Last week my former professor Deborah Rhode published a piece in the Washington Post about the lack of diversity in the legal profession, particularly in the most “elite” or “prestigious” jobs. Now, lead author Susan Franck (Washington & Lee) and several collaborators have published an important complement examining original empirical data relating to diversity among adjudicators and counsel in international arbitration proceedings.
Although the “invisible college” of those involved in international arbitration is difficult to define, the researchers created an original data set using registrants for the International Council for Commercial Arbitration (ICCA) and examined diversity across several demographic categories. Among many interesting findings, their research revealed that only 17.6% of arbitrators were women, the average age of both counsel and adjudicators was 48, and arbitrators from the developed world were overrepresented relative to those from the developing world.
I particularly appreciated the article’s focus on the importance of diversity to perceived legitimacy and, ultimately, the functioning of the international arbitration system as a whole. International arbitration occurs because states consent to it, and such consent would be less likely if the identity of arbitrators led states to lose confidence in the process. As the authors explain: “States permit and honor arbitration proceedings, in part, because of their perceived utility; should those courts or legislatures believe that ICA is illegitimate or problematic, they retain the capacity to re-absorb those cases into judicial dockets.”
The article is available here. From the abstract:
As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the membership of the international arbitration community. Although defining the international arbitration community is challenging, rather than leave the “invisible college” unexamined, this Article offers one systematic glimpse into the global elites of international arbitration using data from 413 subjects who served as counsel and 262 who acted as arbitrators (including 67 investment treaty arbitrators). The median international arbitrator was a fifty-three year old man who was a national of a developed state reporting ten arbitral appointments; and the median counsel was a forty-six year old man who was a national of a developed state and had served as counsel in fifteen arbitrations.
In addition: (1) 17.6% of the arbitrators were women, and there was a significant age difference such that male arbitrators were approximately ten years older than women; (2) for those acting as international arbitrators, we could not identify a significant difference in the number of appointments women and men obtained; (3) depending upon how development status was defined, developing world arbitrators accounted for fifteen to twenty percent of arbitrators; and (4) for all measures used to analyze development status, arbitrators from the developing world received a statistically lower number of appointments than their developed world counterparts.
Recognizing the data revealed diversity in international arbitration is a complex phenomenon, the data nevertheless supported, rather than disproved, claims that international arbitration is a relatively homogenous group. Acknowledging that international arbitration may improve over time and diversity issues challenge other forms of dispute resolution, diversity levels in international arbitration were somewhat lower than in several national court systems but were generally reflective of diversity levels in other international courts and tribunals. The international arbitration community seems aware of the distortions. For all subjects, 57.5% either somewhat or strongly agreed that international arbitration experiences challenges related to gender, nationality, or age. Younger subjects and women were statistically more likely to identify such challenges as compared to older or male subjects; but subjects from states outside the Organisation for Economic Co-operation and Development (OECD) were less likely to identify challenges when compared to their OECD counterparts. Replication is necessary as the results may reflect a limited historical baseline of international arbitration global elites.
Given the self-identified concerns and the symbolic legitimacy of broader representation, the international arbitration community may wish to explore factors inhibiting full utilization of untapped talent and facilitate aims of procedural, and potentially distributive, justice. Structural and incremental strategies could then promote a sustainable international arbitration system for the future.