Gender balance marches on at a slow but not uniform pace in shipping, and one of the ranks with an especially long lag is dispute resolution.
Last week at its annual meetings in New York, the US Maritime Law Association (MLA), led by Holland & Knight lawyer Chris Nolan, turned its attention to promoting women in arbitration.
Today, just five of the 75 members of the New York-based Society of Maritime Arbitrators (SMA) are women, SMA president LeRoy Lambert told TradeWinds at the MLA sessions.
At the London Maritime Arbitration Association (LMAA), the shipping world’s favourite fight club, conditions are better. They are not better by miles. Women number “just shy of 15%” of full members, according to LMAA past honorary secretary Daniella Horton.
In some other commercial fields such as intellectual property, women have come much further than that, according to Lorraine Brannan, one of the founders and a past president of Arbitral Women, and a New York-based arbitrator and mediator in non-maritime matters at US dispute resolution firm JAMS.
But why does shipping lag behind other industries, and why does arbitration lag behind the rest of shipping?
The diagnosis is not a difficult one but has a surprising wrinkle.
The not-difficult part
The not-difficult part is that arbitration is about proven experience. Shipping people with a bone to pick with other shipping people want to be judged by knowledgeable shipping peers. Experience is at a premium.
And bodies at rest tend to remain at rest.
“I don’t think there’s any blame to be laid at anybody’s feet,” said the LMAA’s Horton. “You’ll be choosing your arbitrators from a more senior group of people.”
Gender balance in shipping, in general, has improved, but the top shipping people with long experience are only just beginning to be women because men have only been gradually dislodged by retirement from the top positions.
“There will be more women in arbitration for two reasons,” said the SMA’s Lambert. “First, women are progressing to the point in their careers that they want to do it, and second, women increasingly have a say as executives in who is appointed as arbitrator.”
Weirdly, shipping charterparties still often contain dispute resolution clauses calling for arbitration by “commercial men”. Fortunately, Horton explained, English case law has long since made it clear that “commercial” people with enough experience can ignore and leap over that gendered hurdle and ignore the “men” part.
The surprising wrinkle is that bar and arbitration associations unintentionally perpetuate the gender lag for reasons that were never supposed to be gendered.
Their by-laws often include a time-based quarantine meant to prevent conflicts of interest.
Ethics rules of the International Bar Association discourage the appointment of arbitrators who could have represented or opposed a party within the past three years. This affects LMAA arbitrators, said Horton.
SMA arbitrators stand behind a more stringent cordon sanitaire. Lawyers formerly in private practice must wait five years — down from 10 years a little over a decade ago — before serving as SMA arbitrators.
In practice, that means arbitrators are retired lawyers, and thus male.
Does it matter so much that gender balance is coming more slowly to the arbitration panels than to chartering desks or ship management?
Everybody knows arbitration as a time and money-saving alternative to the civil courts, but not everybody realises it did not originate that way. It’s almost exactly the other way around.
For centuries before national civil courts could be bothered with their troubles, shipping and trading interests were appointing trusted commercial people to arbitrate their disputes.
And even if today’s arbitration bodies, such as the LMAA and the SMA, date back only a few decades, they represent a continuation of the same institution that Henry VIII’s right-hand man Thomas Cromwell was taking part in half a millennium ago.
And the long roots of an institution are what makes it slow to change.
But time will work its wonders, and one step towards a solution comes from Arbitral Women: a gender-based arbitrator search engine.
A disputant wanting to contribute to arbitrator equity can type the desired criteria into the ArbitralWomen.org search engine — what kind of alternative dispute resolution? which commercial field? what national residence? — and receive a list of suitable candidates.
But the list that came back for TradeWinds on 9 May included only 27 women worldwide.