The United Nations Commission on International Trade Law (UNCITRAL) Working Group III on ISDS (Investor-State Dispute Settlement) Reform considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are men from the Global North with significant prior experience in ISDS cases. Rather than being seen as fair, just, and devoid of bias, decisions are sometimes suspected to be the products of adjudicators who share a particular world view. This article focuses on four key issues: (1) how a lack diversity affects the real and perceived legitimacy of the ISDS system; (2) empirical evidence on the current extent of the diversity problem in ISDS; (3) the causes of the perpetuation of the diversity deficit in ISDS; and (4) what can be done to improve diversity in ISDS.

When judges are described as activists they are usually accused of either intruding into policy making best left to the legislative branches of government or intruding into values or social mores – matters best left to democratic processes, i.e. to “the people”. For an arbitrator to be an activist she would need to go beyond her duly conferred quasi-judicial powers, and arbitrators – and in particular investment arbitrators – have been accused of doing just that. Though there is a fine line between what constitutes activity and what constitutes activism, I suggest that arbitrators are not generally “activists.” First, they wield authority conferred on them by the arbitral agreement and by other sources of arbitral power. Second, particularly when the applicable legal standard is vague, this conferral includes quite broad authority to define and develop the applicable law. Third, the lack of agreement among states about what certain obligations mean suggests that arbitral tribunals are not going beyond their authority; rather, the fault, if fault there is, lies in the language of the agreements themselves.

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This chapter begins by exploring the historical development of the necessity and force majeure doctrines. It focuses in some detail on the development of the International Law Commission's project on State Responsibility, which culminated in the ILC's adoption of draft articles, including articles on the state of necessity and force majeure. Section 2 explores the elements of a necessity defence. Section 3 examines the possibility of States' raising treaty-based defences on the grounds of ‘essential security interests’ or maintaining ‘public order’. Section 4 details the elements of a force majeure defence, a largely historical enquiry as force majeure has not played a leading role in recent investor-State jurisprudence. Section 5 addresses whether exculpatory provisions should be viewed as self-judging. Section 6 explores the effects of a successful invocation of a necessity or force majeure defence, including whether compensation is due in the event of a successful plea. A concluding section assesses the state of the jurisprudence and outlines some of the open questions future tribunals will confront in necessity and force majeure cases.