Originally from the American Review of International Arbitration (ARIA)

ABSTRACT

In recent years, the discussion of diversity in arbitration has been growing, with chambers and institutions including diversity and minority sections in their annual reports and promotional material. This article aims to provide an overview of the issue of diversity in arbitration in Brazil, sharing a deeper analysis of gender and regional diversity, as well as highlighting the lack of data on other forms of inclusion. It also touches on the relevance of increasing this discussion, and offers possible solutions for the lack of inclusivity in arbitration in Brazil.

I.     INTRODUCTION

Brazil is—in essence—an incredibly diverse country. From ethnic to religious to gender diversity, Brazil has it all. Being diverse, however, does not mean having diversity: the countless different regional cultures, foreign heritages from the country’s colonial past, the majority of women and people of color, the natives, and the approximately 24% of the population who declared having some degree of disability  have unfortunately not translated into a more diverse configuration of power across governmental and private bodies yet.

Brazil still has a long path towards having a more comprehensive range of diversity in its institutions. On the one hand, a recent study has shown that women are the majority of lawyers up to 40 years old, making up 56% of all lawyers enrolled in the Brazilian Bar Association (OAB).  On the other hand, a study conducted by CEERT (Center for the Study of Labor Relations and Inequalities) unveiled that only 1% of Brazilian law practitioners working in big law are black and that, even among the 1%, most of them are interns, and not qualified lawyers.  As will be shown in this paper, this lack of representation of the country’s real demographic scenario is not different in the arbitration field.

Putting aside a more extensive analysis of race, gender, and general diversity of Brazil’s entire legal scenario, we have chosen to collect and study the available data regarding diversity amidst the Brazilian arbitration scenario, which, by itself, has revealed to be a great task.

Arbitration in Brazil expands steadily; procedures grow daily, and new, international, players are increasingly more common. According to research concluded at the end of 2020, there are 967 ongoing arbitration proceedings in Brazil, with a total amount in dispute of approximately BRL 60.91 billion (around USD 11.51 billion).

With globalization, the world has significantly changed. Adriana Braghetta, one of the leading Brazilian arbitrators, has correctly said the following: “[w]e are all connected; we exchange products, ideas, money, and experiences globally at an incredibly fast pace. We are more plural.”  By being more plural, however, the need for plurality in arbitration has also grown: “. . . if we want a well-accepted international dispute method, it needs to represent this plurality—all this diversity that we can easily perceive.”

It is safe to say that so far, the arbitration scenario worldwide has usually been represented by the same category of people. According to Ms. Braghetta, “[t]he common arbitrator is male, white, mature, a lawyer and from a developed or western country. Is this a problem? So far, it has not been a problem at all—in fact, those well experienced arbitrators helped substantially with the development of arbitration.” However, with the growing number of new players (more countries developing the practice, the inclusion of more state-owned parties, etc.) in the field worldwide, there is a need for variety, for plurality—for diversity.