CEPANI leads the way on diversity and inclusion in arbitration

New CEPANI rules on diversity and inclusion

The new CEPANI arbitration rules now contain an express requirement for diversity and inclusion to be considered when arbitrators are appointed. In the previous version of the rules, the CEPANI appointments committee and president were required to take into account a list of considerations such as the availability, qualifications and ability of the arbitrator to conduct the arbitration in a given case. 

Since 1 January 2023, diversity and inclusion have been added to that list. This requirement is unique among the arbitration rules of leading arbitral institutions. For example, the ICC, LCIA, SCC and SIAC do not (yet) explicitly mention diversity and inclusion as criteria for the appointment of arbitrators.

Other initiatives to boost diversity

This is not the first initiative to increase diversity and inclusion in the arbitration community.

For example:

• In 2015, the “Equal Representation in Arbitration” (ERA) pledge was drawn-up. This pledge aims to raise the visibility and participation of women in arbitration and to give them equal chances of being appointed as arbitrators. It suggests concrete ways to achieve this such as making sure that women are fairly represented in the lists of potential candidates for arbitral tribunals, committees, governing bodies and conference panels. It also asks for the collection and publication of statistics on gender diversity.

• In 2021, the Racial Equality for Arbitration Lawyers (REAL) group was set-up. This initiative aims to achieve racial equality in arbitration and to create a safe space for under-represented groups to discuss problems and the challenges they face.

• Another initiative is the LGBTQIA network and the launching of a disability task force by the ICC in 2021, whose goal is to foster an inclusive environment while making sure that their services meet the needs of all practitioners.

• A final recent initiative is the new set of rules adopted in 2022 by the Scottish Arbitration Centre. They contain a requirement for parties, arbitrators and the institution to consider principles set out in the ERA pledge and REAL pledges.

A further step in the right direction

The new CEPANI rules are arguably more far-reaching than the existing initiatives. This is because the broad reference to “diversity and inclusion” allows a broad range of criteria to be taken into account. Beyond gender, race and disability, this paves the way for consideration to be given to additional grounds of discrimination, such as social origin, religion, age or sexual orientation.

While some institutions, such as the ICC, the LCIA, and the SCC, have taken steps to increase the transparency and diversity of their arbitrator appointments, such as by publishing statistics, guidelines, and databases, none of them have revised their rules to expressly address diversity and inclusion. This new requirement is therefore a pioneering and progressive step that demonstrates CEPANI’s leadership and commitment to diversity and inclusion in arbitration. Unsurprisingly, these new rules made the shortlist for the 2023 ERA Pledge Award, which ultimately went to another commendable initiative: a global guide to women arbitrators, showing - perhaps unlike what the title might suggest – the wealth of suitable women candidates to act as arbitrator.

Hope for the future

Although reactions across the international arbitration community have been positive, the extent to which this change will enhance diversity as a whole remains an open question, as data on arbitrators’ backgrounds remains scarce and difficult to access. The hope is that this development will be yet another step towards the laudable objective of making arbitral tribunals ever more diverse.