Despite the fact that societies' attitudes toward women have shifted dramatically in recent decades, it is safe to say that there is still much room for improvement in terms of women's participation in high-ranking legal positions in both developing and developed countries. One example is Investor-State Dispute Settlement arbitration (ISDS), where disputing parties appoint far fewer female arbitrators than male arbitrators. My current research objective was to determine the cause of this occurrence by reviewing the list of arbitrators on the International Centre for Settlement of Investment Disputes (ICSID) as well as some additional articles on women’s representation in arbitral tribunals.

Some words on ISDS arbitration

The arbitration institution is not new:  Thucydides reminds us that concerning the island of Salamis, five Spartan arbitrators awarded the possession of it to Athens, in obedience to ancient traditions. Likewise, Grotius notes that Philip of Macedon ended his disputes with Grecians through arbitration. But resolving disputes between States and foreign investors is a more recent phenomenon; one that is gaining more and more traction by the day. As most commentators underscore the explosion of investor claims under the investment treaties took over as of the end of the cold war. Ever since ISDS arbitration has become the paramount method of resolving international investment disputes between states and foreign investors. 

One of ISDS peculiar features is that disputing parties are largely in charge of selecting who decides their dispute. This is why it is important to analyse whether in the appointment process there is a systematic bias against women arbitrators and, if so, which reform venues are more likely to overcome this challenge.

Top ten

            When researching if there is any such phenomenon as a gender-bias in investment arbitration, I found it best to look at the top ten most-appointed arbitrators on the ICSID list of arbitrators.

I first listed as a reference the ten most-appointed male arbitrators, their nationality and spoken languages:

  1. Prof. Stanimir A. Alexandrov (54 cases). Nationality: Bulgarian. Spoken languages: English, French, Russian, Spanish.
  2. Prof. Bernand Hanotiau (42 cases). Nationality: Belgian. Spoken languages: English and French.
  3. Mr. L. Yves Fortier (42 cases). Nationality: Canadian. Spoken languages: English and French.
  4. Prof. Albert Jan Van den Berg (40 cases). Nationality: Dutch. Spoken languages: Dutch, English, French, Spanish.
  5. Prof. Bernardo M. Cremades (38 cases). Nationality: Spanish. Spoken languages: English, French, German, Spanish.
  6. Prof. Juan Fernández-Armesto (38 cases). Nationality: Spanish. Spoken languages: English, French, German, Spanish, Portuguese. 
  7. Prof. Zachary Douglas (36 cases). Nationality: Australian. Spoken languages: English, French, Russian.
  8. Dr. Horacio A. Grigera Naón (34 cases). Nationality: Argentine. Spoken languages: English, French, Spanish.
  9. Prof. Jan Paulsson (32 cases). Nationality: Bahraini, French, Swedish. Spoken languages: English, French, Swedish.
  10. Prof. Piero Bernardini (31 cases). Nationality: Italian. Spoken languages: English, French, Italian.

The ten most-appointed women arbitrators are the following: 

  1. Prof. Brigitte Stern (98 cases). Nationality: French. Spoken languages: English, French, Spanish.
  2. Gabrielle Kaufmann-Kohler (45 cases). Nationality: Swiss. Spoken lamguages: English, French, German, Spanish. 
  3. Ms. Jean Engelmayer Kalicki (22 cases). Nationality: American. Spoken languages: English.
  4. Ms. Loretta Malintoppi (17 cases). Nationality: Italian. Spoken languages: English, French, Italian, Spanish. 
  5. Dr. Mónica Pinto (10 cases). Nationality: Argentine. Spoken languages: English, French, Spanish.
  6. Wendy J. Miles (10 cases). Nationality: New Zealand. Spoken languages: English.
  7. Ms.Teresa Cheng (10 cases). Nationality: Chinese. Spoken languages: English.
  8. Ms. Lucy Reed (9 cases). Nationality: US. Spoken languages: English.
  9. Dr. Yas Banifetami (8 cases). Nationality: French, Iranian. Spoken languages: English, French.
  10. Ms. Bertha Cooper-Rousseau (8 cases). Nationality: Bahamian. Spoken languages: English, French.

It is worth noting that only two women have an impressive number of cases (45 and 98, respectively), and that the highest-ranking arbitrator based on cases assigned is a woman. However, the numbers diverge  below the second place: the fifth most sought-after male arbitrator has 38 cases, whereas the fifth most sought-after female arbitrator has only 10, nearly a fourth of what her male counterpart has. Also, the bottom five of the top ten highest-ranking female arbitrators have a combined number of 45 cases, whereas the fifth to tenth placed highest-ranking male arbitrators have 171 altogether.

All in all, the top ten most sought-after male arbitrators have 387 cases, the top ten female arbitrators have 237 cases combined, of which 98 (more than third of the case number) were assigned to a single arbitrator (Prof. Brigitte Stern).This goes to show how poorly represented women are on the ICSID list of arbitrators, and how the system favours male arbitrators. The question arises: why is this so and what can we do about it?

Quotas and why we need them 

            Quotas are frequently criticised as a barrier to meritocracy. Quotas, according to critics, are only good for under-represented groups because they take away space from those who have worked harder or achieved more than them. This assumption is based on the idealistic belief that everyone is born equal.

This, however, is far from the truth: we are born with different qualities, strengths, and weaknesses, as well as different backgrounds, families, and societies.

            If women are told that choosing jobs in medicine or law will not leave them enough time to have children, or that these professions are dominated by men and they will most  likely fail, or not even try  pursuing them. Of course, this phenomenon should be addressed at lower levels as well, but governments and employers must also take action—aside from education, there is one other significant way to effect change: reserving a certain number of 'seats' for under-represented groups (in this case, women). This is critical in order to establish a practise and precedent that a woman can succeed in fields that are traditionally dominated by men. Women will have the courage and opportunity to choose competitive professions and be successful if we start raising them as equals to men.

A new approach

            The under-representation of female arbitrators prompted the creation of the Arbitral Pledge in 2015 by members of the arbitral community who wanted to change the status quo. The pledge itself aims to increase the number of female arbitrators in international tribunals. Although quotas were initially considered, the Pledge's drafters decided to use more flexible standards, or, as they put it: ‘[t]he standard of ‘equal opportunity’ contemplates that arbitral appointments and other opportunities in the field of arbitration should be based on equal qualifications. The complementary standard of ‘fair representation’ is a flexible standard requiring a fact-specific determination’.

Those who sign the pledge commit to collecting and disclosing gender data for appointments, as well as ensuring that female applicants are fairly represented on lists of potential arbitrators. Senior and experienced arbitrators have committed to assisting, mentoring, and encouraging women to pursue arbitration positions and advance their careers in other ways. Although the Pledge cannot be viewed as a panacea, it can be fairly argued that it is a good initiative and that flexible standards may have an impact on gender equality; for example, as of the Pledge's launch, female representation in The London Court of International Arbitration had increased to 24 percent; this is why, due to their objective nature, setting bounding rules (such as quotas) is a much more effective solution to the problem.

Overall, it is important to recognise that in order to change the status quo, our society must not only educate the next generation, but also implement regulations that ensure gender equality and diversity of arbitral tribunals, thereby improving decision-making quality. In the long run, it is critical to raise children with a broad mindset, but because there are still fundamental differences in men's and women's upbringing, using quotas in arbitrator selection is the most objectively efficient way to ensure women's participation in international investment arbitration.