Over the last few decades, significant progress has been made by women in the legal profession and in the field of international dispute resolution.1 This is encouraging and reassuring for women entering the law and younger members of the profession. Nevertheless, a significant gender gap continues to exist at the senior levels of the legal profession and judiciary.
It is estimated women make up 20% of the partners in the dispute resolution departments of law firms globally. They also make up 20% of High Court and Court of Appeal judges in the UK, and more in other countries like the US and the Netherlands, where the figures are over 30% and 40% respectively. In international arbitration, women make up around 10% of arbitrator appointments in institutional proceedings, reaching as high as 16% for the LCIA and ICDR in 2015. Most of these female appointments were made by the institutions rather than parties. The ICC International Court of Arbitration reported 10% female appointees in 2015, as co-arbitrators in 43% of cases, sole arbitrators in 32% of cases and chair in 25%. Of these female appointees, 54% were made by the ICC Court as opposed to parties.2
Similarly, in the broader public international law context:
"… as of September 2015 the Inter-American Court of Human Rights has no female judges; the International Criminal Tribunal for the former Yugoslavia has 17 permanent judges and only 2 are women; the Human Rights Committee has 18 members and only 5 are women. Moreover, a study of the numbers shows that this current imbalance has affected most of these international bodies since their establishment. For example, of the 40 individuals who have held positions within the International Tribunal for the Law of the Sea since its inception, only 1 has been a woman; and of the 52 Special Procedures of the Human Rights Council, 19 have never been held by a woman, including 11 that have been held by more than one mandate-holder have never been led by a woman. Some of these positions have been in existence for decades."3
The progress made within the legal profession has narrowed the gender gap; women and men are moving in the direction of equal representation in the senior levels of the profession. 20% female partners in law firms is, after all, infinitely better than none. But the pace of movement remains unacceptably slow and there is no guarantee that the gender gap will entirely self-correct over time.
Indeed there is evidence to the contrary. Women comfortably outnumbered men in my own 1993 graduate law school class, as in my associate class year of 1994. Twenty-two years later a disproportionate number of those men compared to women have advanced to partnership, the judiciary or other senior roles. Equal numbers of highly intelligent and talented women and men have been entering the law for almost three decades. Yet at best one woman for every five men is remaining in the profession long-term and advancing to a senior role.
In response to the continuing gender gap in law, a large portion of men and women in the legal profession are continuing to take steps further to nudge the progress of gender diversity. Two such steps are the GQUAL Campaign4 and the Arbitration Pledge.5 Both initiatives are designed to improve equality in representation of women and men in international courts and tribunals.
Within the field of dispute resolution, the gender gap on international courts and tribunals, as opposed to national courts and the profession more broadly, is particularly problematic. There is a multitude of reasons for this but two stand out. First, these bodies are usually comprised of senior statespersons and there are, as a direct consequence of the aforementioned gender gap in legal practice, more senior experienced men than senior experienced women in the profession across the globe. Secondly, appointments to arbitral tribunals and, in many cases, international courts, fall outside the scope of national judicial equality and diversity policies.
GQUAL and the Arbitration Pledge promote equal consideration of women for appointment to positions on international courts and tribunals. Both initiatives call upon all stakeholders in the international dispute resolution community, including practitioners, corporates, states, institutions and educators equally to consider men and women for certain roles and appointments. Neither initiative introduces or proposes quotas or target numbers of female appointees; they only promote equal consideration of male and female candidates. Both set out specific commitments to ensure that equal consideration.
The Arbitration Pledge, in full, requires that:
"As a group of counsel, arbitrators, representatives of corporates, states, arbitral institutions, academics and others involved in the practice of international arbitration, we are committed to improving the profile and representation of women in arbitration. In particular, we consider that women should be appointed as arbitrators on an equal opportunity basis. To achieve this, we will take the steps reasonably available to us – and we will encourage other participants in the arbitral process to do likewise – to ensure that, wherever possible:
- committees, governing bodies and conference panels in the field of arbitration include a fair representation of women;
- lists of potential arbitrators or tribunal chairs provided to or considered by parties, counsel, in-house counsel or otherwise include a fair representation of female candidates;
- states, arbitral institutions and national committees include a fair representation of female candidates on rosters and lists of potential arbitrator appointees, where maintained by them;
- where they have the power to do so, counsel, arbitrators, representatives of corporates, states and arbitral institutions appoint a fair representation of female arbitrators;
- gender statistics for appointments (split by party and other appointment) are collated and made publicly available; and
- senior and experienced arbitration practitioners support, mentor/sponsor and encourage women to pursue arbitrator appointments and otherwise enhance their profiles and practice."6
The Arbitration Pledge was launched in London in June 2016. Since then, more than 1,200 individuals, institutions, corporates and law firms have signed up to it. A similar number have signed up to GQUAL.
The appeal of both initiatives is that their shared objective is simple: to promote equal consideration of women and men. There remains a challenge to attaining equal representation of men and women on international courts and tribunals, in part because of the continuing disparity between pool sizes. Nevertheless, the pool of suitably qualified women in international arbitration is simply not as limited as the appointment statistics suggest; 20% of women partners in dispute resolution practices is double the 10% level of women arbitral appointments. The fact is that the decision-makers deciding those appointments – mostly parties and their counsel – are unnecessarily narrowing the pool even further. One factor that drives this is the existence of an unconscious bias, or simply a habit of appointing and reappointing the same individuals of a certain age, profile and background, who are more often than not men.
Arbitral institutions had already improved their appointment diversity statistics simply by making an affirmative effort to ensure that they consider women candidates as well as men. This has resulted in a practice of appointing (and indeed reappointing) from a broader range of ages, profiles and backgrounds. The consequence has been a growth in the arbitrator pool of women and men, including younger men as well as women who were not previously considered.
Pursuant to the Arbitration Pledge, parties and counsel involved in the appointment process commit to doing the same. This, in turn, increases the pool of candidates across the board giving parties and their counsel as well as institutions greater choice.
Ultimately, if young women entering the law are to remain long term, they need to be able to see a future course that offers them equal opportunities to men. The more women arbitrators and judges that these younger practitioners appear in front of in international courts and tribunals, the stronger the message becomes that there are indeed equal opportunities at all levels in the law, not simply at law school and junior associate level in law firms. And that is a powerful new reason for those women to decide to stay in the law long term.
- The English Law Society and Bar Council have recently sought to memorialise women's progress in the law in general in England. The First 100 Years is a ground-breaking history project, supported by the Law Society and the Bar Council, charting the journey of women in law since 1919. More information is at http://first100years.org.uk/
- The Pledge", by Alison Ross, Global Arbitration Review, 18 May 2016 at http://globalarbitrationreview.com/article/1036332/the-pledge.
- From GQUAL Campaign website: http://www.gqualcampaign.org/about-gqual/