Bringing in gender diversity in arbitration profession

Numerous studies have highlighted the failure of appointing women arbitrators and ignoring the vital role of gender diversity in arbitral tribunals. Despite these studies change on the ground remains frustratingly elusive.

Recent data from the 2022 Report for Arbitral Appointments and Proceedings, reveals the proportion of female arbitrators nearly doubling between 2015 and 2022. But this incremental change has not done enough to increase women’s representation significantly.

Major hurdles

One major hurdle obstructing diversity in arbitration appointments is the scarcity of experienced female arbitrators. Arbitral appointments are guided by a prior experience norm, in which arbitrators appointed more frequently are likelier to attract further appointments. This disadvantages female arbitrators, who have historically suffered from marginalisation in the legal profession. Further, the shortage of seasoned female arbitrators is frequently attributed to a phenomenon known as the “pipeline leak”.

Currently, nearly half of associate in law firms are women, yet less than a third ascend to partnership positions. This lack of female representation creates a daunting landscape for emerging professionals who struggle to envision a future in a profession where female role models are scarce.

Aligning with the government’s vision, which places significant emphasis on women-led development, it is believed that women will play a pivotal role in India’s Alternative Dispute Resolution (ADR) framework.

Having a diverse body of decision-makers allows a wider array of such traits to influence the formation and application of laws; thereby, increasing the quality of decisions at a systemic level. So having more female arbitrators and from other marginalised groups is pivotal to increasing the quality of arbitral decision making.

To address this issue, we must first acknowledge the existence of biases, actively seek opportunities to contribute, and collectively redefine the future of arbitration. The proposal for blind arbitral appointments represents a significant stride in the right direction. Simultaneously, we must acknowledge the influence of implicit gender biases and aim to rectify them.

ICA initiative

In this context, the Indian Council of Arbitration (ICA) has taken a substantial initiative to create a separate category for women empanelled arbitrators.

Even if women are appointed as arbitrators, they may still encounter obstacles, especially when associated with conservative firms. Finding a simple solution to this concern is elusive, but we must remain open to exploring different approaches and challenging established norms.

All practitioners should boldly defy historical norms and actively participate in reshaping the future.

The writer is Director-General, Indian Council of Arbitration

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