On 5 December 2024, the London Court of International Arbitration (the "LCIA") released new Equality, Diversity and Inclusion ("EDI") Guidelines (the "Guidelines") which are available here.
While non-binding, the Guidelines provide insight into the LCIA's recommendations (1) for integrating EDI principles at different stages of an arbitration; and (2) as relevant to key stakeholders in an arbitration (parties, legal representatives, arbitrators and the LCIA as an institution).
This alert briefly describes the substance and relevance of the new guidelines.
Background
The Guidelines were developed in collaboration with senior arbitration professionals as part of the LCIA's EDI initiative that was launched in May 2024, specifically the "Promoting Best Practice" pillar. The initiative aims to advance inclusivity within the arbitration community through the integration of EDI at different stages of an arbitration.
Structure
The Guidelines start by setting out definitions of the values of Diversity, Inclusion and Equality that are central to their purpose. They then highlight the positive outcomes that can result from applying EDI principles – including fairness, legitimacy and the enhancement of decision quality.
Practical guidance as relevant to stakeholders is set out across two sections:
- Section I outlines specific practices and considerations for integrating EDI principles at key stages of the arbitration process, including in candidate selection (e.g., for legal representatives, arbitrators and experts), in adopting appropriate procedures, and in communications.
- Section II provides tailored guidance for key stakeholders in the arbitration process, including practical insights into how each group can implement EDI principles in their roles.
In this alert we have summarised select key points from across sections as relevant to stakeholders.
Guidance for stakeholders
As a starting point, the Guidelines encourage stakeholders and users of arbitration to apply an EDI lens to all decision-making points. They then set out some specific suggestions as to actions that stakeholders can take to promote the core values of equality, diversity and inclusion in their work.
Arbitrator and Expert witness Selection
The Guidelines offer practical advice on how parties and legal representatives can apply EDI values to the arbitrator selection process. In particular, the Guidelines propose a series of considerations that may assist in conducting searches for, and compiling shortlists of, potential arbitrators. These include:
- Ensuring the selection process is accessible to and takes account of all potentially suitable candidates, regardless of background;
- Using varied and creative search terms to widen the candidate pool;
- Adopting objective (such as experience and qualifications) – rather than subjective – criteria when comparing candidates; and
- Giving meaningful consideration to diverse candidate lists to avoid tokenism and increase the likelihood of genuine selection.
The LCIA is encouraged to provide training to casework counsel who propose arbitrator candidates to the LCIA Court and to publish statistics on arbitrator and tribunal secretary appointments (including data on gender, nationality, and tracking first-time and repeat appointments).
Arbitrators are encouraged to issue clear directions highlighting the importance of diversity in the appointment of expert witnesses. The Guidelines recommend that the LCIA encourage tribunals, parties, and their legal representatives to provide data on experts engaged in LCIA-administered arbitrations.
Hearing Procedure
The Guidelines encourage all stakeholders to open a dialogue early on re the potential barriers to participation. A suggested option is the formalising of a commitment early on by way of the first procedural order ("PO1"), with such order being referred to throughout the proceedings. The Guidelines propose template language to this effect and encourage Arbitrators to also consider using this language in PO1.
Inclusive Conduct
The Guidelines emphasise the encouragement of inclusive conduct by all stakeholders including through fostering equal participation by modelling inclusive behaviours. Some examples are set out within both Sections I and II, including: consideration to communication styles, usage of gender-neutral language and language respectful of diverse personal characteristics. Arbitrators are also encouraged to maintain an environment where first-time expert appointees can confidently present their testimony.
Other considerations for parties and legal representatives
When appointing tribunal experts or secretaries, arbitrators are encouraged to apply the same EDI considerations outlined for the selection of arbitrators by parties and legal representatives.
The Guidelines are also relevant to the "pre-arbitration" stage - they encourage parties and legal representatives to consider including specific EDI provisions in their arbitration agreements, and to subsequently take into account EDI principles when forming legal teams, and in the participation of members of the team (e.g., enabling more junior members to conduct advocacy where appropriate.)
Looking forward
As a practical conclusion, the application of these Guidelines will ultimately need to be assessed on a case-by-case basis. The Guidelines are clear that their intention is to facilitate the flexible adaptation of proposed concepts and considerations by all stakeholders where feasible. Expressed as non-binding recommendations, the emphasis is on promoting the application of EDI values. It is also anticipated that the Guidelines may be updated over time in response to user data and experience.
Arvana Chana (Trainee Solicitor, White & Case, London) and Lily Thompson (Vacation Scheme Participant, White & Case, London) contributed to the development of this publication.
White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.
This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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