Arbitration analysis: Rashda Rana SC, barrister at 39 Essex Street Chambers and president of Arbitral Women, the international network of Women in Dispute Resolution, looks at the issue of the gender gap in arbitration.
IS THERE A GENDER GAP FOR WOMEN IN ARBITRATION?
Yes, certainly there is and it is unjustifiable. The high demand for arbitration services has driven many governments to cultivate a pro-arbitration environment through new arbitration legislation and other mechanisms, and has led to the proliferation of international arbitral centres throughout the world. Likewise, many global law firms have also responded to this increased demand by aggressively entering new markets and deploying significant resources to those emerging regions. The expansion of international arbitration into new regions as well as steady growth in more established markets has not, however, been reflected in the greater participation of more women. Women are not getting the same opportunities as men, regardless of background.
Statistics published by arbitral institutions indicate quite strongly that, more generally, there is a severe imbalance in the vast number of appointments whether by the parties or by the institution concerned — for instance, the London Court of International Arbitration (LCIA) annual report for 2013 shows that in 2013, 9.8% of the 162 appointees selected by the LCIA and 6.9% of the 160 appointees selected by the parties were female. The LCIA is the only institution which actively pushes for the appointment of female chairs of tribunals. The appointment of European and American arbitrators usually account for a large chunk of the pie, within that the thinnest, barely visible slivers represent female arbitrators. Further analysis of the numbers indicates that things are not really improving.
There are many studies which indicate there is a huge gender gap — for instance, the Institute for Continuing Legal Education in California has carried out studies which show that 85% of the women lawyers surveyed perceived a subtle, but pervasive, gender bias within the legal profession. Almost two-thirds agreed women lawyers are not accepted as equals by their male peers (see also ‘Implicit Gender Bias in the Legal Profession: An Empirical Study’ by Justin D Levinson & Danielle Young, Duke Journal of Gender Law & Policy Volume 18:1 2010). Despite the fact that approximately 60% of all law graduates are women, this figure steadily decreases over time and rank, such that, by the time we get to the managing partner level, only 4% are women.
WHAT CAUSES OR PERPETUATES THIS GAP AND HOW DOES IT MANIFEST?
To some extent the problem lies in deep-rooted cultural perceptions and misperceptions. In every field unconscious bias is evident and perpetuated. Many studies (for example ‘Science faculty’s subtle gender biases favour male students’ — Moss-Racusina, PNAS, 2012) show categorically that unconsciously, we tend to like people who look like us, think like us and come from backgrounds similar to ours. This means that white men choose white men for board rooms, as counsel, as arbitrators, as judges. The bias clearly is not always unconscious — sometimes it is deliberate negative bias.
In the same report by the Institute for Continuing Legal Education, the findings were that 76% of those surveyed reported feelings of negative bias were from opposing counsel, 64% from clients, 48% from superiors, and 43% from peers. It is interesting to note that most feelings of negative bias were from opposing counsel, and the least was from peers. While 65% did not make any career changes due to these perceptions of negative bias, it is statistically significant that 35% did, and that 37% made no career changes because they believed it would not be any better elsewhere.
DO YOU BELIEVE IN AFFIRMATIVE ACTION TO ADDRESS THE GAP?
Affirmative action has and can effect change. It has been pioneered in many different sectors:
- the political arena for numbers of MPs in any one party
- in the commercial arena, with demands on boards of organisations to have a certain percentage of female directors
- in model briefing policies for female counsel to be briefed on cases
- in the judiciary for numbers of female judges
For instance, women now account for 20.7% of board members in FTSE 100 companies.
In Australia, the latest percentage of women on ASX 200 boards is 19.8%. In the US, the percentage of S&P 500 companies with at least one female director is just over 90%, yet 10% of these companies still do not have women directors and 28% have just one. The European Commission aims to attain a 40% ‘objective’ of women in non-executive board member positions in large publicly listed companies by 2020 (see further EU Directive on Women on Boards in 2012). Even that is not enough. There are ways of introducing affirmative action in law and in particular arbitration, but it has to be accepted and taken up by lawyers (young and old) advising their clients, the clients themselves and other counsel and arbitrators. A cultural shift is needed, not just time, to get there.
WHAT IS YOUR ADVICE FOR WOMEN ‘COMING THROUGH THE RANKS’ IN ARBITRATION TO HELP THEM SUCCEED?
Persevere. Surround yourself with supportive people: family, friends, colleagues, bosses, mentors. Find support for your ideas, yourself, your career path.
Men overestimate their abilities and capabilities which, in itself, leads to greater confidence, confidence building in others, promotion, pay rises and so on, with their prospects shooting upwards. Women, on the other hand, routinely underestimate themselves leading to a lack of confidence and consequently others doubting their ability, slower promotion, less pay and so on, with their prospects spiralling downwards.
Women need to reverse that trend by helping themselves and helping others. They should be assertive without being aggressive, promote their skills and expertise. They should remember they don’t need to mimic male behaviour, and, more importantly, they should be themselves.
Interviewed by Evelyn Reid
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor