08 Aug 2018
In the 2015 International Arbitration Survey, the respondents were asked the open question “if you could have any improvement made to international arbitration, what would it be?”1
It brought a wide range of answers. Notable suggestions included broadening the pool of arbitrators in number as well as in ethnic and gender diversity.
The 2018 edition of the Survey2 takes a closer look at the diversity issue. The respondents were asked the question, whether progress has been made in aspects of age, cultural, ethnic, geographic and gender diversity. Only with respect to gender diversity did the majority of respondents (59%) believe that it is the case. As regards other aspects of diversity, no more than a third of the respondents agreed that progress has been made in recent years. The area where progress was recognised the least is ethnic diversity (only 24% of respondents saw any progress).
As one of the interviewees pointed, “development in diversity is not something that can be forced […]”.3 This is particularly true if we take into account that the ability of parties to select arbitrators is the fourth most valued feature of arbitration.45 Parties must remain free to choose arbitrators they want and no parity can be imposed on them. Since the main aim of a party to arbitration is to succeed, users may be expected to promote diversity only to the extent it is in line with their strategy in a given case. Hence, further notable progress in diversity should rather not be expected overnight.
Having said that, one recent development needs to be noted. In the 2018 Survey, arbitral institutions were voted to be best placed to ensure greater diversity. It did not take long after the Survey was released for the ICC to prove this to be true. On 21 June 2018, the ICC World Council appointed 176 members for the ICC Court’s 2018-2021 term, with equal representation of men women. The ICC also improved the regional diversity amongst the Court members (Africa: 13%, Asia: 26%, Europe: 39%, North America: 4%, Latin America and Caribbean: 15% and Oceania: 3%). Finally, a significant generation renewal must be noted, with over 15% of members below 40 years of age and 40% between 41 and 50.
Of course the diverse composition of the ICC Court will not be immediately reflected in the composition of tribunals in international arbitrations around the world. But knowing the ICC’s influential role, this will definitely have an impact. Further changes are surely to be seen and reflected in the next Survey.
2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, p. 10.
22018 International Arbitration Survey: The Evolution of International Arbitration.
32018 International Arbitration Survey: The Evolution of International Arbitration, p. 17.
42018 International Arbitration Survey: The Evolution of International Arbitration, p. 7.
[PB . 2018 QMUL Survey_Wind_of_Change.docx]
Piotr Bytnerowicz, FCIArb
Piotr Bytnerowicz is a counsel at White & Case (Warsaw) and a member of the Firm’s International Arbitration Practice. He represents clients in disputes related to various construction projects, as well as M&A and real estate transactions. He also regularly acts as arbitrator in commercial and construction disputes. Chambers and Partners recognises Piotr as Up and Coming in the field of dispute resolution. He is praised for "the clarity and aptness of his conclusions and arguments,"as well as"his creativity in solving problems."