We are pleased to report on the latest initiative by the ERA Pledge, the launch of the Pledge Corporate Guidelines on 26 November 2020. The Pledge Corporate Guidelines are a set of guidelines specifically designed for corporates to use to implement the diversity aims of the Pledge. The Pledge Corporate Guidelines can be found here on the ERA Pledge website.
The Pledge Corporate Guidelines were drafted by the members of the Pledge Corporate Sub-Committee, led by Co-Chairs Samantha Bakstad of BP and ArbitralWomen member Sylvia Noury of Freshfields, together with Secretary Ashley Jones of Freshfields. The corporate sponsors of the Pledge Corporate Guidelines include Airbus, AngloAmerican, BP, Burford Capital, Chevron, ConocoPhillips, Omni Bridgeway, Shell Corporation and Vannin Capital.
The Pledge Corporate Guidelines recognise that diversity is a critical lever for business success. Additionally, increased diversity improves the effectiveness of arbitral tribunals and the quality of outcomes by bringing a greater range of perspectives to bear on the decision-making process.
The Pledge Corporate Guidelines acknowledge that corporates may be less familiar with all available diverse arbitrator candidates than arbitral institutions and that some corporates may rely on arbitrator candidate lists provided by external counsel. By signing the Pledge, a corporate can demonstrate its support, including to its external counsel, for a broader and more gender-balanced arbitrator selection process.
Importantly, the Pledge Corporate Guidelines aim to make it easier for corporates to implement its pledge to support diversity by providing specific factors for corporate counsel to consider when involved in the appointment of arbitrators, the selection of counsel teams for arbitration and even in the workplace.
When involved in the appointment of arbitrators, The Pledge Corporate Guidelines encourage corporates to:
- Consider appointing women as arbitrators on an equal opportunity basis
- Try to request at the outset of the arbitrator selection process that external counsel apply the principles embodied in the ERA Pledge when drawing up a list of potential candidates
- Try to ensure any list of potential arbitrator candidates includes a fair representation of women
- Endeavour to call out any non-diverse list and encourage further consideration be given to equally qualified female candidates who could be included in the list
- Consider using the Pledge Arbitrator Search function (and other available search tools) to help identify qualified female arbitrator candidates
- Try to include a fair representation of women when proposing candidates for Chair and encourage the nominated arbitrators and other parties in the proceedings bear the aims of the ERA Pledge in mind when considering the appointment of the Chair
- Make efforts to track and report the proportion of female arbitrators appointed and, where appropriate, share this diversity data internally
- Consider adopting internal targets, where necessary, to increase the proportion of women the company is appointing as arbitrators to improve the diversity of arbitrator appointments and track these targets at regular intervals to monitor progress
When involved in selecting external counsel teams for arbitrations, the Pledge Corporate Guidelines encourage corporates to endeavour to select diverse external counsel teams consistent with each organisation’s internal diversity and inclusion policies or practices.
Finally, in the workplace, the Pledge Corporate Guidelines encourage corporates to become familiar with the ERA Pledge and the Corporate Guidelines and share them with colleagues involved with the appointment of arbitrators, endeavour to provide female colleagues equal opportunities with respect to speaking at external arbitration events and conferences and consider other ways to help them to raise their profile in the arbitration space.
Co-chair of the Pledge Corporate Sub-Committee, Samantha Bakstad of BP, states, ‘It is now widely understood that diversity and plurality of thought are good for business, which is why organisations around the globe have, for several years now, made gender diversity commitments. Arbitration – being one of just a handful of instruments available to businesses to resolve their commercial disputes – should be no different. In short, arbitration should reflect the diversity of its corporate users. The Corporate Guidelines were drafted by a committee of senior in-house dispute practitioners with the aim of equipping corporate signatories of the ERA Pledge (current and future) with a best practice guidance note which outlines concrete steps that corporates can take in this space to improve, amongst other things, the profile of female arbitrators within their organisations. Our hope is that by incorporating these practical steps into their daily working practices, corporate users of arbitration will be better equipped to appoint the right arbitrator for the case in hand (rather than resorting to the “tried and tested” pool) and that this will result in a greater number of females being appointed to tribunals by corporates.’
Founder and co-chair or the Pledge’s Global Steering Committee and co-chair of the Pledge Corporate Sub-Committee, Sylvia Noury, remarks: ‘While the number of women being appointed to arbitral tribunals is steadily improving, generally this is due to increasing appointments by arbitral institutions. The ERA Pledge, with the assistance of a Sub-Committee of corporate sponsors committed to gender diversity, is issuing these Corporate Guidelines as part of its drive to boost the number of women appointed to tribunals by the parties, where these is still much room for improvement. We’re grateful for the support of our Corporate Sub-Committee and hopeful that these practical guidelines will help move the dial.”
The members of the Pledge Corporate Sub-Committee, co-chaired by Samantha Bakstad and ArbitralWomen member Sylvia Noury, together with Secretary Ashley Jones, include ArbitralWomen Board members Dana MacGrath and Alison Pearsall, ArbitralWomen members Yasmin Mohammed and Giulia Previti, together with Arjun Agarwal, Gwendoline Brooker, Sapfo Constantatos, Karl Hennessee, Kelly Herrera, Nav Juty, Beatriz Saiz Marti, Patrizia Masselli, Sarah Walsh, Kate Wilford and Thomas Wright Jr. Ashley Jones is Secretary to the Corporate Sub-Committee.
Submitted by Dana MacGrath, Omni Bridgeway Investment Manager and In-House Legal Counsel, ERA Pledge Corporate Sub-Committee Member, ERA Pledge Steering Committee Member, ArbitralWomen President and News Director