19 December 2016

At the 2016 ICC UK’s Annual Arbitration conference, Philip Haberman, senior partner, joined an engaging panel discussion on ‘Arbitrator Selection, Transparency and Diversity’.  Along with his fellow panellists, Philip raised many interesting points about the degree of diversity in international arbitration.  He gave his view that parties need to be more courageous when making appointments to arbitration tribunals; only by them developing a more open mind-set, and opting to select lesser known faces, will greater diversity be achieved.

Joining Philip for the lively and entertaining debate moderated by Paula Hodges, Herbert Smith Freehills, were Anja Havedal-Ipp, SCC; Kai-Uwe Karl, GE Renewable Energy; and Samantha Bakstad, BP.  With the panel and moderator including both lawyers and an accountant, and also experience covering work in practice, in-house and at an institute, it made for a balanced and interesting discussion.

Each panel member offered a distinct perspective on the subject.  For his part, and as the only non-lawyer on the panel, Philip was able to provide a unique stance on the issues and pose some challenging questions.  Firstly, he listed some intriguing statistics, which served to flag what is perhaps some rather superficial gender diversity in arbitration – despite 59 of the ICSID’s 235 panels over the last eleven and a half years having included a female arbitrator, 41 of these have involved one of the same two women.  He also mentioned the preferences of claimants to appoint arbitrators from North America, respondents to prefer the French, whilst the chosen chair is often of British or Swiss nationality.  Philip then commented on what may help to achieve true diversity in the system, that of parties being prepared to be more adventurous with their arbitrator appointments.  Nothing ventured, nothing gained – only by parties taking what may be ‘perceived’ as greater risk, in avoiding familiar faces, will the pool of arbitrators available to them be broadened.  Ultimately, parties may find that their inclusion of a new face with a fresh perspective on the panel to actually work in their favour.  Speaking to an audience from across the arbitration community, one of Philip’s closing comments, “diversity comes from diversity of thinking”, certainly appeared to resonate throughout the room.

Although each panellist gave their personal opinion, it was collectively agreed there is a fundamental need to increase diversity in arbitration, in all forms, and everyone bears responsibility for doing so.  Two of the panel members, speaking from experience as users of arbitrators, indicated they would actively support the idea of selecting a more diverse range of individuals.  Therefore, it seems, while it will take time for genuine diversity to filter through the system, with such demand being driven from the client side, there is hope this may come sooner than perhaps previously anticipated.

Talking after the conference, Philip referred to the concept of the ‘collective action problem’; although it is in everyone’s collective interest to promote diversity, such is the ‘perceived risk’ of being the first to act, it is not in anyone’s individual interest to do so.  Does this make the community’s evident desire to achieve true diversity futile?  Absolutely not.  It will be the combined effect of many separate and incremental changes, however small these are, which work to turn the tables.  In true community spirit, the effort to establish change must be shared amongst all those involved.  Haberman Ilett is certainly ready and willing to play its part in that process.

By Sophie Baillie, associate