The ERA Pledge – New Guidelines for the Bar

September 2024 saw the launch of a new diversity initiative for the Bar of England & Wales: the Equal Representation in Arbitration (ERA) Pledge Guidelines for the Bar. The Guidelines promote gender equality and access to equal opportunities for the appointment of counsel in arbitration, arbitrators and other career development and profile-raising opportunities in the fields of both domestic and international arbitration. Other legal sectors have developed their own guidelines and the aim of these Guidelines is to continue and support the impetus for change for those involved in arbitration at the Bar.

Arbitration matters – International arbitration is used by private corporations and state-owned enterprises to resolve commercial disputes all over the world, on their own terms often with more flexibility and privacy than protracted court trials.¹ According to the Law Commission – which keeps the law of England and Wales under review – there are at least 5,000 domestic and international arbitrations each year in England and Wales worth £2.5 billion to the British economy in arbitration and legal fees alone.²

Equality, diversity and inclusion (EDI) also matter. The legal profession at all stages should reflect the society it serves: those who represent others and those who decide disputes should be reflective of the diversity of the population that is served. Without EDI there is unfairness, a lack of quality and a real risk of alienation.

The global arbitration community recognized in 2015 that women were under-represented on international arbitration tribunals. In response, the Equal Representation in Arbitration (ERA) Pledge was launched as a call to the international arbitration community to achieve fair representation as soon as practically possible. It was one of a number of initiatives in the following decade which have been successful.  The figures speak for themselves. The proportion of women appointed as arbitrators globally has nearly doubled between 2015 and 2021 (from 12.6% to 26.1%).³

But there is of course still work to do. Whilst several of the main arbitral institutions are nearing or have reached gender parity in their appointments, party appointments remain some way behind. As the Chartered Institute of Arbitration noted in their response to the Law Commission in 2023  “[a]rbitrators still tend to be overwhelmingly male, and in the international context, Causcasian males from the northern hemisphere, whether as a result of conscious or unconscious bias”.⁴

It is against this backdrop that the ERA Pledge Guidelines for the Bar were issued. As Lord Neuberger said “it is much, much, easier to talk, write, compile statistics and pontificate about these important issues that it is actually to do something about them”.⁵ These Guidelines identify concrete and actionable steps that individual barristers, their Chambers’ practice managers and business development teams and Chambers as a whole can take to actually do something about EDI. The following three areas are covered, and each ERA Pledge signatory undertakes these key commitments wherever practically possible.

When involved in the appointment of arbitrators,  

• To consider appointment of women as arbitrators on an equal opportunity basis
• Requesting at the outset of the selection process that all involved apply the ERA Pledge’s principles when drawing up a list of potential candidates for appointment
• Ensuring any list of potential arbitrator candidates includes a fair representation of women
• Challenging any non-diverse list and encouraging further consideration be given to equally qualified female candidate who could be included
• Using the ERA Pledge Arbitrator Search function to help identify female arbitrator candidates with the required criteria.

When opportunities arise in arbitration,

• Providing and promoting female barristers’ equal opportunities with respect to counsel appointments, committee membership, chair positions and speaking at external arbitration events and conferences
• Encouraging mentorship and support from senior and experienced leaders at the Bar.

When having the chance to spread the word,

• Reading and familiarizing yourself with the ERA Pledge and these Guidelines and sharing them with others involved with the appointment of counsel, arbitrators and other career opportunities in arbitration and encouraging them to do the same.

We have written this article in response to that last commitment. There is so much being done in this field recognising that diversity, is and must be broadly defined, to include racial, ethnic, cultural, generational, as well as gender diversity.  These Guidelines for the Bar, represent one small positive step against which progress can be monitored. The aim is to continue the progress towards parity with an increased proportion of women being appointed as arbitrators, by parties, as well as institutions, and an improved diversity of potential arbitrator candidates across all three areas.

Submitted by ArbitralWomen members and founding members of the Equal Representation in Arbitration Pledge’s UK Bar Sub-Committee Sian Mirchandani KC (Co-Chair), Anneliese Day KC, and Marion Smith KC.