The Equal Representation in Arbitration (ERA) Pledge has launched a set of Corporate Guidelines designed to assist corporates involved in arbitration to implement the diversity objectives set out in the ERA Pledge. Drafted by the Pledge’s Corporate Subcommittee, co-chaired by Freshfields London partner and founder of the ERA Pledge, Sylvia Noury and Samantha Bakstad of BP, the Corporate Guidelines recognise the importance of diversity in tribunals for those participating in the process and set out some specific factors for corporate counsel to consider when involved in arbitration proceedings.
What is the ERA Pledge?
The ERA Pledge is a is a global initiative which seeks to increase, on an equal opportunity basis, the number of female arbitrators sitting on tribunals in order to achieve a fair representation. Recognising that change needs to involve all actors in the arbitration process, the Pledge sets out a series of concrete and actionable steps aimed at improving the profile and representation of qualified women. Launched in 2016, the Pledge has garnered more than 4,300 signatories from around 112 countries and, along with other like-minded organisations, continues to work towards the goal of achieving better gender diversity in international arbitration through the work of the Pledge’s Global Steering Committee, regional Subcommittees and the Corporate and Young Practitioners Subcommittees.
Why focus on corporates?
Although the data shows that the proportion of female arbitrators being appointed to arbitral tribunals has increased from an average of around 10 per cent in 2015 to just over 21 per cent in 2019, more detailed analysis shows that this increase is largely due to the arbitral institutions appointing more women. The number of female arbitrators being appointed or nominated by the parties to arbitration remains comparatively low. To address this issue, the Pledge Global Steering Committee created a Corporate Subcommittee comprised of senior in-house DR counsel from Airbus, Anglo American, Barclays, BP, Burford Capital, Chevron, ConocoPhillips, Coty ENEL, Omni Bridgeway, Standard Chartered, Shell, Total, Vannin Capital and Veolia.
The Corporate Guidelines
The Corporate Guidelines are designed to assist corporates wishing to implement the diversity goals of the Pledge by providing some specific steps and factors corporate counsel can consider when involved in appointing arbitrators, selecting counsel for arbitration matters and when in the workplace more generally. For example, the Guidelines provide that wherever possible, corporates should:
- Consider appointing women as arbitrators on an equal opportunity basis.
- Try to request at the outset of the arbitrator selection process that external counsel apply the principles embodied in the ERA Pledge when drawing up a list of potential candidates.
- Try to ensure any list of potential arbitrator candidates includes a fair representation of women.
- Endeavour to call out any non-diverse list and encourage further consideration be given to equally qualified female candidates who could be included in the list.
- Consider using the Pledge Arbitrator Search function (and other available search tools) to help identify female arbitrator candidates with the required criteria: www.arbitrationpledge.com/arbitration-search
- Try to include a fair representation of women when proposing candidates for Chair. We will also request that the nominated arbitrators and our counterparty bear the aims of the ERA Pledge in mind when considering the appointment of the Chair.
- Make efforts to track and report the proportion of female arbitrators we appoint and, where appropriate, share this diversity data internally.
- Consider adopting internal targets, where necessary, to increase the proportion of women we are appointing to improve the diversity of our arbitrator appointments. These targets should be communicated to the teams involved in appointing arbitrators and performance against these targets tracked at regular intervals to monitor progress.
The Guidelines acknowledge that corporates may be less familiar with diverse arbitrator candidates than arbitral institutions and that some corporates may rely on arbitrator candidate lists provided by external counsel. By signing the ERA Pledge, a corporate can demonstrate its support, including to its external counsel, for a broader and more gender-balanced arbitrator selection process.
The Corporate Guidelines are supported by Airbus, Anglo American, BP, Burford Capital, Chevron, ConocoPhillips, Omni Bridgeway, Shell and Vannin Capital.
To find out more about the Pledge and how to sign your corporation up, see the Pledge website: www.arbitrationpledge.com. Alternatively, please don’t hesitate to reach out to me, Ashley Jones. You can also join the ERA Pledge LinkedIn Group to receive further information on this topic.