The ERA Pledge publishes Checklist of Best Practices and Corporate Guidelines to improve representation of women in international arbitration
Under-representation of women in international arbitral tribunals led members of the arbitration community to draw up a pledge to take action, through the Equal Representation in Arbitration Pledge (the “ERA Pledge”). The ERA Pledge aims to (i) improve the profile and representation of women in arbitration, and (ii) appoint women as arbitrators on an equal opportunity basis. As of 27 November 2020, the ERA Pledge has been signed by 4,458 individuals and organisations, including Linklaters LLP.
In October and November 2020, the ERA Pledge published a Checklist of Best Practices and a set of Corporate Guidelines to provide its signatories with a practical framework of best practices to implement it and work towards the goal of gender parity.
Checklist of Best Practices for the Selection of Arbitrators
The Checklist of Best Practices for the Selection of Arbitrators (the “Checklist”) was launched in October 2020 and outlines the best practices, methods and tools available to parties and their counsel for selecting arbitrators. Importantly, the Checklist relies on objective criteria that promote both efficiency and diversity in arbitration.
The Checklist consists of five components:
- The first tackles preliminary considerations that parties must be aware of once a dispute has arisen, which may ultimately influence the selection of arbitrators. These include factors such as whether the arbitration would be institutional or ad hoc, the number of arbitrators, the qualifications of the arbitrator(s) (may be expressed in the clause or necessary by nature of the dispute), and methods of appointment.
- The second deals with the parties’ selection of the co-arbitrators. The Checklist provides a number of tools that parties may consider in selecting their candidates, including outlining selection criteria (and highlighting diversity of arbitrators in accordance with the ERA Pledge) and listing out institutional websites containing directories of arbitrators.
- The third relates to the parties’ appointment of the President of the tribunal. Similar to the second component, the Checklist outlines helpful considerations that parties may look into when choosing the President, which, in addition to the selection criteria employed in choosing co-arbitrators, must include management skills.
- The fourth outlines what parties can do with respect to the appointment of an arbitrator by arbitral institutions or a judge. In this regard, parties may potentially submit names or state their preferred arbitrator’s qualifications or methods of appointment (such as the list system).
- Finally, the fifth component reminds parties and their counsel to take into consideration the personality and experience of the co-arbitrators to ensure balance and good dynamics within the tribunal.
The Checklist highlights the importance of the parties taking a more active role in the arbitrator selection process. By observing these best practices in selecting arbitrators and working together with the different stakeholders of the arbitration community, parties can ensure that the arbitrator selection process is not only efficient but would also result in diverse candidates.
The Corporate Guidelines (the "Guidelines") were published in late November 2020 and provide a non-binding framework that signatories of the ERA Pledge can adopt to implement the ERA Pledge in their organisation. These Guidelines were produced with the support of several multinational companies including Airbus, AngloAmerican, BP, Chevron, ConocoPhillips and Shell Corporation, and third-party funders such as Burford Capital, Omni Bridgeway and Vannin Capital.
The Guidelines include a list of actions to consider in order to encourage better representation of women in arbitrator appointments. These guidelines are structured in three categories.
When the client is involved in the appointment of arbitrators, they may wish to:
- consider appointing women on an equal opportunity basis;
- request that the list of potential candidates includes a fair representation of women, for arbitrators and President of the tribunal, and speak up when that is not the case; as well as
- consider internal reporting on diversity data; and
- set internal targets to improve diversity in these appointments.
The Guidelines also encourage using the ERA Pledge’s female arbitrators search tool (available here) to identify suitable candidates.
When selecting external counsel teams for their arbitrations, organisations are encouraged to consider the diversity within the teams of lawyers under consideration.
At the workplace, organisations should share the ERA Pledge internally, to ensure their teams are familiar with the issues and to the aforementioned guidelines. They should also endeavour to provide equal opportunities to female colleagues with respect to external arbitration events and raising their profile.
The Guidelines will not only assist signatory companies in implementing the Pledge. They can allow the establishment of a virtuous circle in which companies become driving forces on the movement toward diversity, by encouraging these organisations’ external legal counsel to make additional efforts to promote diversity in the arbitral process.
Final thoughts on the ERA Pledge and diversity in international arbitration
The ERA Pledge reports that between 2015 and 2019, the percentage of women sitting on arbitral tribunals as arbitrators increased from 10 to 21.5%. This positive development encourages the development of initiatives like the ERA Pledge and encourages actors in international arbitration – organisations and individuals alike – not to relax their efforts but rather increase them.
In addition, while the ERA Pledge focuses on the representation of women, we recognise there is still much room for improvement in terms of broader diversity in international arbitration.
We hope that with commitment to the initiatives discussed above, female and broader diversity appointments will increase, which will enrich international arbitration and its community.
To learn more about the ERA Pledge, please click here.