Women in Arbitration, An Invitation to Keep Reinventing the Future We Deserve

Author: Nicole Celorio Acosta*

Several studies indicate that most users of international arbitration do not think that gender diversity in arbitral tribunals is important to the quality of its decision-making or, at best, are unsure about its importance.[1] This post provides some perspective on how those notions are misplaced.

In the arbitration field, there is a lot of talk about the empowerment of women, but little change. This is particularly so when it comes to arbitral appointments. Occasional articles, postings and webinars discuss the lack of female representation in international arbitration. Throughout the years, possible reasons have been suggested, statistics have been given, and awareness has been demanded. However, the issue persists.

According to data collected in the Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings by the International Council for Commercial Arbitration, since 2015, the proportion of female arbitrators has almost doubled from 12.2% in 2015 to 21.3% in 2019.[2] The study gives hope, but from the perspective of a young professional, the underrepresentation of women leadership in arbitration is still highly disappointing. The million-dollar question is always: why?

There are two apparent limitations to increasing the diversity of arbitration appointments, which are: (i) the unavailability of female arbitrators with sufficient experience at present and (ii) impediments to the appointment of experienced female arbitrators.[3] I believe that in both cases, unconscious bias takes a predominant role. The unavailability of female arbitrators with sufficient experience is caused by “a pipeline leak” and a lack of women retention in the legal profession.[4] Today, studies demonstrate nearly half of associates in law firms are women, but less than a third are partners.[5] For younger professionals, this is hard to deal with. It is difficult to picture yourself with a future in a practice that has limited role models. For historical reasons, women are not perceived as strong as men, regardless of their qualifications. Furthermore, and this is not a secret, unconscious bias is also manifested in performance rewards, where men are paid more than women.

According to the testimony of an anonymous arbitrator that was surveyed for the Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings by the International Council for Commercial Arbitration:

“Female lawyers invest less time for non-billable work and traveling once they have children because they wish to spend more time with their children. They then have a competitive disadvantage compared to male lawyers who spend more time building up their career. This is true for every high legal position such as becoming a partner in large law firms. And since parties are (understandably) reluctant to appoint arbitrators who are not partners in law firms, not being a partner makes it more difficult to be appointed.”[6]

In this context, underrepresentation of women must still be understood, not as a choice, but as an imposition. Women should not be obliged to decide between building a family and a career.

Regarding the barriers to select experienced female arbitrators, unconscious bias is also present particularly in the tendency of individuals to appoint arbitrators “in their own image.”[7] Under this theory, parties appoint arbitrators who are more likely to sympathize with their positions and talk the same talk.[8] This is an issue since female talk is not male talk. Obviously, the threshold is high. Especially since, considering men, just as women, have developed in a historical context that pushes you to believe man were made to lead and women to follow. We must address that balance.

This should pose great international concern since women empowerment is fundamental for the global economic development.[9] Gender discrimination poses moral, economic, and social implications we must all be concerned about. In my short journey in the arbitration field as a young arbitrator, my work was also unfairly prejudiced by implicit bias. I must confess I had to live it firsthand to understand it. Understand, we must open our eyes, take space, and reinvent the future we want to see in the arbitration field. I believe Madame Lucy Greenwood was correct when she proposed blind arbitral appointments:

“In order to address the woeful underrepresentation of women on international arbitration tribunals in any meaningful way, there needs to be a complete shift in the way that international arbitration practitioners approach this issue. We have closed our eyes to this issue for too long. We need to educate our colleagues to understand that we are all prejudiced and shaped by our experiences in life, but that once those prejudices are identified, they can be corrected for. Until such time as we are confident in our abilities to identify and correct for those prejudices, the most effective and pragmatic solution is to remove the information which triggers the prejudices, namely by removing identifying gender information from lists of potential arbitrators. This will prevent irrelevant information from distorting our ability to make the most important decision in every dispute: selecting the right arbitrator. It may take a system of blind appointments to enable us to see our way through this issue.”[10]

However, I believe it does not end there. You may be appointed as arbitrator, and still be impeded from arbitrating a dispute when working for a conservative firm. There is no easy answer to this concern. However, we must dare to find different results in different approaches. The arbitration community would do well to be concerned not only about today’s scarce few women arbitrators, but also the young women that will step into their shoes in a few decades. All practitioners should take chance in resisting the historic framing and reinventing future. This is an invitation.

To conclude, I would like to borrow an anecdote from Madame Noor Kadhim:

“In the 1980’s, in classical music, a certain Ms. Abbie Conant applied for eleven trombone positions advertised in Germany. For those familiar with this instrument, the trombone was historically perceived as ‘masculine’. Therefore, Conant received only one audition invitation, and it was, to add insult to injury, addressed to a “Herr Abbie Conant” (i.e. ‘Mr’). She auditioned along with 32 men, behind a screen. It was only when a selection panel listened to her playing behind that screen, without knowledge of her gender, that they were enthralled by her music and selected her. To their amazement, Ms Conant was a woman. She would never have been selected had she been in front of the screen. Dear Sir and Madame, it should not be this way. Neither in life, nor in arbitration.”[11]

* Nicole Celorio is a student editor for the American Review of International Arbitration and an LLM Candidate at Columbia Law School. Ms. Celorio has practical experience and special interest in international arbitration, commercial litigation, and civil litigation. She has successfully represented clients in international arbitration and litigation proceedings. She has served as secretary for arbitral tribunals and, most recently, she was appointed as arbitrator becoming one of the youngest to do so in Mexico. Ms. Celorio is a member of Young Arbitrators Forum of the International Chamber of Commerce, Youth Forum in Arbitration of the Mexican Arbitration Center and National Chamber of Commerce in Mexico, Institute for Transnational Arbitration and Young OGEMID.

[1] International Council for Commercial Arbitration, Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings 9 (2020); see White & Case and Queen Mary University of London School of International Arbitration, 2018 International Arbitration Survey: The Evolution of International Arbitration 16 (2018); see also Berwin Leighton Paisner, International Arbitration Survey: Diversity on Arbitral Tribunals. Are We Getting There? 8 (2017).

[2] Report of the Cross-Institutional Task Force on Gender Diversity, supra note 1, at 16.

[3] Lucy Greenwood, Unblocking the Pipeline: Achieving Greater Gender Diversity on International Arbitration Tribunals, 42 ABA Int’l L. News (2013).

[4] See Lucy Greenwood & C. Mark Baker, Getting a Better Balance on International Arbitration Tribunals, 28 Arb. Int’l. 653, 654 (2012); see also Lucy Greenwood, Moving Beyond Diversity Toward Inclusion in International Arbitration, 2019 Stockholm Arb. Y.B. 93, 97 (2019).

[5] National Association of Women Lawyers, 2020 Survey Report on the Promotion and Retention of Women in Law Firms, at 6–8  (2019).

[6] Report of the Cross-Institutional Task Force on Gender Diversity, supra note 1, at 47–48.

[7] See, e.g., Greenwood & Baker, supra note 4, at 660.

[8] Id, at 660–662.

[9] See, e.g., U.N. Secretary-General, The World Survey on the Role of Women in Development 2014: Gender Equality and Sustainable Development, U.N. Doc. A/69/156 (Jul. 18, 2014).

[10] Lucy Greenwood, Could “Blind” Appointments Open Our Eyes to the Lack of Diversity in International Arbitration? 12 Transnat’l Disp. Mgmt., 9 (2015).

[11] Noor Kadhim, Dear Sir, where is the ‘Madame’? Taking the Pledge for Equality in International Arbitration, Kluwer Arbitration Blog (2016).