“The Horror Of A ‘Tripadvisor For Arbitrators’ Is Deep Amongst Arbitrators.

Legal News & Analysis - Asia Pacific - Dispute Resolution

5 October, 2018

 

Though 70% of respondents said they had su cient information to make a decision about nomination of arbitrators, primary sources remained “word of mouth”, “colleagues’ experience of the nominees” and only then publicly available information.

 

Whilst in the abstract it is a truth generally acknowledged that participants need more published information to improve transparency and diversity of arbitrator selection, the reality is that participants are ambiguous at best as to its effect on the process and as to the benefit which is to be obtained from transparency initiatives. Anecdotal (and almost certainly highly subjective!) views from their own colleagues remain a firm favourite.

 

A majority of respondents were uncertain whether a diverse arbitration panel improves the quality of the decision making in an arbitration process. Moreover, although nearly half of respondents felt that progress had been made on increasing gender diversity in the formation of tribunals, less than a third considered that there had been progress on issues such as geographic, age or ethnicity diversity in panels. On the assumption that improving diversity in appointments is a desirable attribute of arbitration, respondents were asked who is best placed to drive such change. Their answer: the arbitral institutions, followed by the parties, and lastly by the parties’ counsel. More on that in the interview with Amanda Lee, Global Chair of the CIArb’s Young Members’ Group, elsewhere in this edition.

 

In relation to diversity, interestingly, studies showed that using a “blind CV” system – and therefore reducing transparency – significantly improves the rate of appointment of diverse candidates.

 

This suggests that the preferred sources of information used by those nominating are in reality unlikely to generate candidates with the most apposite qualifications and experience (the metrics by which a blind CV process operates) – taking us into the realm of the e ects of unconscious bias on the nomination process – perhaps a subject for another day!

 

Conclusion

 

One could argue that the respondents to the survey are a self-selecting group of experienced arbitration practitioners, and further that their reliance on inside information reflects the relatively juvenile state of the information offerings, both of which are true.

 

However, the quest for transparency will depend on participants in arbitration sharing their anecdotal knowledge for the bene t of the community as a whole, and agreeing that a transparent approach bene ts all in ways which may improve diversity too. 

 

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For further information, please contact:

 

Ruth Stackpool-Moore, Director of Litigation Funding / Head of Harbour Asia

ruth.sm@harbourlf.com