Glass Ceilings and Arbitral Dealings: Explaining the Gender Gap in International Investment Arbitration

Evidence-Guided Reform: Surveying the Empirical Research on Arbitrator Bias and Diversity in Investor–State Arbitration

“…Only 7 percent of ICSID arbitrators were women in this period and this participation of women also suffers from a paradox and double asymmetry: two 'formidable' women, Kaufmann-Kohler and Stern not only held 75 percent of all appointments to women arbitrators up to 2014, but were also the two most frequently appointed arbitrators regardless of gender (Puig 2014). Over time, there has been a slight improvement in the number of appointments going to women: earlier studies reported that between 3 percent and 7 percent of arbitrators appointed at ICSID are women (Franck 2007;Greenwood and Baker 2015;Van Harten 2012b), while a recent study by St John, Behn, Langford, and Lie (2018), which includes non-ICSID cases and a sample period up to 2017, found that 11 percent of arbitrators are women. Yet, the pattern largely remains and Kaufmann-Kohler and Stern account for 57 percent of all appointments given to women (see Table 10.4).…”

“…Diversity issues continue to be repeatedly raised by states delegates to the UNCITRAL process as a serious concern, but mainly in regard to gender and nationality-based diversity. Scholars have repeatedly pointed to other homogenous attributes of ISDS arbitrators that would benefit from diversification, such as, inter alia, age, language, legal training, education, background, and experience (Bjorklund et al 2020;Franck et al 2017;Langford, Behn and Lie 2017)and have continually criticized the dominance of a small group of arbitrators receiving most of the available appointments in any given year, and thus preventing a new generation of potentially more diverse arbitrators entering the system (St John, Behn, Langford and Lie 2018;Langford, Behn and Lie 2017;Puig 2014).…”

“…The total of 263 appointments made to ICSID tribunals and ad hoc annulment committees in 2018 "were the most diverse to date in terms of nationality, gender, and first-time appointees" (ICSID 2019). Others are less enthusiastic, noting that the shift is primarily evident in certain institutional appointmentswhich, with the exception of ICSID annulment committee appointments (which commendably are by far the most diverse tribunals being constituted currently), are only ever a tiny fraction of overall appointments in investor-state arbitration (primarily only required when parties or wing arbitrators cannot agree on a presiding arbitrator) (St John, Behn, Langford and Lie 2018). Greenwood attributes the persisting lack of diversity among ISDS arbitrators "to the issue of information asymmetry and the problem of the 'solicited feedback loop' and believes that increased transparency and greater access to information is the only way to secure significant change" (Greenwood and Baker 2012).…”

“…Greenwood attributes the persisting lack of diversity among ISDS arbitrators "to the issue of information asymmetry and the problem of the 'solicited feedback loop' and believes that increased transparency and greater access to information is the only way to secure significant change" (Greenwood and Baker 2012). St John, Behn, Langford, and Lie (2018) argue that the sluggishness, especially for party-based appointments, is better attributed to the dominance of a 'prior experience norm' whereby no diversity attribute would ever be able trump previous experience when parties are selecting 'their' arbitrator; and since the arbitrators with the most experience entered the investor-state arbitration system when it was a given that arbitrators would be men from countries in the West, it is somewhat unsurprising that the majority of appointments continue to go to Western men with plenty of previous appointments as arbitrator.…”

“…They have all arbitrated more than one case and account for 86 percent of all appointments to women. The remaining thirty-two women arbitrators have only received one appointment in an investor-state arbitration case (St John, Behn, Langford and Lie 2018).…”