Shattering The Glass Ceiling In Arbitration
Author: LawSphereX
Category: Arbitration & ADR
Published:
Updated:
SHATTERING THE GLASS CEILING IN ARBITRATION
Adv. Sailee Pratik Bhosle & Adv. Roger Raju Nipu, D. Y. Patil Deemed to be University, School of Law “No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half of its citizens.” — Michelle Obama
1.1 INTRODUCTION
Arbitration typically moves more quickly than court proceedings as parties have more control over the process where they can tailor the procedure, format and rules based on their convenience and requirements. It provides a neutral platform to the parties and hence it becomes easy to avoid the complexities jurisdictions and legal systems of different nations. It also provides greater predictability in terms of control over expense and time. With all the benefits it has to offer, Arbitration is missing one element and that is Gender Parity. The gender bias has historically disadvantaged women over men in arbitration and there is a need of equal representation and participation of all genders in the process of arbitration.
Gender Parity means breaking down gender-based biases that have limited opportunities for women ensuring that arbitration panels, arbitrators, advocates, experts, and other stakeholders in the arbitration process reflect a fair and balanced representation of society. The LCIA points out that “the percentage of women selected as arbitrators by the parties has actually decreased in 2021 and this is compounded by a greater proportion of repeat appointments of individual arbitrators. 1 Through Gender Parity individuals of all gender identities, have an equal chance to participate as arbitrators, advocates, experts, or in any other capacity within arbitration proceedings and create inclusive environments within arbitration institutions, organizations, and legal frameworks. Dr.
Salomon, President of the International Chamber of Arbitration (ICC), said in a statement, “We’re making progress in terms of gender equity in international arbitration. We’re seeing an incredible number of female arbitrators appointed, women in leadership positions, and women shaping the industry. But there’s so much more work to do. I want all
1 Quote from Lexology.com
women who are interested in international arbitrations to know that they’re not alone.”2 Diverse perspectives and experiences can lead to more well-rounded and informed judgments in dispute resolution processes, ultimately contributing to a more just and equitable legal system.
1.2 HISTORICAL UNDER-REPRESENTATION OF WOMEN IN ARBITRATION
Women have historically been underrepresented in arbitration, which is a complex issue with enduring institutional, cultural, and historical roots. Although this phenomenon has existed for centuries, there have been new efforts to eliminate the gender gap and advance more diversity in the arbitration industry. In the past women were allocated to particular societal duties that frequently excluded them from taking part in the legal or conflict resolution system. Their prospects to work in professions like arbitration were constrained by the separation of duties. The cultural norms that discriminate against women have long been prevalent, limiting their access to justice and participation in society. Earlier women faced trouble getting an education, especially in professions like law and business.
Their ability to pursue jobs in arbitration, which frequently need specialized knowledge, was hampered by this lack of access. Hence due to societal duties, cultural norms and lack of education women were not promoted in Arbitration.
1.3 BARRIERS AND
CHALLENGES
FACED BY WOMEN IN ARBITRATION The International Chamber of Commerce's (ICCA) International Arbitration Report identified a number of obstacles to female arbitrators being appointed, results in "leak in the pipeline" of qualified candidates, a lack of retention of female practitioners in private practice, a lack of advancement opportunities within the organization, and a lack of opportunities for female arbitrators to acquire relevant experience and to increase their visibility and credibility among users of international arbitration. 3 There has been a long-standing pattern of underrepresentation of women in the arbitration industry, which is due to a number of factors. These include gender stereotypes and bias, which can lead to preconceive notions about a woman's capabilities and suitability.
Networking and mentorship, which are essential for career growth, may have been excluded from the selection process. Additionally, the lack of visible female arbitrators and leadership in the industry can make it difficult for women to envision themselves as arbitrators. Another complexity of working in arbitration, with its frequent travel https://www. scconline. com/blog/post/2023/03/07/international-womens-day-2023-words-of-inspirationlearning-from-women-in-law-and-power/ 3 Quote by Lucy Greenwood, International Arbitrator, from “Women in Arbitration progressing through pipeline” and irregular work-life schedules, can be a deterrent to women considering a career in the field. The arbitration community has a tendency to be resistant to change due to the perceived risk of gender-based selection being compromised by quotas or initiatives.
The prevalence of gender inequalities in arbitration varies from region to region and culture to culture. Furthermore, gender parity initiatives must also consider the intersections of gender, racial, ethnic and socio-economic backgrounds. Hence, The underrepresentation of women in dispute resolution can be attributed to a complex combination of historical, sociological and institutional elements. While progress has been made in recent years, further work is required to ensure equity, fairness and a greater diversity of views in the field.
1.4 INITIATIVES AND ORGANISATIONS THAT HAVE PROMOTED GENDER
DIVERSITY IN ARBITRATION In recent years, there have been a number of initiatives and organizations that have taken steps to increase the representation of women in the arbitration industry. These initiatives and efforts have been designed to address the long-standing lack of female representation in the field and to create a more equitable atmosphere. The following are some of the most noteworthy examples of these efforts. A. EQUAL REPRESENTATION IN ARBITRATION (ERA) PLEDGE The ERA Pledge was established in 2015 by a group of committed individuals within the international arbitration community to address the glaring lack of representation of women on international arbitration tribunals. The goal of the Pledge was to combat the gender imbalance in arbitration by actively seeking to increase the number of female arbitrators appointed.
The ultimate goal was to achieve not only better representation but full parity. The Pledge was the result of a collaborative process involving representatives from a wide range of industries, including corporations, state governments, arbitral bodies, arbitrators (legal and non-legal), and academia. The Steering Committee was formed to develop the Pledge. 4 The Pledge's introductory paragraph outlines its two primary objectives, one is to improve the profile and representation of women in the arbitration field, and to guarantee equal opportunity for women to serve as arbitrators, with their qualifications being the primary criterion for
4 Inputs from http://www.arbitrationpledge.com/
appointment. The Steering Committee (SC) and stakeholders deliberated on the possibility of establishing quotas or targets, but ultimately opted for a more flexible standard acceptable to all parties. The ‘equal opportunity’ standard emphasizes the importance of establishing arbitrator appointments and arbitrator opportunities on the basis of equal qualifications. Furthermore, the ‘fair representation’ standard acknowledges that fairness is contingent upon the context of an opportunity. For instance, ensuring equitable representation may result in a higher rate of female representation in conference panel speaking opportunities than in arbitrator appointments in particular high-stakes disputes. The ERA Pledge turns these goals into tangible, actionable actions that the arbitration community can take.
However, the Pledge recognizes that not everyone will be able to fulfill every commitment. That’s why it includes the phrase ‘wherever possible’ to signal to stakeholders that they should work as hard as they can to meet every commitment. Besides the ERA Pledge, there's another sister initiative that aims to increase the number of women in expert witness roles in dispute resolution around the world. It's called the EREA Pledge, and it was started in 2022. B. ARBITRAL WOMEN For almost three decades, ArbitralWomen has been a leader in the international non-profit sector, dedicated to promoting gender equality and excellence in alternative dispute resolution. Established in 1993 as an informal organization, it became an active one in 2000 and officially recognized as a non-profit organization in 2005, a significant milestone in its history.
This remarkable organization recently celebrated its twenty-fifth Jubilee in 2018, demonstrating its unwavering dedication to its mission and mission statement. 5 It is a symbol of empowerment and hope, devoted to achieving a number of essential objectives. At its core, the goal of is to promote the interests of women practitioners and promote diversity in the global alternative dispute resolution community. Strengthening a Global Network it works to build a vibrant international network of women working in a variety of alternative dispute resolution roles, from arbitrators and mediators to experts, lawyers and neutrals.
Challenging traditional gender stereotypes Increasing awareness of the critical role women and diversity play in the alternative dispute resolution community Supporting Women in Alternative Dispute Resolution One of the core objectives of the organization is to support women in ADR who are looking to advance their careers by providing them with the tools and knowledge they need to succeed.
5 https://www.arbitralwomen.org/aw-outline/
ArbitralWomen is committed to providing women in the dispute resolution field with structured mentorship programs to help them progress in their careers. Additionally, the organization encourages open communication and exchange of information between its members and practitioners in the field, as well as the exchange of knowledge and insights. Furthermore, the organization actively participates in educational initiatives such as meetings and conferences, training sessions, and other events related to ADR, in order to further the knowledge and understanding of the field. Finally, the organization actively distributes research documents, notes, and informational papers to foster academic and professional discussion within the field.
It provides scholarships for female law students and junior lawyers to take part in jurisprudence competitions, thus fostering the emergence of a new generation of legal professionals. The organization actively promotes its activities through the use of social media and digital communication, as well as publications, to showcase the achievements of its members and to expand its reach. Additionally, Arbitral Women works with other professional associations to develop partnerships that further its mission. Furthermore, the organization is flexible and purpose-driven, always looking for ways to further its core mission.
1.5 STRATEGIES AND BEST PRACTICES TO INCREASE GENDER DIVERSITY IN
ARBITRATION It is essential to promote gender diversity in the arbitration industry in order to ensure fairness, representation and a wider range of perspectives. To this end, there are a number of strategies and practices that can be implemented. These include raising awareness and commitment, creating a declaration of commitment, encouraging organizations, institutions and individuals in the arbitration community to publicly promote gender diversity, offering education and training on unconscious bias, diversity and inclusion, and incorporating gender diversity into the curriculum of courses and conferences, as well as mentorship and sponsorship programs. The Organizations should strive to create mentorship and sponsorship programs that link experienced arbitrators to the emergence of female arbitrators.
Sponsorship programs should be developed to promote and facilitate the advancement of women in the arbitration field. Additionally, networking opportunities should be organized to help create professional connections and increase visibility. Men in the field should actively promote and involve women in these networking opportunities. Finally, it is essential to ensure gender diversity on panels and committees, as well as on governing bodies. Finally, a policy should be established to not participate in or support panels or events with a lack of diversity. In order to ensure transparency and data collection, it is essential to collect and disseminate data regarding gender diversity in arbitrator and counsel appointments. This data should be used to monitor progress and identify areas of improvement.
Additionally, it is recommended that arbitrator organizations and law firms should provide flexible work arrangements that meet the needs of both male and female employees, such as policies on parental leave and remote work. Furthermore, equal opportunity policies should be developed and enforced to ensure that gender diversity is taken into account when selecting arbitrators and counsel, and blind application processes should be implemented to reduce any potential bias in selection. Women in Arbitration should be acknowledged and celebrated through recognition, recognition, and publication. To motivate the next generation, exemplary role models and success stories should be presented.
To achieve gender diversity objectives, it is essential to collaborate with other legal and arbitration organizations to share best practices and participate in sector-wide diversity and inclusion initiatives. To promote inclusivity, gender neutral language should be used in arbitration regulations, guidelines, and documents. Financial and logistical assistance should be provided to women's organizations to promote gender equality and diversity within the legal field. To monitor and report progress towards gender diversity goals, strategies should be adjusted based on results and feedback. All of this should contribute to a more equitable and balanced representation of genders in the arbitration community, thus enhancing fairness and equity in arbitration processes and outcomes.
1.6 CONCLUSION
AND CALL FOR ACTIONS Getting women and men on the same side in arbitrations isn't just about equality, it's about making sure the process is legitimate and effective. We've come a long way, but there's still a long way to go to make sure women are heard and represented in arbitration at every level. Gender bias still exists when it comes to who gets to serve as an arbitrator and when it comes to having female counsel, which affects how diverse and good decisions are made in arbitration. It is essential for all individuals in the workplace to be trained to recognize and address their own biases, and to set them aside. By eliminating unjustified assumptions and creating a more inclusive work environment for women, the overall morale of all employees will be enhanced, resulting in improved productivity and a better reputation for the organization.
Organizations can play a significant role in addressing bias through the implementation of policies, the implementation of workshops, the provision of mentorship, and the encouragement of women to aspire to managerial and leadership roles. Equally important is the recognition and appreciation of the accomplishments of women in these positions. Incorporating female role models in analogous fields can be a source of motivation and self-assurance for female arbitrators. Through open and uninhibited discussion, overlooked perspectives can be brought to the surface, inherent biases can be addressed, and different perspectives can be respected. Institutions and Law Firms should strive to increase the number of Female Arbitrators by responding positively to their level of responsibility and providing them with flexible work schedules and support in times of difficulty.
Discriminatory practices compelling Women to plead for their place in Arbitration with their Male Companions should be strongly addressed, with penalties attached for deterrence. A separate Neutral Body may also be considered to investigate equal appointment opportunities. The Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), the Supreme Judicial Council (SJC), and a number of other prominent Arbitration Institutions have joined forces to promote the growth of Women Participation, which has since seen an increasing trend. It is essential that society at large is reminded of the importance of Women's Education and Employment, so that future generations may equally contribute to Nation's Development.