By: Tania Gupta (National Law University, Jodhpur)
I am amazed at the way the inclusion of women in professions such as arbitration is still undefined and constantly debated. But my incredulity is not unwarranted. Currently, arbitration suppresses the female voice and comes into conflict with the pillars of feminism by continuously imposing male perspectives, standards set by generations of men and processes formulated by male thinkers. This piece focuses on the need for a feminist attempt to make the arbitration fraternity take women’s experience into account and how innumerable hurdles obstruct this attempt.
Arbitration tribunals including the Investor-State Dispute (ISD) resolution tribunals have earned themselves the reputation of operating on the principle of “male, pale, and stale.” Whenever the discussion on discrimination in the sphere of arbitration takes place, the discourse usually centers around the issue of ‘gender’. Arbitrator diversity has to be expanded to include not only the participation and visibility of women but also women from various backgrounds. Walking on the convenient path of ‘progress is progress’ has indeed led to a merely ‘visible’ inclusion of women as part of arbitral panels, but the problem of achieving parity across intersections between gender and other aspects of diversity still persists. Overlapping characteristics of female lawyers who are also Muslim or black or Asian or more than one of these give rise to a distinct kind of experience and more difficult struggles in their search of the ‘points of entry’ into the upcoming and growing field of arbitration. The inclusion of only white women belonging to developed countries in the pool of arbitrators is nothing but a mirage, generating a deceptive image of diversity in the profession. This is more commonly known as ‘token diversity.’ The lack of diversity, intersectionality, and the very basic concept of feminism is evident in the statistics showing that only two of the twenty-five most influential arbitrators of the world are women and both hail from North America. The generic definition of an arbitrator would imply a ‘median international arbitrator who is a fifty-three-year-old man belonging to a developed state and has served in at least ten arbitration cases.’ What is clear is that different characteristics are considered in isolation, while completely disregarding the intersection between them. It is essential to look at the latter to avoid a mere simplistic understanding and grasp that a female who belongs to more than one disadvantaged group is likely to struggle more.
INTERSECTIONALITY: MULTIPLE OBSTACLES ON MULTIPLE AXES
Intersectionality brings to light the idea that our discussion should revolve not just around the question of whether ‘enough’ women are being appointed as arbitrators but it should involve a good amount of thought on ‘which’ women are being appointed as arbitrators.
In the struggle for survival in every profession, women are juggling multiple intersections of overlapping systems of privilege and oppression. An LGBT African-American woman belonging to the same working class as a heterosexual white woman, though located in the same structure, will also face the horrors of homophobia and racism in addition to the now ‘usual’ gender discrimination. Intersectionality suggests that a certain class of women recognize its privilege, examines the several ways in which that privilege might make other women invisible within the feminist movement and make them nothing more than an attraction in its manifesto. The important thing is that we need to be cautious that the issue is not ‘who suffers more.’ The degree of suffering is not the threshold of oppression and it cannot be measured in terms of how grave it has been for one and less for someone else. Every privileged person is the same; every oppressed person is oppressed in her own unique way.
Intersectionality in the arbitrator appointment process is important for every section of the community including white males as it will trump the existing cognitive biases and overcome the problem of ‘group thinking,’ thereby producing decisions of greater quality and intellect. The aim behind intersectionality in arbitration is not justifying or legitimizing the presence of different women, but rather to bring fairness into the process, aside from the ground argument that no reason that is good enough to ‘disallow’ them from assuming this role, actually exists. Further, the decision in an investor-state-dispute will be able to enjoy global recognition and legitimacy only if people from around the globe witness themselves represented in that decision.
ARBITRATOR APPOINTMENTS: A TRAP
The deficit in diversity, as well as inclusiveness, requires the revision of the approaches towards increasing the engagement of women. The approaches may be twofold- first, providing equality of opportunity of education, and second, providing equality of opportunity to contribute to outcomes. Appointment as an arbitrator and subsequent re-appointment is an opportunity that is the outcome of years of education and experience. In the case of women, this opportunity is refused to them due to their ‘entry’ in the field at the wrong time or in the wrong way, both of which can be traced back to inexperience. But this arbitrary refusal does not take into account the hardships faced by a woman prior to applying to the position. One can therefore easily recognize that a vicious cycle arises from the lack of education resulting in weaker chances of appointments, leading to insufficient experience and practice, finally culminating in the frantic search for support for women’s ideas. The climax of an educated female arbitrator’s story is the same as its beginning. She is obliged to ‘find’ support for her ideas while a man’s idea assumes support the moment it is conceived. A male arbitrator is able to overestimate his capabilities and spiral upwards at the cost of his counterpart female getting caught in the cyclone caused by that spiral. A ‘refined’ arbitrator blames this on ‘self-doubt’ in women ignoring that this ‘self-doubt’ has developed from years of justifying her capability to actually acquire some capabilities. All parties to a dispute seek to appoint the most well-experienced arbitrators but terribly limit their search and willingness to appoint a select group without considering that a number of other people may possess the skill set that they recognize. Owing to this narrow approach, women become less visible and women who are ‘disadvantaged’ due to their religion, race, sexuality and various other factors become rather invisible in this restricted search. This situation demands that we should identify the place in the pipeline where the hole actually exists i.e. whether women are unable to participate in arbitration as a profession or are unable to sustain long enough to be appointed in the leadership role of an arbitrator.
The existing trend in arbitrator appointments is in the form of a closed-loop pattern wherein there is a tendency in parties to appoint arbitrators in their ‘own image.’ Very simply understood, in any situation in life, people are drawn to people who are more likely to sympathize with their positions and appointments in arbitration are no stranger to this trend. The choice of arbitrator often lies with the parties that prefer to appoint those who ‘talk the same talk.’ Another significant factor in appointment bias is the propensity in parties to choose arbitrators who possess extensive experience and repute. The appointment process is such that it leads to continued reliance on trusted and known arbitrators thereby lacking diversity. The case-by-case basis of these appointments acts as yet another impediment in expanding the pool of arbitrators. The common ‘excuse’ for non-inclusion or utmost limited inclusion of women arbitrators is that the ideal of competition and resolution between parties fits into the male perspective of weighing abstract rights and is a complete misfit into the female perspective which focuses on the relationship between parties. The vicious cycle of experience and practice blocks the entry of women into the world of arbitration and time and again this insularity is proven by the concentration of authority in existing players and constant exclusion of new players, mostly women. The general notion is that the door of this world is open for anyone of adequate virtue and talent, possessing the ability to make a difference. However, the presumption that not-so-quietly shadows this notion is that only men and a certain class of women qualify to fall into this category. What the feminist movement demands is not a quota for invisible women in arbitration but a quota in the mindset of those holding the power to appoint the arbitrators.
Having understood the vicious cycle and the need for prior experience dominating arbitrator appointments, we can conclude that the pipeline-leak is due to the assessment of previous track-records and practice wherein women, struggling to find a way out of their vicious cycle, are unable to make progress.
The root cause of these barriers is that the community of international arbitrators has long been extensively homogenous and extremely difficult to break into. This shallow and restricted pool of arbitrators warrants increased focus towards making this group more inclusive for all classes of women by broadening the process of appointment of arbitrators and expanding the pool of potential female arbitrators. Any attempt at bringing a change susceptible to intersectionality requires that the existing members of the arbitration community treat new entrants as other fellow members rather than obstacles. This change will proceed through active effort on part of the former rather than through argumentation, bullying, bluffing, and power tactics.
This piece shows that there exists no appreciation for the overlapping diversity characteristics and this results in candidates of adequate caliber becoming ‘invisible’ on arbitration panels. Intersectionality should be construed as the approach that uses gender as a unifying characteristic having the potential to trump other characteristics and give birth to a vision that all women come across equal obstacles in accessing arbitral seats. Though women minority groups are recognized distinctly, they are hardly visible as recipients of those benefits that are associated with arbitral appointments including respectable recognition, prestige, and equal remuneration. Presently, the invisibility of women and their experiences is inevitable because they are excluded from every opportunity to be able to gain any of those experiences. The bias which is very conveniently exercised as the unconscious is often a deliberate negative bias.
The issue of diversity on arbitration panels is envisaged as a destination and not a process and this conception often lead to the incorrect question which is how much intersectionality is sufficient to conclude that equal and diverse representation on arbitration panels has been achieved. It is imperative that we understand diversity as a process that requires flexibility in the adjustment of the panel’s compositions in ways that reflect a change in the community of international lawyers. It can thus be concluded that diversity in tandem with intersectionality is a process that necessitates the generation of mechanisms that will ensure that arbitral seats are accessible not only for women but for women of all diverse backgrounds.
Within the field of arbitration, it is essential to understand that all women do not share the same level of discrimination just because they’re women and a deeper commitment to justice is needed while incorporating intersectional complexity.
(Tania Gupta is a fifth-year law student at National Law University, Jodhpur.)