A 360-Degree, Kaleidoscopic View of Diversity and Inclusion (or Lack Thereof) in International Arbitration - ARIA - Vol. 33, No. 1
Kabir Duggal is a Lecturer-in-Law at Columbia Law School and an SJD Candidate at Harvard Law School.
Amanda Lee is an International Arbitrator, Consultant at Costigan King, and Founder of Careers in Arbitration.
Originally from the American Review of International Arbitration (ARIA)
It is said that beauty is in the eye of the beholder, but in the field of international arbitration, the beauty of many forms of diversity is frequently out of sight and, regrettably, out of mind. Over recent decades, international arbitration’s reputation as “pale, male, and stale” has led to growing calls for greater diversity and inclusion. Perhaps the starkest reminder of the lack of diversity in the field is the repeated appointment of arbitrators from a limited pool dominated by one gender, a certain region, a particular age group, and little ethnic variation.
Diversity must be kaleidoscopic. Any commitment to address the lack of diversity in the field must go hand in hand with a commitment by stakeholders to address structural issues present at every level of the profession.
This article provides a 360-degree overview of the main issues regarding diversity and inclusion in international arbitration. We begin by explaining why diversity is needed in international arbitration and exploring existing barriers that hamper progress in the field (Section I). We will contextualize such barriers by addressing the intersectional nature of diversity and its implications for international arbitration (Section II).
We will then explore the status quo surrounding specific diversity issues, including: (1) gender; (2) race; (3) age; (4) disability; (5) sexual orientation; and (6) socio-economic factors in Sections III to VIII. We hope to explore other forms of diversity, such as professional background, in the future. We will discuss possible solutions in Section IX, before concluding our overview in Section X.
A. Why Do We Need Diversity?
The arbitration community is united in calling for greater diversity. Commentators have noted that the need for adjudicative diversity is rooted in the need for legitimacy. This is true for any form of adjudication. For example, while arguing for female representation in the judiciary, Sally Kenney concludes that “[a]ll-male juries, just like all-white juries, are illegitimate. The same is true for the judiciary.” The same holds true for arbitral tribunals.
Professor Nienke Grossman posits that “sex unrepresentativeness can still harm perceptions of legitimacy” because “those affected by decision-making should play some role in the making of those decisions,” and such representation is an important democratic value that justifies the “exercise of that authority.” This therefore raises the question: how “international” is “international arbitration” if the majority of tribunals are composed of Caucasian men from the Western world?
These legitimacy issues are of particular relevance in international commercial arbitration because parties are expected to comply with awards issued by tribunals. Such deference to tribunal decision making is directly related to the parties’ trust and faith in both the arbitrators and the arbitral process itself. Enforcement of awards by State courts reflects their recognition of the utility of arbitration—any perceived lack of legitimacy may weigh heavily on the award itself.