The recently published ICC Dispute Resolution 2020 Statistics, revealing that 946 arbitration cases were registered with the Secretariat of the ICC International Court of Arbitration in 2020. The number of confirmations and appointments of women arbitrators rose to 355, which the ICC reports represents 23.4% of all confirmations and appointments (total 1,520).
This paints an interesting picture, but one that is not altogether clear. The statement that “355 women arbitrators (were) confirmed or appointed by the ICC Court” could imply that 355 separate women were appointed. More likely, however, it means that women were appointed in 355 separate instances. While the ICC states that it generally does not appoint the same individual as arbitrator more than once per year, included among the 355 are 213 arbitrator confirmations. The ICC has not provided details as to the number of women who received appointments. The difference is between whether we are celebrating the appointment of 355 (the total), 142 (those appointed by the ICC Court), or maybe around 70 separate women.
I choose “70” because the ICC’s numbers are close to the case numbers that ICSID reported in January 2021 (https://icsid.worldbank.org/resources/publications/icsid-caseload-statistics). At Chart 17, one can see that, from 1966 – 2020, there were 342 instances where a woman was appointed in an ICSID case and 2,464 instances where a man was appointed (in main or annulment cases). This means that 12.1% of the seats have been held by women.
The frequent re-appointment of a small handful of female arbitrators, however, can make it appear as if gender parity efforts are more advanced or have enjoyed more success than they have. Over 25% of the 342 appointments (95) in ICSID cases went to one arbitrator. Combined, the top two women (by appointments) enjoyed over 40% of the 342 appointments to ICSID cases. Delving deeper, one sees that more than half of the 342 appointments went to the top 5 most frequently appointed female arbitrators (185). The remaining 157 appointments were received by approximately 65 women.
Roughly speaking (assuming there is no case overlap), if one excludes the 95 cases where the same female arbitrator was appointed, the picture is that women have only been appointed to 10% of arbitrator positions in ICSID cases.
If one further excludes the 44 cases of the other most appointed woman arbitrator, the percentage of cases featuring a female arbitrator drops again, to 9%.
Finally, if one further excludes the 46 cases of the next three women combined, one sees that women are appointed just under to 7.5%.
ICCA has recognized that the disparities in appointments have nothing to do with education, training, or skills. https://www.arbitration-icca.org/icca-reports-no-8-report-cross-institutional-task-force-gender-diversity-arbitral-appointments-and But, there are differences in the way that men and women get onto appointing authorities’ radars and demonstrate their credibility (often repeatedly, like a professional Groundhogs Day, see Diversity Dividend, page 4: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3853870 ).
Diversity efforts can be skewed or undermined by the prejudice that “there is only one seat at the table”, with the result that a small handful of people enjoy a disproportionate number of appointments. The transparency afforded by ICSID, however, enables the public to evaluate the effectiveness of diversity efforts. While this is consistent with the ICSID mandate, it would be interesting to see whether and how the ICC might be different. With additional details about who the ICC is appointing to its cases and how those individuals were made known to the ICC, the arbitration public at least would have a better idea of how well diversity efforts are working at the ICC.
Stay tuned for more exciting arbitration updates from Katherine Simpson…
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