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Summary of relevant literature advocating for greater gender/ethnic

representation in Investor State Dispute Settlement arbitral panels/bodies.

It has been described that the common arbitrator is male, white, mature, a lawyer
and from a developed or western country.1Others portray the picture of
international arbitrators as pale, male, stale.2 The following paragraphs look into
three main issues: 1) why should diversity both in terms of gender and ethnicity
matter in international arbitration; 2) how did the current situation come about i.e.
why are women and arbitrators of difference ethnicity or nationality
underrepresented in arbitral bodies and finally 3) what are some possible ways of
reforming these arbitral panels.

Before looking into the three main issues, it would be useful to have an overview
of what a lack in diversity in international arbitral panels looks like. While there is a
lack of comprehensive data about the number of female international arbitrators,
the following information might be useful. According to data from the Arbitration
Institute of the Stockholm Chamber of Commerce (SCC) in 2015, only 39 of the
279 appointments were women.3 Similarly, statistics published by the London
Court of Arbitration (LCIA) reveal that only 11.5% of appointed arbitrators in LCIA
arbitrations in 2013 were women.4 Professor Susan Franck conducted an in-depth
research into investment treaty arbitrations in 2006 by studying the composition of
arbitral panels of investment treaty arbitrations that were publicly available at that
time. Her study covered 100 tribunals involving 145 arbitrators. Of the 145
arbitrators only 5 of them were women, leading to her conclusion that women
occupies only a tiny fraction in the international arbitration landscape.5

As for ethnic or cultural representation in international arbitration, statistics from


the International Centre for Settlement of Investment Disputes (ICSID)
demonstrated that 68% of arbitrator appointments in ICSID cases come from
Western Europe and North America, despite the fact that only 6% of these cases
involve a state party from Western Europe and North America.6 Jacobs also
studies the underrepresentation of Africans in international arbitration despite the

1 Adriana Braghette, Diversity and Regionalism in International Commercial Arbitration, 46


VICTORIA UNIVERSITY OF W ELLINGTON LAW REVIEW 12451258, 1245-1258 (2015),
http://search.informit.com.au/documentSummary;dn=842736154015939;res=IELHSS.
2 Michael esidente Michael D. G, A woman who sits as president of a major arbitral tribunal
is a rare creature. Why? , THE AMERICAN LAWYER (2004),
http://www.arbitralwomen.org/DesktopModules/Bring2mind/DMX/Download.aspx?
EntryId=8&Command=Core_Download&language=en-GB&PortalId=0&TabId=1117.

3 New SCC statistics on appointments of female arbitrators (30 June 2016),


reported at http://www.sccinstitute.com/about-the-scc/news/2016/newsccstatistics-on-appointments-of-female-arbitrators/.
4 Lucy Greenwood & Mark Baker, Getting a Better Balance on International Arbitration
Tribunals, 28 THE JOURNAL OF THE LONDON COURT OF INTERNATIONAL ARBITRATION (2012),
https://www.cpradr.org/news-publications/articles/2013-01-08-getting-a-better-balance-oninternational-arbitration-tribunals-jrnl-of-london-ct-of-int-l-arb.

5 Susan Franck, Empirically Evaluating Claims About Investment Treaty


Arbitration, 86 N.C. L. Rev. 1 (2007).
6 The ICSID Caseload - Statistics (Issue 2013-1), http://icsid.worldbank.org/
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African states often being a party to investment disputes. From his study,

Using the data from ICSID in 2014 as a sample, 70 % of ICSID arbitrators are
from Western Europe and North America; a mere 2% are from Sub-Saharan
Africa. Compare that with the claims data: 1% of ICSID cases involved Western
European states as host state defendants, yet more than 16% of all ICSID
cases involved African State respondents. Of the 148 individual arbitrator
appointments made by the parties and by ICSID in 2014, only 3 were nationals
of countries from Sub-Saharan Africa.7

As such, current international arbitral bodies clearly suffer from a lack of diversity
both in terms of gender and nationality. However, why does diversity matter? In what
ways does it affect the quality of the arbitration?

It has been argued that diversity makes the arbitration more legitimate both from the
perspective of the parties involved and from general public.8 The hidden premise
here is that those who use any service under the national judiciary system would
want to see a cross section of society reflected in the judiciary 9. A lack of diversity
may also mean judgments based on a more narrowly informed body of doctrine10. A
diverse judiciary is also said to be an indispensable requirement for any democracy.
11

Secondly, the original purpose for an international arbitration system includes the
efforts to help different state parties solve their disputes through processes that are
neutral and not affiliated with either party12. A lack of diversity could result in serious
biases and therefore reduces its objectiveness and neutrality.

Thirdly, diversity essentially entails the expansion of the number of arbitrators that
clients could select. The increase in competition may foster efficiency and enhance
quality.13 Besides, the fact that there are a large number of women and individual of

7 Becky Jacobs, A Perplexing Paradox: De-Statification of Investor-State Dispute


Settlement?, 17 EMORY INTERNATIONAL LAW REVIEW (2015),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2691680.
8 Emmanuel Gaillard, The Representations of International Arbitration, 1 JOURNAL OF
INTERNATIONAL DISPUTE SETTLEMENT 271281, 271-281 (2010).
9Paul Friedland, ARBITRATION CLAUSES FOR INTERNATIONAL CONTRACTS (2007).
10 Michael Waibel, Are Arbitrators Political?,SSRN ELECTRONIC JOURNAL (2012),
https://www.researchgate.net/publication/256023521_Are_Arbitrators_Political.
11 Baroness Brenda Hale, THE APPOINTMENT AND REMOVAL OF JUDGES: INDEPENDENCE AND
DIVERSITY INTERNATIONAL ASSOCIATION OF WOMEN JUDGES 8 TH BIENNIAL CONFERENCE (2016).
12 Susan Frank et al., The Diversity Challenge: Exploring the Invisible College of
International Arbitration, 53 COLUMBIA JOURNAL OF TRANSNATIONAL LAW 429, 429
(2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611214.

13 Diane Desierto, Rawlsian Fairness and International Arbitration, 36 UNIVERSITY OF


PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW (2015),
https://www.law.yale.edu/system/files/area/center/privatelaw/document/desierto_rawlsian_fair
ness_and_international_arbitration.pdf.
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different nationalities entering the legal profession each year but only a few of them
are qualified to become arbitrators may suggest that these legal practitioners have
been overlooked for reasons unrelated to their capabilities and credentials.

It is also frequently argued a diverse team often works as a better team.14 Pluralistic
perspectives help minimize the psychological phenomenon of group think and
promote critical thinking and creativity. It has also been shown that diverse teams are
better equipped to come up with solutions for complex challenges and are more taskoriented.15 The availability of diverse views in a panel also helps arbitrators to see
things in context. We can imagine, for instance, that there might be inherent biases in
a situation where a young Latino woman is compelled to arbitrate with her boss, a
white male with other three white arbitrators, concerning her employment issue. The
power relation is so imbalance that it would make the woman feels intimidated and
might impact the decision of the arbitrators.16

Studies have also been conducted to analyze the differences between men and
women in terms of their communication and decision-making patterns. A recent study
found that while stress often reduces empathetic abilities in men such as the ability to
relate and recognize to other peoples emotions, such abilities are enhanced in
women who are under stress.17 Besides, it has been suggested that stressed males
tend to become more self-centered and less able to distinguish their own emotions
and intentions from those of other people.18 This finding is relevant because
arbitration room constitutes a high-stress environment. A tribunal that comprises
mostly or only men, then, is not an optimal situation.

What are the reasons for the status quo? First of all, international arbitration is a
historically Anglo-European invention19. It first began in the context of the
Revolutionary War between the U.S. and the Great Britain where the two countries
soon signed the Jar Treaty creating a process for resolving property disputes that
arose during war.20 Contemporary international arbitration is a product of the New
York Convention developed shortly after the Second World War. The International
Chamber of Commerce pushed this treaty and eagerly encouraged countries to
accept it. It has been argued that the dominance of Anglo-Europeans in investorState arbitration tribunals today is unsurprising since it is a system built on the

14 Leon Barry, Increasing Diversity among Arbitrators and Mediators: The


Magic Bullet, TDM 4 DEALING WITH DIVERSITY IN INTERNATIONAL
ARBITRATION (2015), https://www.transnational-disputemanagement.com/article.asp?key=2247#citation.
15 Caley Turner, Old White Male: Increasing Gender Diversity in Arbitration
Panels, Pepperdine Law School (2014)
16 Ibid.
17 Ibid.
18 Nora Murphy, Judith Hall & Randall Colvin, Accurate Intelligence
Assessments in Social Interactions: Mediators and Gender Effects,
71 JOURNAL OF PERSONALITY (2003),
https://www.ncbi.nlm.nih.gov/pubmed/12762423.
19 Dolinar Hikawa, Beyond the Pale: A Proposal to Promote Ethnic Diversity Among
International Arbitrators, 12 TRANSNATIONAL DISPUTE MANAGEMENT (2015),
http://www.sidley.com/~/media/publications/tv124article17.pdf.

20 Ibid.

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imbalance power relations between Anglo-European and non-Anglo-European


states.21 Arbitration relating to investment dispute first began with a bilateral treaty
signed between Pakistan and Germany in 1959 and has greatly expanded ever
since. Instead of being a universal consensus, the norm of international arbitration
could be seen as something forced upon Non-Anglo-European countries by AngloEuropean countries since Non-Anglo European countries who were less affluent and
developed were eager to enter in bilateral investment agreement with the more
Anglo- European countries and so they would not have objected the treaty simply
because of the compulsory arbitration clause.22

The selection method of arbitrator is also unconducive to promoting diversity within


the arbitration community. For example, for party-appointed arbitrators, language
barriers and former litigants hesitation to share anecdotal information about the
selection process make it difficult for current litigants to acquire information about
arbitrators conduct and decisional track record.23 The fact that most arbitrations are
protected by the confidentiality clause also means that important information such as
awards or the arbitrators judgements are available for public access.24 As a result of
such information deficiency, current litigants often prefer to select exceptional and
well-known arbitrators rather than picking a fresh arbitrator. Besides, Dezalay and
Bryant G. Garth indicate that there is a feedback loop within the main arbitration
institutions. It occurs when lawyers, co-arbitrators, and chairs of the arbitral tribunals
become familiar and inevitably nominate each other.25 This feedback loop might
partly explain why arbitrators have been historically dominated by Anglo European.
There is a considerable amount of literature on the issue of underrepresentation of
women in international arbitration. On the supply side of the problem, it is said that
the most significant reason why women are underrepresented in international
arbitration is because women have a much lower chance than men to reach senior
positions in the legal field.26 Despite the fact that women comprise more than half of
those entering the legal profession as fresh graduates, less than 1/3 of women in the
legal field make it to the partner level. It has also been pointed out that women have
a far greater chance of occupying positions - like staff attorneys, counsel, and fixedincome equity partners with diminished opportunity for advancement or
participating in firm leadership.27 This phenomenon commonly known as pipeline
leak is said to be resulted from various factors, including office climate, difficulties in
managing dual careers, lack of female role models and mentors, lack of flexible work

21 Ibid.
22 Ibid.
23 Catherine Rogers, The Vocation of International Arbitrator, PENN STATE LAW (2005),
http://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1234&context=fac_works.
24 Choudhury, Barnali, Recapturing Public Power: Is Investment Arbitration's
Engagement of the Public Interest Contributing to the Democratic Deficit?.
Vanderbilt Journal of Transnational Law, 2008. Available at SSRN:
https://ssrn.com/abstract=1070701
25 Yvez Dezalay & Bryant Garth, DEALING IN VIRTUE: INTERNATIONAL COMMERCIAL ARBITRATION
AND THE CONSTRUCTION OF A TRANSNATIONAL LEGAL ORDER (1996).

26 Caley E. Turner, Old, White, and Male: Increasing Gender Diversity in


Arbitration Panels, 2014, available online at
http://www.cpradr.org/Portals/0/Old_White_and_Male_Increasing_Gender_Div
ersity.pdf
27 Deborah Rothman, Gender Diversity in Arbitrator Selection, DISPUTE
RESOLUTION MAGAZINE 2324, 23-24 (2012),
http://c.ymcdn.com/sites/www.wlala.org/resource/resmgr/imported/rothman.pd
f.
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options and attitudes to flexible working.28

The fact that the arbitration profession is rather enclosed and elitist also keeps
women out of the field. As Margaret Leibowitz, a prominent arbitrator aptly pointed
out, many arbitrators are chosen through the old boy network in which men have
traditionally taken care of each other professionally. 29The lack of such women
arbitrators clubs or networks lessens the chance for women to enter the profession.
The fact that not many female arbitrators are visible publicly also discourages female
legal practitioners to consider arbitration as a possible career prospect.
On the demand side of the problem, it has been posited that our decisions and
behaviors are frequently under the influence of gender bias and stereotypes, albeit
we might not be aware of it.30 A study shows that journal articles written by a female
author received a worse rating when reviewers are aware that the author was a
woman than when it was anonymous.31 A Swedish study of postdoctoral fellowships
awarded showed that female awardees needed substantially more publications to
achieve the same rating as male awardees.32 Consider, for example, the experiences
of Jean McKelvey, a female arbitrator with a gender-neutral first name. McKelvey
reports that she has been selected to arbitrate cases more often than any of her
female peers, but only because of her gender-neutral first name; the parties were
always surprised when she walked into the arbitration room, and it was readily
apparent that the parties had been expecting a man.33
Increasing gender and ethnic diversity of arbitral panels

While there is generally consensus that international arbitral panel lacks diversity,
there are rather different views concerning how to break the homogeneity of the
panel.

Some commentators argue the responsibility to increase panel diversity should rest
with arbitration institutions themselves. Rogers pointed out in her essay that
arbitration institutions are the primary regulators of international arbitrators34 and
play a significant role in arbitrator appointments, thus it naturally follows that these

28 Lucy Greenwood, Unblocking the Pipeline: Achieving Greater Gender


Diversity on International Arbitration Tribunals, 42 INTERNATIONAL LAW
NEWS (2013),
http://www.americanbar.org/publications/international_law_news/2013/spring/
unblocking_pipeline_achieving_greater_gender_diversity_international_arbitra
tion_tribunals.html.
29 Dorissa Bolinski & David Singer, Why Are So Few Women In the ADR Field?,
ARBITRATION JOURNAL (1993), http://connection.ebscohost.com/c/articles/9401280133/whyare-so-few-women-adr-field.

30 TURNER, supra note 22.


31 GREENWOOD, supra note 28.
32 Ibid.
33 Joseph Garrison, Perceived Differences in Male and Female Mediators
and Arbitrators , 29 DISPUTE RESOLUTION MAGAZINE (2012),
http://heinonline.org/HOL/LandingPage?
handle=hein.journals/disput18&div=33&id=&page=.
34 ROGERS, supra note 23.
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institutions should take the lead in implementing the change. For example, these
institutions could add a provision similar to that of Article 8 of the World Trade
Organizations Understanding on Rules and Procedures Governing the Settlement of
Disputes which provides that Panel members should be selected with a view to
ensuring the independence of the members, a sufficiently diverse background and a
wide spectrum of experience.35 Currently, no arbitration institution has such an
official requirement for its panel composition. It would also be advisable for these
institutions to set up individual advisory committee to specifically keep track of and
follow up problems relating to gender and ethnic representation of arbitral panels.
The American Arbitration Association, for instance, runs a Diversity Committee and
organizes different activities such as training, mentorship and networking
opportunities for alternative dispute resolution practitioners who by their gender, race,
religion, family background or other reasons have not been able to participate
substantially in this field of work before.36

One suggestion is for institutional rules to incorporate an arbitrator regional diversity


requirement37, meaning that the presiding arbitrator has to come from a different
region than either of the two parties. A possible division of regions could be based on
ethnicity in a broad sense - Anglo-Europe, Africa, Asia and Latin America. This
proposal is attractive because it guarantees that there would be at least nationals
from two regions being involved in all kinds of cases, as represented by the parties
and the arbitrator, leading to a more pluralistic panel. This would directly bring about
a new demand for arbitrators of different nationalities. When this process of
diversification takes place, more practitioners would be motivated to become
arbitrators since they could see a prospect.

Such proposal demonstrates respect for parties autonomy.38 Rather than mandating
the parties to choose an arbitrator from a particular group, which is the inherent
rhetoric for a quota system, this regional diversity requirement only imposes a
restriction as to who they cannot appoint as arbitrator. Besides, it is also suggested
that inserting this new requirement would improve the process of presiding arbitrator
appointment in itself.39 The party appointment system has been challenged for its
possible innate bias, i.e. the arbitrator would have a psychological inclination to favor
the party who appoints him or her. The regional diversity requirement for the
presiding arbitrator would lower the risk of such bias since neither the parties nor the
institution could appoint an arbitrator from similar cultural background saving parties
from national bias on the part of the arbitrator. Possible challenges for this proposal
however would be firstly whether the problem is so severe as to require a strongly
affirmative act to change the status quo, secondly, whether the emphasis on national
diversity would distract us from identifying other relevant qualities such in an
arbitrator that are conducive to a fair result and finally whether national diversity as
opposed to other forms of diversity such as diversity in terms of socio-economic
status, religion, professional background should be the key determinant.40

Another proposal concerning diversification of arbitral panels is for states to

35 Ibid
36 Ibid.
37 HIKAWA, supra note 19
38 Ibid
39 Ibid.
40 Ibid.
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implement policy changes in arbitrator-selection.41 The International Centre for


Settlement of Investment Disputes (ICSID) Convention gives ICSID contracting
states the power to appoint arbitrators. The current regulations give each contracting
state the power to appoint four arbitrators into the panel. Out of the 205 arbitrators
that were appointed by contracting states, only 30 of them were women.42Even in
countries such as Australia where there is a higher female presence in the judiciary,
the Australian state did not appoint any woman to the ICSID arbitral panel. As such,
the ICSID arbitral panel is an avenue where states could address the issue of panels
lacking in diversity through appointing more arbitrators coming from different
backgrounds.

Finally, law firms and arbitration institutions should formulate policies that ensure
gender equality in senior management.43 Successful women legal practitioners
should join together to serve as mentors for young female lawyers.44 Institutions
should also publish statistics relating to their practitioners gender, ethnicity and
geographic information so as to keep track of the condition.

41 GREENWOOD & BAKER, supra note 4.


42 Ibid.
43 Samaa Haradi, Towards Greater Gender and Ethnic Diversity in
International Arbitration, 2 INTERNATIONAL JOURNAL REVIEW 305316, 305-316
(2015), https://www.hoganlovells.com/~/media/hoganlovells/pdf/publication/biar-22samaa-a-f-haridi_pdf.pdf
44 Ibid.
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