Bringing Diversity Back into the Arbitral Process

This article is part of the "International Arbitration Perspectives" series. 

Arbitration may have just become “litigation by another name”, with rising costs and longer processes – a realisation that has called for an industry reset in recent years. 2025 saw an increased focus around the importance of arbitrators’ diversity of expertise as a key benefit of arbitration and a path back to its original promise: a fair, fast, and final mechanism for the resolution of disputes. To move forward, arbitration must look back.

Arbitrators’ Diversity of Expertise

Historically, arbitration flourished because disputes were decided by peers - merchants, engineers, or master mariners - who understood the business context and could thus quickly and effectively resolve the dispute. Reporting on the inauguration of what would become the LCIA, the Law Quarterly Review said in 1891: “commercial interests were also seeking the adjudication of their disputes by their own; by a tribunal precisely familiar with the area of business in which the dispute had arisen”. Arbitrators’ technical and commercial expertise was a key (if not the key) selling point of arbitration.

But this has been completely lost. Practicing lawyers and former judges now represent the vast majority of appointments. Non-lawyer arbitrators are extremely rare, if not nonexistent, except in niche areas where their inclusion is still regarded as working well (e.g., in maritime, sport and commodities arbitrations¹).

In 2025, leading arbitration practitioners challenged this status quo,² calling for a return to non-lawyer arbitrators. Research also confirms that diversity leads to better decision-making, with groups of diverse problem solvers generally outperforming groups of high-ability problem solvers with the same background.³ This is particularly relevant in the context of international arbitration where the large majority of cases involve highly technical issues.

As Professor Doug Jones said, “[a] panel with diverse expertise, particularly of non-legal disciplines, is likely to bring about a more effective process and a better outcome”. Having technical arbitrators that are knowledgeable of the issue at hand would enable them to get to the heart of the matter more quickly, leading to more efficient proceedings, better evidence (an expert wouldn’t dare be partial as this would be obvious to the industry expert arbitrator) and probably more robust awards.

Diversity of Proceedings (or Lack Thereof)

Today’s lawyer-heavy tribunals (often three practicing lawyers or former judges) tend to default to court-like procedures, which over time has contributed to longer (and thus more costly) arbitrations, with little procedural flexibility and no tailoring to the complexity and requirements of each case.

Arbitrators’ due process paranoia hasn’t helped. Arbitrators are now too scared to proactively manage an arbitration, although to this date, the actual risk of a court setting aside an award because of misconduct by the arbitrator in their procedural handling of the case is very low. Increased lawyering and tendency for a “more is more” approach are compounding the issue even further.

The latest ICC arbitration statistics (released in 2025) reflect this: the average duration of each arbitration is 26 months and the median is 24 months.⁴ In fact, those figures are heavily skewed because an institution like the ICC deals with a lot of small cases, meaning that larger, complex arbitrations last much longer.

Going Forward

In 2026, as means to achieve more time and cost-efficient proceedings, we expect that:

• “Technical” arbitrators will regain momentum, be they lawyers or non-lawyers as long as they have extensive technical expertise or direct working experience in a given industry (representation of clients isn’t enough).
  
  
• Parties and tribunals will include language in the Terms of Reference whereby the parties expressly agree that (1) the tribunal is empowered to manage the case proactively and (2) any party misbehaviour can be reflected in the allocation of costs.
  
  
• Arbitration institutions will continue to expand existing procedural mechanisms and introduce new ones to provide more speedy and effective resolution of dispute. The flourishing of expedited procedures is a clear example of this (see our alert our here).
  
  
• Outside formal courtrooms, Artificial Intelligence (AI) is already taking binding “judicial like” decisions on consumer claims and other micro-commercial disputes, constituting the largest automated justice system in the world. The systems of some major ecommerce platforms handle over 60 million disputes annually and use multimodal AI to analyse video evidence of “unboxing” or product defects to issue instant refunds or denials. 2025 has seen the launch of the world’s first AI arbitrator by the American Arbitration Association – International Centre for Dispute Resolution (see our alert here) to provide a quicker and cheaper mechanism for resolution of straightforward, document only disputes. In the longer term, this may lead to the development of a binary arbitration system where simple disputes will be settled through AI and only more complex, high-stake disputes will require human arbitrators’ intervention.

^{1 Notably, the London Maritime Arbitration Association requires arbitrators to have at least 15 years’ experience in the shipping industry; Grain and Feed Trade Association (GAFTA) arbitration is run by arbitrators with trade knowledge and legal representation is only permitted with the parties’ agreement; sports arbitrations under the Court of Arbitration for Sport in Lausanne or Sports Resolutions in London are regularly conducted by a mix of lawyers and sporting officials.}

^{2 See in particular: Centre for International Arbitration Australia Annual Lecture 2025, 14 October 2025, Diversity of Expertise in Arbitration: The Past, Present and Future, Prof. Doug Jones}

^{3 See for example: Groups of diverse problem solvers can outperform groups of high-ability problem solvers, Lu Hong and Scott E. Page, University of Michigan, 2004; Better decision through diversity, Katherine W. Phillips, Katie A. Liljenquist, Margaret A. Neale, Kellog School of Management, 2010.}

^{4 ICC Dispute Resolution 2024 Statistics}