Arbitration practitioners have progressively come to recognise the importance of increased transparency in preserving confidence and ensuring arbitration’s continued growth and acceptance around the world.

To a significant degree, 2016 was the year of transparency, with numerous important developments around the globe, including ICC’s ground-breaking decision to publish the names of arbitrators serving in cases administered by it. This decision, adopted unanimously and announced in December 2015, applies to arbitrations registered with the ICC Court from 1 January 2016.

Disclosure vs privacy

The list, first published on ICC’s website in June 2016, includes each arbitrator’s name, nationality, position on the tribunal, and appointment method. The list also states whether the arbitrator remains involved in the case and if the case is pending.

ICC does not publish the case reference number or the names of the parties or counsel, so as to preserve the confidentiality of the proceedings, which is an important factor that parties frequently seek through arbitration. Moreover, parties have the additional option, by mutual agreement, to opt out of even these limited disclosures to preserve their privacy interests.

Tribunal composition

To date, ICC has published arbitrator information for 162 cases, covering more than 300 appointments (http://www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/ICC-Arbitral-Tribunals/). Of the published cases, 87 (almost 50%) involved sole arbitrators and 75 involved three-member panels.

Of the 87 sole arbitrators included in the current list, 59 (almost two thirds) were appointed by the ICC Court or another appointing authority, and 28 were appointed by agreement of the parties.

The 75 three-member tribunals present a more complex, but fascinating picture. Of the 151 co-arbitrators (one arbitrator was replaced), only 6 were appointed by the ICC Court. The rest, as would be expected, were designated by the parties to the arbitration.

By comparison, only 3 tribunal presidents were appointed by agreement of the parties, while 47 by agreement of the two co-arbitrators, and 25 by the ICC Court. This means that the parties – directly or indirectly – selected 60% of tribunal presidents, but almost 95% of the co-arbitrators.

Arbitrator diversity

Among the most important benefits resulting from the ICC’s movement towards transparency is substantially greater clarity regarding arbitrator diversity. In particular, gender diversity among arbitrators remains a significant concern and – despite data revealing that considerable work must still be done to improve the balance – it is clear that change is under way.

A total of 51 women were appointed among the 313 appointments. This represents a rate of approximately 16%. Among the 145 co-arbitrator nominations by the parties, only 17 were women (11%).

Few women served as tribunal presidents, regardless of the method of their appointment. Overall, only 10 of 75 tribunal presidents were women (13%). Of these, only 3 of 31 tribunal presidents appointed by the ICC Court (10%) and 7 of 47 tribunal presidents nominated by the co-arbitrators were women (15%).

On the other hand, interestingly, women were more frequently appointed as sole arbitrators. Of 87 sole arbitrators listed, 24 were women (27%). Of these, 15 (63%) were appointed by the ICC Court. Overall, 15 of the 58 sole arbitrators appointed by the ICC Court (26%) and 9 of 28 sole arbitrators appointed by an agreement of the parties (32%) were women.

Much of this data is consistent with a study conducted in September 2016 (http://kluwerarbitrationblog.com/2016/09/13/icc-arbitrator-appointments-a-first-look-at-the-data), particularly with regard to the strong role played by ICC as an institution in recent years in promoting diversity among its appointments.

The Pledge initiative (http://www.arbitrationpledge.com/) has significantly contributed to this laudable movement. To date, the Pledge has 1,658 signatories, including numerous bar associations and arbitral institutions.

In addition to gender diversity, ethnic and national diversity remains an area of great interest and, at times, concern. Several of the ‘usual suspects’, including the United States, France, and the United Kingdom, receive notably high rates of appointments, but this is to be expected given their high rate of participation in ICC proceedings. As in the September 2016 study mentioned above, Switzerland is remarkably well represented, with Swiss arbitrators appointed 45 times (approximately 15%). Overall, however, the list of arbitrators reveals an outstanding number of countries represented, including from throughout Latin America, Asia, and Eastern Europe.

Conclusions

ICC’s decision to publish the list of arbitrator appointments has provoked considerable dialogue among arbitration practitioners around the globe. It has fostered noteworthy discussions concerning issues such as confidentiality and diversity, which have and will continue to stimulate efforts to reinforce arbitrator diversity. Such efforts have proliferated in recent years and will continue to gather strength, at least in part based on the additional data available today.

Under the leadership of the President of the ICC Court, this transparency initiative has placed ICC at the forefront of institutions seeking to make arbitration more open and accessible. Coupled with the record-setting number of cases in 2016, ICC is making great strides.