This article is written by Kanika Upadhyaya who is pursuing Certificate in Arbitration: Strategy, Procedure and Drafting from Lawsikho.
Gender Equality and Women Participation debates have rapidly increased since inception of Feminism and over time has gained traction to be associated with nearly all other socio-cultural dimensions. Each Country takes pride in highlighting pivotal role of women holding key positions and accomplishments in Sports, Economy, Academics, Politics or Scientific Developments. Yet even after ratifying Women Empowerment based International Conventions and Guidelines, no one can deny the fact that Gender Discrimination still persists far and wide across globe.
Judiciary, the Institution of Justice too is not immune from Gender Discrimination criticism. It is astonishing that Justice is symbolized by a blindfolded lady, however practically Courts and Judicial Setup is riddled with archaic Male Dominance. Arbitration, in the recent past has gained prominence over taxing Litigation and is rapidly expanding owing to speedy resolution and lower costs. Still, it is to be noted that this Mechanism too is plagued with Gender Prejudices when skewed Women involvement ratio can be seen in Arbitral Tribunals as well as Courts. It cannot be said that this issue was never raised before Globally Renowned Arbitral Institutions. Recently LCIA coined a new term “RAGE” coined to address the issue. “Alliance for Equality in Dispute Resolution”, UN SDG’sand “ERA Pledge” are some other steps taken with aim of comprehensively tackling with disparate participation.
Nevertheless, after all, Debates, Discussions, Literature and Suggestions the question of implementation arises. Merely criticizing paucity of talent while consciously turning a blind eye to viable solutions available is nothing but unintelligible.
This article examines the reasons of Low Women Participation, Significance of Women in Arbitration and Prospective Solutions to bring changes in situation.
Statistics of women arbitrators
It is evident that for a while, Women lawyers hardly reached to distinguished positions in Law Firms and other Organizations. Recently, there is a spurt in International Arbitration and a positive response from side of Arbitral Institutions can be seen in terms of Women Arbitrators appointment. Statistics indicate for last 2-3 years, a slight increase in Women Arbitrator Appointment has been there. It could be said that ERA Pledge has been honored to a limited extent.
As for the year 2018, Stockholm Chamber of Commerce (SCC) has seen the highest number of appointments (27%), followed by Vienna International Arbitration (VIAC) (24.6%) and London International Court of Arbitration (LCIA) (23%). International Chamber of Commerce (ICC) rate was 18.4%. However, Hong Kong International Arbitration Centre (HKIAC) and Singapore International Arbitration Centre (SIAC): 2 distinguished Arbitral Institutes in Asia have not furnished total appointment details. Germany too has aced list of International Arbitrations but details of its Women appointment are not provided. Institutional Appointments which have been predicted as decisive for promotion of Women Appointment are satisfactory. VIAC sets record of highest Institutional Appointments (43.8%) while in Asia, SIAC soared to 34.3%.
For the year 2019, ICC Report highlighted nearly double rate of total Women Arbitrators Appointment, mostly because of Arbitral Institutes lead. Still total appointments came upto mediocre 21%. LCIA (29%) trumped with highest women Arbitrators appointment followed by ICDR (24%) and ICC (21%).
Hence, the overall trend of Women Arbitrators Appointment can be summarized as:
2018 (in %)
2019 (in %)
After perusal of statistics in an unparalleled COVID-19 Pandemic, it is clear that demand of Arbitration is growing leaps and bounds and that such onset would have necessarily required the Arbitral Institutions to use their entire workforce for maximum number of cases. As seen above, indices of all Arbitral Institutions show an increase except VIAC, but this is just a piece in a large picture. Had the Institutions actually employing all probable means of settlement, why would overall participation would be average 21%? This indicates that Male Arbitrators are comparatively recruited more in numbers not just they were already dominant in Arbitration but also that still more Men are being hired for other posts like Emergency Arbitrator etc. SIAC, ICDR display an increase but minimal which doesn’t support the long term gender diversity goal. When can be a better time to actually realize full potential and remove the barriers of Women Inclusion? Or can it be said that Institutions not consider this time good enough for increasing diversity in field of Arbitration?
Why such low number of women in arbitration?
On careful reading of relevant literature, it was realized that merely making arrangements for an increased number of women recruitment in high paying services and other social domains is piecemeal. Gender Inclusion and Diversity is a much broader concept and is entwined with several other factors like Regional, Cultural, and Ethnic Diversity. Thus to bring in a real parity, all these elements are to be worked upon in an encompassing way. Almost every day, one hears or reads about reasons of purporting Gender Discrimination. Reasons for less strength of Female Arbitrators are no different.
One of the predominantly pervasive factors is innate bias of male superiority deeply rooted in society which propagates several other manifestations of prejudices regarding a lady’s competence to handle matters presented for Arbitration, rendering even best procedure of Appointment futile. Till present time, women are foreseen primarily shouldering Familial and Social responsibilities, and in the process unable to commit time and energy for tedious work, requiring longer stay in offices or frequent travels. This is stark reality of those Women Arbitrators who couldn’t rejoin their past position at work after opting for a sabbatical to honor private commitments. The worst part is that present educated generation does understand this unconscious stereotyping is erroneous, yet never took any active steps to rectify it.
Hence in many instances of exclusions, scarce amends was a ground to justify male chauvinism in Arbitration as appropriate. Categorizations made on basis of such prejudices appeals to sense of security and convenience on part of Clients, Co Arbitrators and others involved, resulting in establishment of unequal, difficult preconditions for women’s qualification and appointment as an Arbitrator. Even if a lady is appointed as an Arbitrator, she is prone to sexual harassment or psychological cruelty. There is no shortfall of skilled Arbitrators but Clients are discouraged to select Female Arbitrators or it can be said that an individual Client cannot bring a significant change since he might be unaware of ongoing crisis. However, in numerous incidents, Clients looking for Male Arbitrators belonging to same class, community etc. heightens practice of this misdeed.
Co -Arbitrators too, comprising mostly men, desist to promote or refer to Women Arbitrators Participation and Appointment. Instead phenomenon of Constant Reiterated Appointment is followed to strengthen its grip. Repeated Appointment of Women Arbitrators seldom occurred, leaving them at mercy of male counterparts. Under Representation/“Pipeline” severely curtails possibilities for women to climb ladder of success in Arbitration.
Another compelling factor associated closely with representation is Lack of Transparency in selection of Arbitrator. Confidentiality and other essential clauses to maintain sanctity of the Proceedings are much welcomed but not at the cost of it being detrimental to women inclusion. Parties especially in financial matters want to repose trust in an experienced, well verse Arbitrator who knows the trend of the industry. Dearth of information about Women Arbitrators by communication through informal channels, not adapting Artificial Intelligence or Centrally Standardized Modes for dispensing necessary details, distorting or absence of the objective details and lack of requisite qualifications or experience hinders the selection possibilities. Rarely any woman could be portrayed as Role Models for Potential Clients as well as recognition among known successful Arbitrators minimal.
It is unimaginable that with such advanced infrastructure and aptly organized procedural framework of Arbitral Institutes in place, an ancient, conservative notion managed to creep in and pervade across all positions of Arbitral Institutions. Underutilization of known alternatives whose names are otherwise much hyped is simply unjustified. Co-Arbitrators too if take up a whole hearted initiative could make huge difference to the existing norm. The foremost challenge for one is to counter and overcome its subconscious bias to let women enter the Arbitration arena. No one can present any tenable causes as to why existing scheme to be continued. Visibility barrier could be dealt with if institutions and Standardized Mechanisms used in full swing for catering to needs of client in an efficient manner with women inductive approach.
Why need women-centric arbitration?
Someone rightly said that “Successful Woman is one who builds a firm foundation with same bricks others threw at her”. A working woman is still relegated to back stand presuming lack of grit to indulge in complex matters. However has anyone thought that woman is outsmarting men in various disciplines, at the same time juggling responsibilities of both work and home: how dynamically talented she can be? As discussed above, reasons of low women contribution aren’t unfamiliar, similarly, views highlighted for improving women inclusion in Arbitration also are not unconventional, unheard.
The fundamental truth of Arbitration being an attractive alternative since thrust is on the contesting parties who themselves are engaged in Dispute Settlement. Arbitrators though many a time come from legal background; there is no express bar regarding qualification of an Arbitrator. Such progressive, beneficial outcome has been contemplated to formulate suitable provisions and rules, keeping in mind that Arbitration Proceedings should not be similar to strictly Statute driven Litigation, rather emphasis shall be on human emotions. Hence Arbitrators who view, react and opine differently to a situation are very much needed. It will bridge gap of understanding expectations and empathizing with the Client, irrespective of the stressful environment, in order to win Client’s confidence and navigate Proceedings in the right direction. Women can be of much assistance in all such situations. Certain category of Clients may feel comfortable opening up to Lady Arbitrators which shall be crucial for deciding the next step to be taken and apt decision to be made.
Variety of Arbitrators presents a bigger lot for selection to the parties, who can choose most suitable Arbitrator and in one way foster Arbitration. Emerging Expertise and Fresh Knowledge aids both immediately as well as long term plans. Another advantage is that if Client being satisfied in hindsight about picking a proper Arbitrator shall lend his utmost cooperation and accept the Award of Arbitral Tribunal. It shall be a feather in cap of the Institution for hiring adroit professionals, providing multiple conflict settlement skills at a single place, adding substantial value to its goodwill.
Another notable advantage accepted by one and all is that a decision made by an individual is based on his very own thinking and thus highly susceptible to anomalies and omissions. This risk in contrast can be substantially reduced if people of varying beliefs come together to discuss the bone of contention before arriving at a conclusion. All relevant elements and outcomes can be discussed at length to enhance quality of decision made. Hence Arbitral Institute may improve upon its decision making abilities by incorporating and inviting viewpoints of Women Arbitrators who might have a distinct yet prudent observation of same facts and circumstances. Such Awards reflecting the application of adequate logical minds is easier to take in and is often less challenged.
What can be done?
Solutions never occur themselves. An effort has to be put in by those who are bothered. The pathetic outcome of this discrimination is Women instead of highlighting their concerns for claiming their equal share, get bogged down by socio-financial pressures to surrender and accept whatever comes their way. Women, who face difficulties in retaining their previous posts, several times readily agree for far smaller stations. Another scenario of constant flattery and showcasing male counterparts persists across length and breadth of Arbitral Institutes. The rationale behind these superfluous adaptations is that Women need to earn and be independent even at a lower post.
They might end up losing their job or face other dire consequences if they outrightly argue with their male colleagues for equality in work. On the other hand, if they tend to lean in and balance adverse time, maintaining cordial relations in organization, perhaps their counterparts may accept their worth some day as an Arbitrator. But the pertinent question is can men be subjected to same treatment if they need to take a break from work? Will they be able to toil hard and request for inclusion incessantly to get what is rightfully theirs? How can a workplace actually progress when deplorable work culture exists? Ways of improvement are not unique which will be hard to execute, a dedicated endeavour on part of each and every Participant is need of hour.
To start from base, since an individual is a bundle of both logic as well as emotions, first and foremost each party involved needs to train its mind to face and counter its prejudices and set it aside at workplace. Removing undue preconditions, making work environment more women-friendly shall boost morale of all employees for giving in their best, positively impacting output and repute of Organization. Organization may initiate as well as control spreading bias by its Policies, Workshops, Mentorship etc. for encouraging Women to take up managerial and leadership roles and according befitting recognition and accolades for good work. Women Role Models of similar fields be emphasized upon to stimulate confidence of Female Arbitrators. Open discussions without inhibitions might bring up veritable factors not thought about as well as release inherent bias and learn to respect other’s stance.
Institutions may bring in a significant transition by balancing both Party Autonomy and equality ensuring non-partisan selection via Artificial Intelligence Software etc in order to blind screen or anonymously elect suitable candidate as per his/her qualification and ensuring at least 1 Woman Arbitrator is present in Panel of Arbitrators wherever possible. Accountability in any manner poses as an assurance for refinement. Law Firms shall strive to increase number of Women Arbitrators by positively responding to their level of responsibilities and providing them with a flexible work schedule along with requisite aid in times of need.
In House Counsels, External Lawyers, Human Relations Manager, Co Arbitrators particularly existing Woman Arbitrators all share this responsibility to promote new Female Arbitrators and review growth periodically. Proper Transparent Verification and Publication means will generate awareness among prospective clients to elect Lady Arbitrators solely on basis of merits. Each well established Institute may venture within its professional network to give chance to Woman Arbitrators. Reprehensible Practices compelling Women to plead to their Male Companions for place in Arbitration shall be stringently dealt with, perhaps with penalty attached for deterrence. Separate Neutral Body to look into equal appointment opportunities also seems a plausible alternative.
LCIA, ICC, SIAC and many other prominent Arbitral Institutions have extended their support to cause of increasing Women Participation and since then seen an upward trend. Arbitral Women laudable efforts lead to Equal Representation in Arbitration (ERA) Pledge being taken by 4000Participants. Other noteworthy instances are rise of Gender Equality (GQUAL) Global Campaign, Alliance for Equality in Dispute Resolution, The ADR Inclusion Network Pledge and The JAMS Diversity and Inclusion Rider, each with goal of leveling discrepancies in the appointment of Arbitrators. Legal Database, Directories and other Artificial Intelligence modes to be further upgraded for better results and shall be used by all eminent Institutions. This shall motivate other Arbitral Institutes to follow in their footsteps and adopt latest technology for fair election of Arbitrators. Society at large to be reminded time and again benefits of Women Education and Employment so that successive generations may evenly contribute to Nation’s Development.
COVID-19 is a time when Arbitration can flourish. This is very well reflected in sudden multiplication in number of cases being taken up by Arbitral Institutions. It cannot be denied that Women too shared a chunk of increasing caseload, however much scope of improvement exists. Developed Countries Institutions have very well resorted to adopting advanced technological tools for appointment but eventually it depends on how frequently it is brought into play and whether it is upgraded with passage of time to meet novel challenges. What justification can be given for such dismal Women inclusion? Is it because of increasing competition? Not really since it shall anyway increase with men practioners joining the avenue. Rather to speak raw truth, the actual reason might be the egoist perception of masculinity that allowing a woman to stand at an equal footing is to be subjugated by her. But isn’t such thinking redundant as per current time? Sharing views and workload with a woman colleague not means that it reduces one’s credibility or status at work front. Sexual Harassment and other forms of mental abuse are abhorrent to any civilized society’s conscience, but it is utterly shocking that such barbaric crimes are committed against Women Arbitrators in Broad daylight, without any hesitation.
Unnecessarily pinpointing loopholes in a woman’s performance, outrightly terming her “incapable”, forcing her to be complacent and adjust to whatever is given to her, making her go through ordeal to prove her merit every now and then all stems from the 18th century orthodox thinking of men being breadwinner while ladies are docile caretakers. Don’t Men employed in top-notch organizations have a family? Aren’t they supposed to bear some family responsibilities? It is cliché quote that behind every successful man, there is a woman. So why can’t a man assist a woman to progress at work? The worst scenario is women giving up and readily compromising with lower positions and that existing Women Arbitrators not aiding or raising issue of women empowerment at workplace. Strong Networking and Employee Groups can solve many pertinent issues to a large extent.
Law Firms are a part of society and as a responsible citizen need to overhaul its work culture to make it more gender-equitable. Mentorship, Rewards, Workshops for skill development and certain additional facilities like crutch for kids of Women employees might bring in much results way apart from what one can predict. It is simple that any employment relation has to be mutual for it to be successful in the end. Necessity is mother of invention so start with an experiment of providing requisite facilities to women. For positive results, apt hard work and investment is required. Rigid work schedule and ouster as ramification of disagreement is strict no-no for any sensible employer, who can foresee huge gain of engaging women arbitrators.
Egregious expectations not only discourage existing employees of organization but also lower credibility in eyes of market. Repeated Appointments should be precisely restricted to avoid any confusion and while scrutinizing names and personal details likely to trigger bias in mind of Client should not be provided for ensuring proper election. Qualifications and other essential information about Lady Members of Arbitral Institutions shall be put up on official websites and other public portals to spread awareness about their good work and encourage people to opt them for their respective disputes. Experience is indispensible in any profession but its foundation lies in amicable working conditions. Men are competent and possess invaluable expertise over the years, but they are just a fraction of society. How can decision of like-minded consortium can be fathomed wise enough in all possibilities? Women need not request their male colleagues for work since it raises doubtful questions about their competence.
Arbitration is an excellent discipline and has a great future ahead, provided it takes gender quality issue seriously and sincerely makes the necessary amends at all possible levels.
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