright and Clare Connellan, both in London, who coordinated the project on behalf of White & Case and provided invaluable input. We are also grateful for the guidance of Sheena Sarkar (Paris), Jonathan Brierley (London), Fiona Candy (Paris), Melody Chan (Hong Kong), Jorge Mattamouros (Houston), Alexandre Mazuranic (Geneva), Damien Nyer (New York), Petr Polasek (Washington, DC), Aditya Singh (Singapore), and the White & Case Business Development and Creative Services teams in London, Paris, and Moscow. 

We would further like to thank our external Focus Group for their generous and valued feedback on the questionnaire and methodology, including (in alphabetical order): Dr Mohamed S Abdel Wahab (CRCICA, Zulficar Partners), Olivier André (Freshfields, formerly CPR), Diana Bayzakova (TIAC), Domenico di Pietro (BCLP), Artem Doudko (Osborne Clarke), Geraldine Fischer (ICSID), Eric Franco (Engie Peru), Manuel Gonçalves (MG Advogados), Professor Silvina González Napolitano (Faculty of Law, University of Buenos Aires), Joe Liu (HKIAC), Mark Luz (Global Affairs Canada), Annette Magnusson (Climate Change Counsel, formerly SCC), Luis M. Martinez (ICDR-AAA), Kevin Nash (SIAC), Dr Emilia Onyema (SOAS), Maria Irene Perruccio (Webuild Group SpA), Professor Peter Sester (CAM CCBC), Olasupo Shasore SAN (Lagos Court of Arbitration), Tulio Toledo (PCA), and Dr Jacomjin van Haersolte-van Hof (LCIA). 

We are also grateful for the assistance of several organisations and individuals who helped promote the questionnaire, in particular: Kluwer Arbitration, Transnational Dispute Management/OGEMID, Global Arbitration Review, Thomson Reuters, LexisNexis, Professor Stavros Brekoulakis, Dr Rémy Gerbay and Professor Loukas Mistelis.

Most importantly, we would like to thank all stakeholders (private practitioners, arbitrators, in-house counsel, academics, third-party funders, government officials and other respondents) who generously gave their time in completing the questionnaire and/or being interviewed.

International arbitration is a complex and evolving field of law, and the need for deeply knowledgeable legal counsel is paramount.

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Mangroves

Diversity on arbitral tribunals: What’s the prognosis?

Undoubtedly, progress has been made in terms of gender diversity on arbitral tribunals over the past three years. But despite the increased focus on diversity issues and initiatives, respondents clearly feel that this has not as yet translated into actual or sufficient positive change.

Insight
|
19 min read

SUMMARY

  • More than half of respondents agree that progress has been made in terms of gender diversity on arbitral tribunals over the past three years. However, less than a third of respondents believe there has been progress in respect of geographic, age, cultural and, particularly, ethnic diversity. 
  • Respondents are divided as to whether there is any connection between diversity on a tribunal and their perception of the arbitrators’ independence and impartiality. Just over half of the respondents (56%) stated that diversity across an arbitral tribunal has a positive effect on their perception of the arbitrators' independence and impartiality, but more than one third (37%) took a neutral view. Others consider the enquiry redundant, on the basis that the call for more diversity does not require further justification.
  • 59% of respondents continue to emphasise the role of appointing authorities and arbitral institutions in promoting diversity, including through the adoption of express policies of suggesting and appointing diverse candidates as arbitrators. However, the significance of the role of counsel is highlighted by about half of respondents, who included 'commitment by counsel to suggesting diverse lists of arbitrators to clients' amongst their answers. In-house counsel also bear the onus of encouraging diversity through their choice of arbitrators.
  • Many respondents feel that opportunities to increase the visibility of diverse candidates should be encouraged through initiatives such as 'education and promotion of arbitration in jurisdictions with less developed international arbitration networks' (38%), 'more mentorship programmes for less experienced arbitration practitioners' (36%) and 'speaking opportunities at conferences for less experienced and more diverse members of the arbitration community' (25%). Building visibility is particularly important in light of the perception that users prefer arbitrator candidates about whom they have some knowledge or with whom they have previous experience. 
  • The general consensus amongst respondents is that caution should be exercised when exploring whether adaptations in arbitral practice experienced during the COVID-19 pandemic may have an impact on promotion of diversity objectives, as it can go both ways. Virtual events, meetings and hearings may facilitate participation by more diverse contributors, but this may be hindered by unequal access to technology and the challenges of building relationships remotely.

While it is undoubtedly important to promote diversity across arbitral panels, the reality is that a lot of work remains to be done in promoting diversity across counsel teams, too

34%

of respondents disagree that progress has been made in recent years in relation to ethnic diversity

 

The many faces of diversity: How much progress has been made?

Few, if any, would disagree that promoting diversity at all levels, including in the practice of international arbitration, is a positive thing. Calls for greater diversity, especially in relation to the appointment of arbitrators, have been prevalent for some time in the international arbitration community. The extent of progress towards this goal is a matter of debate. Respondents were therefore asked whether, and to what extent, they agreed or disagreed with the proposition that progress has been made in the past five years with regard to various aspects of diversity (i.e., gender, geography, age, culture and ethnicity) in terms of arbitral appointments. 

Very few respondents expressed either strong agreement or disagreement with the central proposition in relation to any of the five listed aspects of diversity. While it is encouraging that the majority of respondents (61%) agreed that some progress has been made in relation to gender diversity, this contrasts sharply with the position for the other featured aspects of diversity. In relation to geographic, age, cultural and ethnic diversity, less than a third of respondents positively agreed in each case that progress has been made in recent years. Finally, for all aspects of diversity, a significant percentage of respondents (ranging from 21% to 35%) took a neutral stance, i.e., they neither agreed nor disagreed that progress has or has not been made. 

Perhaps most revealing of all, these findings almost mirror the results for the same question posed in our 2018 survey.28 Despite the increased amount of focus on, and awareness of, diversity issues and initiatives since then, respondents clearly feel that this has not as yet translated into actual or sufficient positive change.

One difficulty identified by interviewees who were generally neutral on whether advances have been made is that it is hard to measure progress in this context. Although the publication by institutions and appointing authorities of diversity-related statistics for arbitral appointments is to be welcomed in terms of providing some degree of verified information, it was noted that these statistics represent limited data sets. On a similar note, respondents mentioned the difficulty in defining different aspects of diversity. For example, interviewees questioned how age diversity can be statistically measured in the absence of agreement as to how to define it in the first place.

Ethnic diversity, in particular, continues to be an area where respondents feel there is a distinct need for improvement. As in our 2018 survey, the statement that recent progress has been made in relation to ethnic diversity had the least agreement among the five listed aspects of diversity, with only 31% of respondents agreeing.29 Some interviewees expressed their frustration and dismay at the lack of progress in this area. One perception was that, unless there is a level playing field in terms of opportunities for engagement and visibility within the arbitration community, it is difficult to see how greater diversity can be achieved in arbitral appointments. One interviewee, for example, tellingly recounted attending an arbitration conference focusing on arbitration in Africa where none of the invited speakers were from Africa themselves. Similar 'pipeline' issues were also raised in relation to other aspects of diversity.30

While the question posed to respondents lists only a small selection of aspects of diversity, interviewees raised other aspects of diversity which they felt should also be given greater consideration. In particular, some interviewees focusing on arbitration in specific industries felt that the demands of certain types of disputes would be better served by less 'legalistic' arbitration procedures. They noted in this context that there is room for more diversity in terms of arbitrator 'background', i.e., welcoming more arbitrators who come from relevant industries and who are not necessarily qualified lawyers, but who have training in international arbitration procedure.

Ethnic diversity continues to be an area where respondents feel there is a distinct need for improvement

 

Diversity, independence and impartiality: Is there a connection?

We then explored whether there is any correlation between diversity on a panel of arbitrators and users' perception of the arbitrators' independence and impartiality. 

Responses were divided and no single viewpoint attracted a significant majority of support. Just over half of the respondents (57%) stated that diversity has either 'the most positive effect' (36%) or 'positive effect' (21%) on their perception of the arbitrators' independence and impartiality. Only 6% said that it has a 'negative' (5%) or 'the most negative effect' (1%). More than a third of respondents (37%), however, said that diversity across a panel of arbitrators has no effect at all on their perception of the arbitrators' independence and impartiality.

This outcome was replicated across those interviewed on this issue, who insisted that a nuanced approach is necessary on diversity. Many felt that the answer essentially depends on two factors: the type and particularities of a given dispute and the type of diversity in question. Put differently, the majority of interviewees felt it is not possible to provide a 'one-size-fits-all' answer to this question—rather, one must take into account what is meant by 'diversity' in each given case. So, a respondent's choice of a positive or neutral answer to this question should not simply be taken at face value. As the interviews revealed, it is neither the case that those who replied in the positive unreservedly felt that an arbitral panel that lacks diversity would be partial as a result, nor that those who gave a neutral response felt that diversity is always irrelevant.

61%

of respondents agree that progress has been made in recent years in relation to gender diversity

To see the change in responses between 2018 and 2021, watch the animation below:

Additional nuances were also offered when specific aspects of diversity were considered by interviewees. 

One view articulated in a number of interviews was that, when it comes to gender diversity, lack thereof has no impact on those respondents' perception of the tribunal's independence and impartiality. As one interviewee explained, gender diversity on tribunals is a laudable goal, but they would not automatically question the impartiality or independence of a panel just because its members were all female or all male. Similarly, age diversity was largely considered to be irrelevant in terms of perceptions of independence and impartiality.

Ethnic, geographic and cultural diversity were often considered to be interconnected. Some interviewees, both counsel and arbitrators, stressed that the impact of ethnic, geographic and cultural diversity on perceptions of impartiality and independence of arbitrators can depend, in part, on the nature of a given dispute. This is particularly the case in investor-state arbitration, where they felt diversity or the lack thereof could be viewed as having an impact on both party and public perceptions of the legitimacy of the process. Another example from interviewees is where an arbitral panel is composed entirely of arbitrators who have no relationship with or understanding of a specific country or culture central to a dispute. This could lead parties to feel that the arbitrators might fail fully to appreciate cultural differences and (perhaps subconsciously) favour parties from areas or cultures with which the arbitrators are more familiar. This concern arose particularly in relation to arbitrators from North America and Western Europe when dealing with disputes involving legal or cultural mores from other parts of the world.

Finally, a significant number of interviewees rejected the entire premise of the question, expressing that it is simply unnecessary, in this day and age, to seek to draw any correlation between diversity and arbitrators' independence and impartiality in order to justify calls for increased diversity. It should suffice that having more diverse pools of arbitrators is the right thing. The real question for them is how to encourage more diversity in practice.

While gender diversity on tribunals is a laudable goal, users would not automatically question the impartiality or independence of a panel just because its members were all female or all male

 

Encouraging greater diversity: Yes, but how?

Respondents were asked which initiatives they considered to be most effective in encouraging greater diversity in terms of arbitral appointments. Respondents were asked to choose up to three options from a list of suggestions, to which they could also elect to add suggestions of their own.

'Appointing authorities and institutions adopting an express policy of suggesting and appointing diverse candidates as arbitrators' was the most chosen option (59%). This reflects a preference for the institutions to be proactive in this regard. It also confirms the prevailing perception of arbitration users as to which participants in the international arbitration community wield the most influence on the promotion of diversity.31 

This perspective was confirmed by an overwhelming majority of interviewees. As some explained, arbitral institutions (and, by extension, other appointing authorities) can exercise this influence when they are called upon by parties to select tribunal members or presiding arbitrators, either from the outset or when the parties or co-arbitrators have been unable to reach an agreement on appointments. Several interviewees opined that institutions and appointing authorities were also likely to maintain or have access to databases reflecting a larger pool of candidates for tribunals than parties or their counsel might otherwise consider. Representatives of various arbitral institutions confirmed that increasing diversity across tribunals is high on their agenda when appointing arbitrators. As discussed at pp.11 – 12 above, interviewees also saw an opportunity presented by the growing presence of regional and less widely known arbitral institutions and the role they could play in promoting diversity objectives, including by suggesting and appointing diverse arbitrator candidates. 

However, while appointing authorities and institutions undoubtedly play a major role in arbitral appointments, it was generally agreed that the larger proportion of candidates are nominated by parties and their counsel.32 The significance of the role of counsel was highlighted by 46% of respondents, who included 'commitment by counsel to suggesting diverse lists of arbitrators to clients' amongst their answers. 

Ultimately, it is always the demands of the case that determine choice of arbitrators

The prevailing sentiment amongst interviewees, however, was that this is often easier said than done. Some private practitioners admitted that they do not necessarily suggest as diverse a spread of candidates as they could when proposing lists of potential arbitrators to clients. Several interviewees reported that they encounter resistance from their clients when they do suggest candidates with whom the clients are relatively unfamiliar; similarly, clients are often not willing to trust suggested names who have less experience as arbitrators. The vast majority of interviewees emphatically pointed out that, ultimately, it is always the demands of the case that determine their choice of arbitrators. One interviewee noted it is not always easy for counsel to persuade clients to consider a wider range of arbitrators. However, this does not absolve them of the responsibility to carry out the necessary due diligence and propose and promote diverse choices to their clients. Interviewees also emphasised that in-house counsel have the ultimate power to choose between potential arbitrator candidates and so the onus is on them to encourage diversity by their choices. 

This theme of responsibility of both external and in-house counsel and, in particular, of more senior members of the arbitration community in promoting diversity was emphasised by several interviewees. Notably, this included both arbitrators and in-house counsel. One point that was repeatedly made is that, even though it is undoubtedly important to promote diversity across arbitral panels, the reality is that a lot of work remains to be done in promoting diversity across counsel teams. Drawing attention to this 'pipeline' issue, one interviewee noted that 'today's counsel may be tomorrow's arbitrators'. 

The third most cited suggestion (38%) was 'education and promotion of arbitration in jurisdictions with less developed international arbitration networks'. 'More mentorship programmes for less experienced arbitration practitioners' ranked fourth (36%). In addition, a quarter of respondents (25%) included 'speaking opportunities at conferences for less experienced and more diverse members of the arbitration community' as a way to encourage greater diversity. As explained in the interviews, these events help increase the visibility of newer entrants to the arbitration field. Organisers of such events are urged to make sure that their lists of speakers and moderators reflect diversity of all kinds. Building visibility is particularly important, because users tend to prefer arbitrator candidates about whom they have some knowledge or with whom they have previous experience.

A number of respondents also opted for 'dedicated interest groups that promote diversity in particular aspects or areas, e.g., ArbitralWomen, Africa Arbitration Association, The Alliance for Equality in Dispute Resolution' (22%) and 'dedicated policy texts that promote diversity, e.g., The African Promise, The Equal Representation in Arbitration Pledge' (11%). However, a number of interviewees expressed scepticism with regard to the proliferation of groups promoting particular aspects of diversity relative to their tangible contribution.

46%

of respondents encourage commitment by counsel to suggesting diverse lists of arbitrators to clients​​​​​​

 

Diversity and the pandemic: A blessing, a curse or irrelevant?

The arbitration community has had to adapt in many ways in response to the COVID-19 pandemic. We sought interviewees' views on any potential correlation between the pandemic, the necessary adaptations in the practice of arbitration and the promotion of diversity objectives. The general consensus was that it can go both ways. 

On the positive side was that there might be new opportunities to increase the visibility of practitioners from groups that are underrepresented or who are based in jurisdictions which are not amongst the best-known hubs for international arbitration. For instance, the shift from in-person to online conferences and events has opened up participation to wider audiences worldwide. This also offers the opportunity for speakers at those events to introduce themselves to members of the arbitration community with whom they may not otherwise have been able to connect. Remote working could facilitate access to the arbitration community for people who may have been unable to travel.33 Several interviewees also thought increased use of IT could encourage inclusion of younger arbitrators who are more familiar with new technologies. 

Cautious notes were also sounded on how much impact there may be on diversity objectives. Some interviewees, including arbitrators, speculated if the lack of in-person meetings between members of a tribunal would push those selecting arbitrators to prefer a more well-known candidate with existing relationships with other tribunal members. They attributed this to a fear that it may be more difficult for newer candidates to establish those relationships of trust and confidence remotely.34 Unequal access to reliable and affordable technology required for remote participation in hearings, meetings and community events was also flagged by many as a challenge.

 

Click here to download Diversity on arbitral tribunals: What’s the prognosis? (PDF)

 

28 2018 International Arbitration Survey, pp.17-18.
29 In 2018, only 24% of respondents agree that progress had been made in this regard over the previous five years.
30 See also the discussion at pp.18-19 below on initiatives to encourage greater diversity.
31 See 2018 International Arbitration Survey, p.19 (Chart 17). Arbitral institutions were voted by nearly half of respondents (45%) to be the best placed stakeholders to ensure greater diversity across tribunals.
32 See 2018 International Arbitration Survey, p.18-19.
33 13% of respondents thought an advantage of virtual hearings is that they may encourage greater diversity across tribunals (see further Chart 15 below).
34 See further pp.23-24 below.

 

 

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