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New Study by W&L’s Susan Franck Examines Diversity in Legal Profession at International Level

A new article by Washington and Lee University Law Professor Susan D. Franck is tackling some of the most topical issues in international arbitration and the legal profession in general.

Tapping themes from , which identifies the challenges of fostering diversity within the legal profession, the article examines transnational levels of diversity in the bench and bar, as well as within international courts and tribunals.  It also discusses W&L alumnus Robert Grey’s Minority Corporate Counsel Association to explore the role of corporate counsel in fostering a more inclusive and diverse workplace.

“. The article was a collaboration from a transnational team lead by Franck and including Anne van Aaken, James Freda, Kellen Lavin ’13L, and Tobias Lehmann.

The article originated from the authors’ groundbreaking 2014 research at the International Council for Commercial Arbitration (ICCA) and its prestigious biennial congress. With the aid of Washington and Lee alumni and students, including Kellen Lavin, Mac Mackie, Trista Bishop-Watt, Krystal Swendsboe, Bret Marfut, Sharon Jeong, Rachel Kurzweil and Stephen Halpin, the research team conducted a “live data collection exercise” designed to examine and shed light on the international arbitration community.

The article analyzes the results of some 548 subjects (including 412 who served as counsel, 262 who served as arbitrators, and 62 who served as investment treaty arbitrators), and explores the identity and experience of international arbitration practitioners. By examining the arbitration community’s self-assessments on issues such as diversity, Franck and her coauthors present the first broad results demonstrating the arbitration community’s own realization and awareness of diversity issues within the field.

“This is a first-of-its-kind wide scale research into the core demographic information about the “invisible college” of arbitrators, who have a profound impact on the resolution of global commercial and investment disputes,” says Franck. “The demographic information, and the arbitration community’s self-assessments contained within the article, are incredibly unique and highly relevant assessments of international arbitration that will be of interest to lawyers, corporations, states and other stakeholders interested in an empirical look at how the international arbitration community views itself.”

The article’s discussion of demographic data provides key insights into diversity challenges in international arbitration, including results showing that only 17.6% of the arbitrators were women, and that, depending on how development status was defined, only 15 to 20 percent of the arbitrators came from the developing world. The research team hopes the article will prove valuable to practitioners, policy-makers and academics interested in exploring the demographics and functionality of international arbitration.

The survey identified disparities in gender and development status in international arbitration, with key findings including:

  • The gender disparity in international arbitration was stark. The data indicated that 76% of those who acted as counsel in an international arbitration were men and 24% were women. Of those who had served as an arbitrator, 82.4% were men and 17.6% were women. Female respondents tended to be younger than men.
  • Most international arbitrators were nationals of Europe or North America. There was a pronounced geographic distribution amongst arbitrators at the conference: 48.2% of arbitrators were European nationals; 27.9% were North American nationals; 10% of arbitrators were Asian nationals; 9.6% of arbitrators were South American nationals; 4.0% of arbitrators were nationals of Australia or New Zealand, and 0.4% of arbitrators were African nationals. Statistics on international arbitration counsel are also available in the survey.
  • Most international arbitrators came from developed states. The study analyzed respondents’ development status using multiple variables, including how the OECD, World Bank and the United Nations Development Programme’s Human Development Index (HDI) classified respondents’ home states. Regardless of the definition of development status, our data demonstrated that individuals from developed states dominated the demographics of counsel and arbitrators. For example, 82.4% of international arbitrators were OECD nationals and 17.6% were not. Using World Bank classification, 84.8% of international arbitrators were from high income countries; 10.8% of international arbitrators were from upper-middle income countries; 4.4% of international arbitrators were from lower-middle income countries; and there were no international arbitrators or arbitration counsel from low income states. The median HDI score showed that half of the international arbitrators surveyed came from States with “very high human development.” International arbitration counsel showed a similar “development gap.”
  • Women were more likely than men to identify the possibility of diversity challenges in international arbitration; however, developing country nationals were less likely than developed country nationals to perceive diversity challenges in international arbitration. The data also revealed that women respondents were more conscious of perceived diversity challenges in international arbitration than the men. Younger respondents were also more likely to perceive those same challenges when compared to older respondents. Nevertheless, one surprising finding was that developing country nationals were less likely than their developed country counterparts to state that there were diversity issues in international arbitration.
  • Once women crack the “glass ceiling” of becoming an international arbitrator, the data did not reveal a meaningful difference in the number of appointments they obtained as compared to men. Yet, the data revealed that developing country arbitrators received fewer appointments than their developed country counterparts. Although development status and gender are often considered together under the general rubric of “diversity,” the survey data suggested that the experiences and challenges that women and developing country nationals face in international arbitration may be different.

The authors of the article expressed gratitude for the critical support they received from the W&L Law administration, the W&L Transnational Law Institute, the W&L Frances Lewis Law Center, the W&L Law Library, the ICCA Miami Congress host committee, Lucy Reed, the ICCA Congress’ conference program, and the University of St. Gallen Law School.