Diversity in International Arbitration: Nurturing the appropriate discourse

By Octavie Jacquet, first-year master’s student in Economic Law,

“If everyone is thinking alike, then no one is thinking”[1]

This quote, credited to Benjamin Franklin, clearly illustrate why diversity should be a necessity in our societies today. Indeed, the lack of diversity leads to similarity of thinking, a phenomenon even coined “groupthink” in psychology.[2] The issue of diversity was brought to light rather publicly in the field of arbitration in a case involving Shawn C. Carter, also known as Jay-Z, in the United States of America. As a matter of fact, Jay-Z challenged the defendant’s request to solve the dispute through arbitration, following the procedures of the American Arbitration Association (AAA), in a commercial intellectual property lawsuit between Iconix Brand Group Inc and his fashion company. In this case, the parties struggled to appoint a final arbitrator as Jay-Z wanted a black arbitrator, and the AAA was only able to present him two valid choices among a list of more than 200 arbitrators made available to him.[3] While this was a national scale arbitration, it is still of interest to us regarding international arbitration, be it commercial or investment, since the field has often been described as being “white, pale and stale” in the literature, due to the overrepresentation of  white senior Western men in the arbitration pool.[4] The median international arbitration was indeed in 2015 “a fifty-three-year-old man who was a national of a developed state and had served as arbitrator in ten arbitration cases”.[5] The discourse of diversity in international arbitration began in the late 1980s and 1990s when Mirèze Philippe and Louise Barrington noticed the lack of women in leading roles in international commercial arbitration. As a result, they created in 1993 ArbitralWomen, an international nongovernmental association that promotes the interests of women in dispute resolution. Since then, gender diversity improved significantly, mainly through the appointments of female arbitrators by arbitral institutions.[6] Despite the 700% increase in women appointments from 1990 to 2012, such appointments only accounted for 6.5% of total appointments in 2012. While 21% of appointments under the umbrella of the ICC in 2019 were women, it is clear that despite the progress made, diversity is still far from being reached in the field of international arbitration. This is even more evident when looking at the broader picture of diversity, as encompassing age, sexual orientation, ethnicity, disabilities, nationality etc. In fact, these categories are much less studied or promoted within the field when compared to gender diversity. The recent Equal Representation in Arbitration (ERA) Pledge, launched on 18 May 2016 in London, underlines this discrepancy, as it promotes the appointment of female arbitrators, but does not tackle other forms of diversity.[7] This crystallizes the unidimensional conceptualization of diversity within the field, which is problematic as, diversity, understood in a broad scope beyond the sole dimension of gender, is crucially needed in international arbitration, so as to nurture the legitimacy and efficiency of this dispute resolution tool. A reconceptualization of diversity is thus necessary to better understand the challenges the field is faced with regarding diversity, and to better act on them.

This article, after recontextualizing international arbitration, the challenges it is faced with and its need for a broader diversity, will most importantly advocate for the necessary change in the discourse on diversity in international arbitration, since this discourse, while heavily centered on gender, played a crucial role in the progress made so far. Adapting this discourse to the new stakes around diversity would enable this discourse to play an optimal role in and facilitate the development of a truly diverse field of international arbitration, by enabling the actors of the field to tailor the current and new instruments used to promote diversity.

I. International arbitration in context: challenges and the need for diversity

Diversity has become increasingly necessary in the arbitration field regarding the evolutions in the multiplication of cases around the world and in the origins of the parties. Given this situation, diversity would enable a faster and Pareto efficient international arbitration, since all the actors are better-off with more diverse panels and because diversity offers an answer to several of the many criticisms raised concerning the efficiency and legitimacy of arbitral proceedings.

The efficiency criticism

Firstly, international arbitration has been recently faced with criticisms regarding its efficiency. Indeed, the attractiveness of this dispute resolution tool partly relies on its promise for efficiency, be it in terms of costs or time. However, more and more observers have underlined the growing time arbitral processes take, notably due to the high demand for some renowned arbitrators, who are often booked for years.[8] Consequently, these practical difficulties greatly affect the efficiency of some arbitral processes. Moreover, the quality of decision-making has been shown to suffer greatly from the lack of diversity, since the latter entails “groupthink” effect. This means that people from the same background/social categories will tend to think in the same way about a situation, and concretely tend to agree much faster on decisions to take, by dissenting less and being less prepared in the context of arbitral processes.[9] Diversity is a crucial instrument to mitigate such effect by bringing people from different walks of life around the arbitral table. Diverse panels would be more prepared, more receptive and attentive to the parties, would dissent more and explore a greater array of options and argument and consequently produce greater quality decisions.[10]  Furthermore, matching arbitrators with the same cultural background as the witnesses has been shown to improve the quality of the arbitration process.[11] Overall, the improvement of the quality of decision-making thanks to greater diversity has been studied in a wide number of contexts.[12] An additional argument in favor of diversity, linked to the “groupthink” phenomenon, is its ability to disrupt the implicit biases of arbitrators. For example, these biases have been shown to impact the perception of witnesses by arbitrators.[13] The issue of implicit biases is gaining in significance with the increased recourse to technologies, such as artificial intelligences, during arbitral processes and the development of online dispute resolution, which may possibly in the long run disrupts international arbitration. Serious practical and ethical problems stem from the impact of implicit biases on the ways which technologies are created, developed and used.[14] The development of new technologies in the field makes for a strong call for further diversity to mitigate such risks, as they would otherwise further reduce the efficiency of international arbitration and in the long run its attractiveness. But the criticisms aimed towards the efficiency of the arbitral process are to be considered in regard to another strong charge made at international arbitration, relying on its legitimacy.

The legitimacy criticism

Going beyond the efficiency gains diversity could bring in international arbitration, it is now necessary to highlight its central role for the legitimacy of the arbitral process. In truth, bringing more diverse arbitrators on the bench would play a significant role in reinforcing the legitimacy of international arbitration, by answering to an increasing demand from its consumers, whose profile radically changed in the last decades. International arbitration was developed globally in the recent decades, and cases from every continent are now tackled on an every-day basis. More specifically, an increasing number of cases comes from Africa and Asia. In contrast, the pool of arbitrators remains very centralized around arbitrators from North America and Europe. This was not such a problem before. To illustrate, three decades ago, parties from Western Europe represented around 62% of the cases, when in 2013 they only represented 33% of the cases. Looking at some ICC data in 2013, most arbitrators came from the United States, Switzerland, France, the United Kingdom or Germany.[15] As a result, this creates a real discrepancy today between the profile of the parties and the profiles of the arbitrators. Accounting for the importance of the arbitrators’ background in the eyes of the parties, one can very easily understand the legitimacy criticism rising from the diversity deficit, and why it attracted so much attention.[16] One risk of not diversifying the arbitral tribunals would be to see the potential new customers turning themselves towards other means of dispute like litigation, as many states have made efforts to nurture greater diversity in their national justice systems.[17]

On a last note, the issue of legitimacy brings up more ethical considerations. The lack of demographic mirroring, or as we have just seen, of parties involved has been strongly pointed out. At world level, half of the population is female, and what we commonly refer to as “ethnic minorities” are in fact the majority. But international arbitration is very far from these proportions. Consequently, this lack of demographic mirroring undermines the ethical legitimacy of arbitration, that appears to be an international legal order greatly disconnected from the global population in terms of representation.

Diversity is truly necessary to “keep a modern, flexible and desirable method of dispute resolution”, that will stay attractive to business actors across the world by improving the quality of the decision-making and the legitimacy of international arbitration as a dispute resolution tool.[18] Nevertheless, for diversity to bear its fruits, its conceptualization in the field crucially needs to change to aim at a broader definition, which will be the sole one able to nurture the efficiency and the legitimacy of this dispute resolution instrument.

II. A crucially needed change in the discourse about diversity in international arbitration

The conceptualization of diversity has been until very recently unidimensional, as it mostly addresses diversity through the lens of gender. While a rising awareness of this partial conceptualization can be witnessed, a multidimensional conceptualization is still far from being paradigmatic in the field. This unidimensional conceptualization has concrete consequences on the suitability and effectiveness of the instruments adopted to improve diversity. Broadening the scope of diversity, adopting an intersectional analytical framework, and shifting from an “underrepresentation” to an “invisibilization” discourse would greatly contribute to the widespread adoption of a multidimensional conceptualization of diversity by all actors in the field.

Broadening the scope of diversity

The glaring underrepresentation of minority groups, reflected in the current literature and mainstream discourse, is easily perceivable when taking a step back. For instance, disabilities or sexual orientation are often overlooked compared to the focus given to gender or ethnic diversity and are as a consequence underrepresented.[19] The ICC website is a perfect example of that phenomenon. The pages dedicated to diversity focus mainly on gender diversity and offers some statistics relating to the appointment of women in arbitral tribunals. But very few is said about other underrepresented groups, and no data is available. One page dedicated to LGBTQIA presents the organization’s aim to create an inclusive environment within the institution, but no action directed towards the appointment of arbitrators from this group is mentioned. Ethnic, geographical, or social background diversity are not touched upon.[20] This is particularly problematic considering the crucial role arbitral institutions play in promoting diversity in international arbitration. The lack of attention given to these groups, concretely crystallized by a lack of data, mentions and research about these groups, constitutes a serious issue as it greatly affects their visibility and in the long run their promotion. The typical counterexample is the one of gender. With the intense scrutiny it got in the literature and in the field, that led to the adoption of the ERA Pledge in 2016, the issue of gender representation was taken seriously and has now greatly improved, even if there is still room for improvement. The ERA Pledge therefore really crystallizes this unidimensional conceptualization of diversity, focused on gender equality.

The extreme underrepresentation of these groups today in international arbitration raises serious issues about the legitimacy of the concept of diversity as conceptualized today in the field, as well as bring harm to the efficiency of the arbitral process, as to create effective instruments to promote the inclusion of such groups, diversity needs first to include them. To fix these gaps of the current paradigm on diversity in international arbitration, interesting conceptual tools have been brought forward, such as the adoption of an intersectional lens.

Bringing intersectionality in the discussion

Intersectionality is a concept coined by Kimberly Crenshaw in 1989 to describe how gender, class, ethnic and other individual “characteristics” intersect and create completely new inequalities, stemming from the synergies of the different inequalities resulting from the different individual characteristics.[21] It is of interest here as an analytical framework, that can help the field understand what difficulties lawyers with intersecting characteristics face to enter international arbitration, improve the research aiming at nurturing diversity and by extension adopt the adapted tools to promote their participation, so as to reach a substantial and real diversity.

Authors have advocated for the use of this analytical framework, after having noticed the unidimensional conceptualization of diversity, not only in terms of categories covered, but also in the treatment of the inequalities, studied in isolation from one another. [22] This lens appears as urgent to adopt, as the current analytical framework on diversity has serious practical consequences, for example in the promotion of gender diversity. Karton and Polonskaya underlined that if  the “community [is] to take diversity seriously, [it] must move beyond the kind of token diversity that sees only white women from developed Western countries added to the pool of arbitrators”.[23] This phenomenon was particularly highlighted within investment arbitration.[24] The data that has been collected regarding diversity once again exemplifies the shortcomings of the current discourse on diversity, as they only focus on one diversity criterion, typically gender. The most interesting input from this criticism relates to the danger the current discourse represents for the goal of diversity within international arbitration, as, by focusing on unidimensional progress of diversity, like the appointment of white female arbitrators from developed country, the discourse “engenders complacency without tackling the most important problems”.[25] Consequently adopting an intersectional analytical framework appears as essential for diversity to keep its promises.

In addition, although the use of this framework has so far been rather limited to the analysis of progress made in the field, it should also be applied to current arbitration insiders and newly appointed male arbitrators. Considering the social background, ethnicity, sexual orientation, geographic origin of these newly appointed arbitrators is key to get a correct grasp of the current state of diversity in the field and may reshuffle the cards. It raises furthermore interesting questions about the unprecedented character of diversity in the field, as for example some of the insiders may be from underprivileged social backgrounds. While this has been shown to be unlikely, raising this point underlines how the narrative about diversity can be as much a social construct as a reality.

A truly unprecedented diversity? From the underrepresentation discourse to the “invisibilization” one

A last interesting thought relating to the discourse that needs to be adopted was raised by Benjamin G. Davis in a key article, in which he argues for a shift from the underrepresentation discourse to what we will call the “invisibilization” one. He demonstrates how, through their long presence in international trade, that can be traced back to the triangular trade, or their actions during the Civil Rights Movement, that contributed to create a context in which the American State was reluctant to become an active actor of international arbitration, black people were always actors of the American international arbitration field, even if in an indirect way.[26] Such statement goes completely against the mainstream consensus on the historical lack of diversity in international arbitration. This argument, beyond its theoretical interest, has practical effects. Once the unseen has been recognized, it allows us “to recognize that an individual considered to be underrepresented is actually a symbol of the continuation of a flow of persons from that group that goes back decades or possibly centuries”.[27] In concrete terms, it may become easier to enter the field if the latter recognizes that the participation of underrepresented groups dates in fact to an earlier time. Interestingly, Davis uses the example of gender diversity to show how the construction of such a narrative can help the improvement of diversity within international arbitration, by highlighting three dates, 1993, 1998 and 2019, that can be inscribed in the continuity of the unseen work of women in arbitration, that were for a long time “the secret of the “great men” in arbitration in the 1980s and 1990s”, especially in counsel.[28]

These last points highlighted the crucial role the conceptualization of diversity in the field play for the improvement of diversity itself. They give concrete tools to be used by writers but also practitioners to promote this diversity, by contributing to the development of a new paradigmatic discourse on it. They furthermore underline the need for further research and data.

Diversity within international arbitration is getting increasingly necessary to ensure it stays an efficient, attractive, and legitimate instrument of dispute resolution in the eyes of the parties. While the slow pace of the progress made is often pointed out, it is still important to underline the significant changes brought forward. Nevertheless, the current paradigmatic discourse on diversity in the arbitration sphere will not in the long run enable the field to face its main challenges and would only results in a simulacrum of diversity. Only by adopting a broad definition of diversity, an intersectional analytical framework and shedding light on the continuous, but unseen, nature of diversity in arbitration, will diversity be able to bear its fruits. As a matter of fact, the instruments for furthering diversity would be tailored to best suit the need of the field. The recent words of the co-chairs of the ERA Pledge at the GAR ERA Pledge Award 2022 are encouraging, since they demonstrate actors in the field are getting increasingly aware of the limitations of the current discourse on diversity, but more needs to be done for a new one to become mainstream.[29] Moreover, this claim would now need to be completed by studies of the current instruments used to enhance diversity in the field, conducted with the approach advocated previously, as it would enables actors of the field to adopt relevant and tailored tools. The efficiency of these instruments would especially rely on their abilities to counter the “Leak” and “Plug Problem”, defined by Lucy Greenwood relating to gender diversity, but that can be virtually transposed to other types of diversity. [30] Finally, the need for diversity takes on another significance in the context of mandatory arbitration, as developed in some international or national sectors.[31]

[1] Braghetta, A. (2015). Diversity and Regionalism in International Commercial Arbitration. Victoria University of Wellington Law Review, 46(4), 1245–1258. https://doi.org/10.26686/vuwlr.v46i4.4890.

[2] Cambridge Dictionary. (2021). Diversity : Definition. https://dictionary.cambridge.org/fr/dictionnaire/anglais/diversity.

[3] Green, M. Z. (2020). Arbitrarily Selecting Black Arbitrators. Fordham Law Review, 88(6), 2255-2286.

[4] See Haridi, Polonskaya, Greenwood, Davis… and many more authors.

[5] Franck, S. D., Freda, J., Lavin, K., Lehmann, T., & Van Aaken, A. (2015). The Diversity Challenge: Exploring the Invisible College of International Arbitration. Columbia Journal of Transnational Law, 53(3), 429-506, 466.

[6] Davis, B. G. (2020). American Diversity in International Arbitration: New Arbitration Story or Evidence of Things Not Seen. Fordham Law Review, 88(6), 2143-2154. https://heinonline-org.accesdistant.sciencespo.fr/HOL/Page?lname=&public=false&collection=journals&handle=hein.journals/flr88&men_hide=false&men_tab=toc&kind=&page=2143.

[7] Equal Representation in Arbitration Pledge. (2016). Arbitration Pledge. http://www.arbitrationpledge.com/take-the-pledge.

[8] Haridi, S. (2015). Towards Greater Gender and Ethnic diversity in International arbitration. BCDR International Arbitration Review, 2(2), 305‑316 https://kluwerlawonline.com/journalarticle/BCDR+International+Arbitration+Review/2.2/BCDR2015016.

[9] Supra note 1.

[10] Supra note 8, 312 ; Karton, J., & Polonskaya, K. (2018). True Diversity is Intersectional: Escaping the One-Dimensional Discourse on Arbitrator Diversity. Kluwer Arbitration Blog. http://arbitrationblog.kluwerarbitration.com/2018/07/10/true-diversity-is-intersectional-escaping-the-one-dimensional-discourse-on-arbitrator-diversity/.

[11] Kidane, W. (2017). Does Cultural Diversity Improve or Hinder The Quality of Arbitral Justice? Kluwer Arbitration Blog. http://arbitrationblog.kluwerarbitration.com/2017/03/31/does-cultural-diversity-improve-or-hinder-the-quality-of-arbitral-justice/.

[12] Greenwood, L., & Baker, C. M. (2015). Is the balance getting better ? An update on the issue of gender diversity in international arbitration. Arbitration International, 31(3), 413‑423. https://doi.org/10.1093/arbint/aiv034.

[13] Supra note 11.

[14] Cohen, P., & Nappert, S. (2017). The march of the robots. Global Arbitration Review Online.

[15] Supra note 1, 1248-1250.

[16] Many authors have underlined the rising criticisms directed at the legitimacy of international arbitration, and practitioners are also aware of it. See Waibel, M., & Wu, Y. (2017). Are Arbitrators Political? Evidence from International Investment Arbitration; Florescu, C. I. (2018). REPORT ON THE DIVERSITY ROUNDTABLE AT VIENNA ARBITRATION DAYS 2018. Law review (Romania), 8(1), 42‑59. http://www.internationallawreview.eu/article/report-on-the-diversity-roundtable-at-vienna-arbitration-days-2018, Greenwood, Davis etc.

[17] That’s why Mr Yusuf, a former Vice President of the International Court of Justice, warned the field in regard to African actors, by pointing out that “if the arbitration community do not welcome Africans, Africans will reject it”, See “London:  Honouring  Judge  Abdulqawi  Ahmed  Yusuf”(16  October  2015) Global  Arbitration  Review<www.globalarbitrationreview.com>.

[18] Supra note 8, 308.

[19] Benjamin G. Davis, while organizing a survey on the diversity of American lawyers in the field among practitioners, came to the same conclusion when he noticed that “so few American lawyers with disabilities were noted that it seems they constitute a very small number; so few self-identified American LGBTQ were noted that it seems they also constitute a very small number” in Davis, B. G. (2014). Diversity in International Arbitration. Dispute Resolution Magazine, 20(2), 13-17.  He argued for the collection of data regarding these categories to promote their visibility.

[20] Diversity in arbitration. (2021). ICC – International Chamber of Commerce.  https://iccwbo.org/global-issues-trends/diversity/diversity-in-arbitration/; LGBTQIA diversity. (2021). ICC – International Chamber of Commerce. https://iccwbo.org/global-issues-trends/diversity/lgbtqia-diversity/.

[21] Crenshaw, K. (1989). Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics. University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8.http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8.

[22] See supra note 10.

[23] Ibid.

[24] Polonskaya, K. (2018). Diversity in the Investor-State Arbitration: Intersectionality Must Be Part of the Conversation. Melbourne Journal of International Law, 19(1), 259-298,  http://classic.austlii.edu.au/au/journals/MelbJIL/2018/9.html.

[25] Supra note 10.

[26] Davis, B. G. (2020). American Diversity in International Arbitration: New Arbitration Story or Evidence of Things Not Seen. Fordham Law Review, 88(6), 2143-2154. https://heinonline-org.acces distant.sciencespo.fr/HOL/Page?lname=&public=false&collection=journals&handle=hein.journals/flr88&men_hide=false&men_tab=toc&kind=&page=2143.  See in particular: “This Essay suggests that the unseen presence of blacks and other underrepresented groups (…) in the shadows of the development of international arbitration law in the United States helps us to see that diversity, while unrecognized, has been inherent in American international arbitration for hundreds of years.”, p. 2144.

[27] Ibid, 2153.

[28] Ibid.

[29] Interestingly, the ERA Pledge Chairs are aware of the current discourse on diversity as Justin D’Agostino MH explained at the GAR’s ERA Pledge Award 2022 the latter had been expanded to recognize all diversity initiatives, listing ethnicity, race, disability, age or sexual orientation in addition to gender. See Sanderson, C. (2022, April 1). Record turnout as GAR Awards return to Paris. Globalarbitrationreview.com. https://globalarbitrationreview.com/record-turnout-gar-awards-return-paris.

[30] Greenwood, L. (2013). Unblocking the pipeline : achieving greater gender diversity on international arbitration tribunals. Greenwood Arbitration, https://www.greenwoodarbitration.com/publications. Greenwood, L. (2017). Tipping the balance – diversity and inclusion in international arbitration. Arbitration International, 33(1), 99‑108. https://doi.org/10.1093/arbint/aix001.

[31] We are speaking here of mandatory sport arbitration, e.g. in the football sector with the FIFA, or for an example at national level, the mandatory arbitration for the employment-disputes in the US.