The Menace of Ethnic Imbalance in International Arbitration

With the increasing popularity of international arbitration as a forum for resolving trade and investment disputes, the call for having ‘ethnically balanced’ panels of arbitrators has been stronger than ever. However, statistics reveal that these panels have retained their antediluvian Anglo-European hegemony, which hampers their legitimacy by engendering claims pertaining to their failure to be representative of the diverse parties for ‘effective’ dispute resolution. In this article, I will first argue for speedy recognition of the prevalent ethnic imbalance problem in international arbitrator pools; second, I will provide some suggestions to alleviate this imbalance, in an attempt to dislodge the current Eurocentric discourse surrounding international arbitral institutions.

I. Introduction

“An observer from planet Mars may well observe that the international arbitral establishment on Earth is white, male and English-speaking”.1

Capturing the essence of the disquieting state of ethnic imbalance plaguing the regime of international arbitration, Dr KV Nathan rightly pointed out in his article that the observer would be baffled by our ‘international’ arbitral institution’s notably exclusive pool of arbitrators – dominated by members from the European mainland who have cast a palpable Eurocentric ethos over its framework.2 Given the increasing number of diverse members referring their disputes to international arbitration,3 the argument for warranting ethnic diversity in its arbitrator pool has become all the more acute.4 Paradoxically, while increasingly diverse parties have been accessing the international forum (as highlighted in the next section of this article), the community of arbitrators has remained relatively homogenous and inert to the measures aimed towards dislodging its “pale, male, and stale”5 narrative. Although the existence of legal regulations is not a pre-requisite for implementing procedural safeguards targeted towards increasing diversity in arbitrator pools, the absence of binding legal obligations seems to have contributed to maintaining the status quo of ethnically homogenous pools.6 Accordingly, this article will assess whether the apparent lack of ethnic diversity in international arbitration is a cause for concern, especially in the absence of any binding regulation to that effect. In that regard, the empirical literature pertaining to this ethnic imbalance and the ramifications thereof shall be discussed in Part II. This will be followed by some recommendations to ameliorate the state of ethnic diversity in arbitrator pools in Part III. I offer my concluding remarks in Part IV.

II. Putting the Ethnic Imbalance in Perspective: Why Should International Arbitral Institutions Focus on Ethnic Diversity?

A. Advocating for Diverse Pools and Addressing the Counter-Argument: Re-evaluating the Arbitrator ‘Experience’ and ‘Diversity’ Conundrum

The arguments against the diversification of international arbitrator pools are based on two primary grounds; namely, to maintain certainty of the rule of law,7 and to respect the right of parties to appoint an ‘experienced’ arbitrator for supposedly high-stakes disputes.8 With respect to the first factor, it has been argued that the introduction of a diverse pool of arbitrators is likely to disrupt the consistency with which settled international principles are usually interpreted. Even the International Centre for Settlement of Investment Disputes (‘ICSID’) in cases such as SGS v Philippines10 and Saipem v Bangladesh11 reiterated the importance of upholding the legitimate expectations of States “towards certainty of the rule of law”.12 Essentially, this argument is premised on the assumption that the benefits which may accrue from a diverse pool of arbitrators would not be able to compensate for the ill-effects associated with a fragmented interpretative regime. I seek to present a two-fold argument against the tenability of this assertion. First, the inclusion of culturally diverse members in arbitrator pools does not ipso facto point towards a possible derangement of the well-settled interpretative principles governing international arbitration. Such a claim assumes that their cultural and ethnic differences would induce them to adopt conflicting interpretations.13 On the contrary, having obtained the same professional qualifications,14 the members would be more likely to conform to the legally tenable traditional interpretative guidelines.

Second, while emphasising the principle of consistency, tribunals have also underscored the importance of upholding the legitimacy of the international arbitral regime by having diverse arbitrator pools, in cases such as Chevron v Ecuador.15 In that case, criticisms were levelled against the appointed arbitrators for their failure to address the concerns of the local indigenous groups which were heavily impacted by the pollution of Ecuadorian Amazon.16 As a consequence, there were calls for diverse arbitrators to be appointed to increase parties’ confidence in the ‘justice delivery’ system of international arbitration, and also to improve the quality of arbitral awards by allowing the regime to benefit from a ‘plurality’ of perspectives.17

With respect to arbitrator experience and the diversity conundrum, I argue that it would be inapposite to correlate arbitrator ‘experience’ with ‘excellence’, owing to the feedback loop that plagues arbitrator appointments.18 Confidentiality is a key facet of the arbitral regime and, consequently, the difficulty in reviewing awards and/or an arbitrator’s previous performance constructs a system wherein parties value ‘experience’ over everything else.19 Expanding on this assertion, Greenwood envisioned two separate ‘sub-markets’ for arbitrators; one of well-known arbitrators, and the other of similarly qualified arbitrators, albeit relatively ‘inexperienced’.20 It was observed that the second group was not only larger but also more diverse than the first group, and the information asymmetry arising due to arbitral confidentiality disproportionately affected this group vis-à-vis arbitral appointments.21 Owing to the difficulty in getting information about members from the second group, parties often end up repeatedly appointing the same few ‘well-known’ arbitrators from the first group. The experienced arbitrator, thereby, is not necessarily the most qualified to interpret different kinds of factual scenarios. Accordingly, diverse pools become particularly important in such cases to alleviate the polarisation and ‘cascade effect’ caused by homogenous pools of ‘elite arbitrators’ who dominate the international plane.22

Thus, two broad reasons have underpinned the argument for ethnically diverse arbitral pools. First, that diversity leads to better decision-making. Well thought-out decisions entail an assessment of several socio-political factors underlying a dispute, most of which are influenced by nuanced cultural peculiarities.23 Corroboratively, a study revealed that heterogenous mock jury panels made fewer factual errors than their homogenous counterparts,24 and even the American Bar Association noted that “diversity, both cognitive and cultural, often leads to better questions, analyses, solutions, and processes”.25 Thereby, scholars have adopted a similar stance vis-à-vis incorporating a diverse arbitral pool in international arbitration – to eliminate ‘group think’26 and improve the overall quality of arbitral awards.27

Second, diversity bolsters the democratic legitimacy of international arbitration, as it is believed that an arbitral pool representing the parties’ ethnic constituencies inadvertently engenders cultural competence that allow disputes to be assessed from different viewpoints.28 Likewise, diverse decision-makers are more likely to attain a degree of ‘legitimacy’ in the eyes of stakeholders, making it easier for the parties to comply with their awards,29 as highlighted in Chevron v Ecuador. Different studies have also corroborated these observations,30 and in a survey conducted by White & Case, 40% of the respondents believed that diverse pools were bound to improve the quality of awards.31 Furthermore, the presence of diverse arbitrators also precludes cognitive bias of the ‘elite’ from maintaining the homogeneity of arbitral pools,32 all of which culminate in balanced and innovative awards tailored to the parties’ needs.33

B. The Current State of International Arbitrator Pools The empirical literature on the gender and ethnic diversity of international arbitral institutions highlights that, while some progress has been made in achieving gender parity,34 the regime has failed to address the Caucasian hegemony of its arbitrator pool.35 Additionally, external effects targeted towards mitigating the ramifications of ethnically homogenous pools have been rendered ineffective, owing to the “dearth of data” on ethnic diversity in international arbitration.36 The London Court of Arbitration, for instance, appointed only 18 arbitrators (3.6% of the total appointments) from Africa and the Middle East in 2018, while British members continued to retain an overwhelming majority of 59% in arbitral appointments.37

Furthermore, with respect to the International Chamber of Commerce’s (‘ICC’) 2018-21 term, merely 13% of its members are from Africa, with the Latin American members amounting to 15% of the total appointments.38 Likewise, the Singapore International Arbitration Centre’s (‘SIAC’) administered arbitrations in 2019 revealed that less than 0.28% of the arbitrators were from the Middle East and African countries,39 irrespective of the fact that parties from 59 jurisdictions including Africa, Middle East, and Asia Pacific had accessed SIAC’s forum in 2019.40 Despite the gradual increase in parties from Asian, Middle-Eastern, and African regions, the majority of appointments in SIAC have continued to be from the US and UK. Illustratively, while India and China were among the top foreign contributors to SIAC’s caseload in 2020,41 out of the 288 arbitrator appointments, only 17 arbitrators were from India and China.42

The diversity statistics, thereby, are particularly worrisome, especially in light of the increase in arbitral proceedings from parties in the Middle East and African regions. The Caseload Statistics (2020) of the ICSID revealed that Africa and the Middle East accounted for 26% of all cases, and the ICC’s 2019 statistics highlight that around 30% of all parties came from Asia and the Pacific.43 Despite this, only 12.6% of the arbitrators in the ICC were from Asia, with the African members amounting to only 3.6% of the total appointments.44 Evidently, international arbitral institutions have failed to displace the “pale, male, and stale” discourse surrounding their arbitrators,45 and the following section shall assess the reasons for this unwanted status quo.

C. Scrambling for Homogenous Pools: Of Anglo-European Dominance, Confidentiality, and the Catch-22 of Arbitrator Appointments

As evidenced from the statistics highlighted in the previous section, the ‘median arbitrator’ in the international arbitration regime has been described as a ‘fifty-three-year-old male from a developed State, trained in common law’.46 Despite the prevalent ethnic imbalance in its arbitrator pools, the arbitral regime has been observed to still ‘scramble’ to maintain this Anglo-European homogeneity for reasons that shall be delimited in this section.

First, critics have argued that the historical genesis of substantive investment norms could be responsible for its Eurocentric dominance.47 International arbitration has always been an Anglo-American institution, and the regime’s endeavour to extend its Eurocentric standards to other States “inextricably linked with colonialism, [and] oppressive protection of commercial interests”.48 This would lead to the widespread ‘imposition’ of Eurocentric standards of investment and business policy, as opposed to the communal ‘reciprocation’ thereof.49 In addition, since non-Anglo-European countries would often be economically less-developed than their Western counterparts, they were compelled to accept the Eurocentric standards of institutional arbitration to benefit from Anglo-European investment within their borders.50 Second, the current arrangement of arbitrator appointments could arguably be predominantly responsible for maintaining the Anglo-European hegemony in arbitral pools.51 Since no rule obligates the parties to select ethnically diverse arbitrators, the likelihood of minority arbitrators with less experience being appointed remains slim. Accordingly, ‘experience’ (i.e., recurrent appearance before international tribunals) is expected to trump the considerations of diversity in arbitral appointments,52 even when the arbitral regime has always been inherently skewed towards Anglo-European dominance – a Catch-22 defined as the “diversity paradox” by Catherine Rogers.53

Furthermore, the odds of ethnic minorities entering the arbitral institutions at an early stage were already marred by the “pipeline-leak”54 – a metaphor that encompasses factors such as racial stereotyping, differential earnings, lack of guidance, bias etc. – originally used to explain the lack of female representation at the higher echelons of a profession.55 In international arbitration, this ‘leak’ takes the form of the pre-requisite of ‘prior experience’ and ‘risk aversion’,56 disregarding the historically disadvantaged position of ethnic minorities vis-à-vis arbitral appointments.

III. The Move Towards Ethnically Diverse Pools: Some Suggestions

At the outset, it must be noted that since stakeholders are not obliged to take diversity into consideration while appointing arbitrators, any formalistic criteria or other procedural alteration targeted towards establishing diverse tribunals could be readily exteriorised as moral licensing.57 Accordingly, instead of imposing mandatory diversity-specific prerequisites in appointments, the reforms undertaken should focus on educating the parties on the merits of diverse pools. However, I believe that the current framework of appointments is markedly responsible for maintaining the status quo of imbalanced pools.

As aforementioned, the quality of arbitrators is often judged by their ‘visibility’ in international proceedings,58 and since the process of appointments is primarily managed by the parties, they end up reappointing from the limited clique of ‘elite’ arbitrators.59 Consequently, there have been calls for substituting the current ad hoc system with one wherein the arbitral institutions appoint the arbitrators.60 Recognising that the concerns about ethnic imbalance have remained unaddressed in ad hoc arbitrations,61 scholars have argued that investment treaties could require the appointments to be effected by the institutions themselves, citing the Dutch Model BIT.62

While the selection of arbitrators by institutions or neutral parties may seem contrary to the principle of party autonomy, it has been argued that parties have already given up much of their autonomy to neutral service providers such as the American Arbitration Association, whilst deliberating on issues of appointment.63 Thus, to remedy the ill-effects of arbitral homogeneity perpetrated by the unflinching regard for party autonomy, the implementation of ‘regional’ diversity requirements such as procedural appointment filters have also been suggested, similar to Article 39 of the ICSID Convention.64

Although the benefits of such a policy are apparent insofar as the elimination of exclusively Anglo-European pools is concerned, equally compelling criticisms have been levied against the implementation of such ‘ethnicity quotas’.65 Some decry that the policy prioritises diversity over other qualities of an arbitrator that contribute to sound decision-making, while others critique it for assuming regional diversity as a proxy for other equally important considerations such as educational and formative experience, cultural/political alignment, etc. I believe that these criticisms are well-founded, and since people are multifaceted, the issue of an ethnic imbalance in international arbitration would not be resolved by simply placing a superficial region-based filter in appointments. Thus, this policy approach would only work if the delineation of regions expands its bird’s-eye view of diversity and considers the virtues of an increased diversity of ‘all types’ on the adjudicatory framework – taking into account the socio-economic, cultural, and religious differences that may influence arbitrators’ practice in addition to their respective nationalities.66

Furthermore, apart from advocating for a more structured procedure for appointing arbitrators,67 Greenwood has also suggested a system of ‘blind’ appointments wherein information pertaining to gender and race/nationality is removed from résumés before presenting the list of potential arbitrators to the parties.68 The rationale behind this suggestion is that ‘private judges’ in arbitral forums should only be chosen on the basis of factors aiding the forum’s justice delivery mechanism, devoid of superfluous ancillary factors such as race and gender.69 Although the impact of this reform on the current state of arbitrator pools has not been empirically substantiated, I believe that it may still contribute in dislodging the status quo in arbitral appointments.

Finally, owing to the information asymmetry that persists in international arbitration,70 it becomes quintessential for institutions to augment the ‘visibility’ of arbitrators outside the narrow clique of their Anglo-American counterparts who continue to get reappointed. Fortunately, some tools such as Catherine Rogers’ Arbitrator Intelligence Questionnaire and Kluwer Arbitration’s IAI Arbitrator Tool aim to bridge this asymmetric visibility gap by aggregating biographical information about various arbitrators.71 Along with this, the ‘Alliance for Equality in Dispute Resolution’72 and ‘REAL’73 are initiatives spearheaded by global arbitration lawyers that seek to addressing the ethnic imbalance and racial disparity in international arbitration.

IV. Conclusion

Given the ability of the arbitral institutions to cast an indelible imprint on the entire investment framework, it seems to present an opportune moment to address the cloaked menace of ethnic imbalance within their panels. Apart from reinforcing the legitimacy of the arbitral regime, diverse pools have also been reported to improve decision-making quality, leading to balanced awards which are more likely to be accepted by the parties, as highlighted in Part II. Although it is laudatory that institutions are now readily releasing statistics about their panels and the diversity thereof, serious reforms need to be undertaken to dislodge the Western hegemony prevalent in international arbitral panels. Only then would arbitral institutions be genuinely ‘international’.

---

[1] Caroline dos Santos, ‘Diversity in International Arbitration: A No-Woman’s Land?’ in Leo Staub (ed.), Beiträge zu aktuellen Themen an der Schnittstelle zwischen Recht und Betriebswirtschaft (Schultess Zurich 2017) 207-231, citing KV Nathan, ‘Well, Why Did You Not Get the Right Arbitrator?’ (2000) 15(7) Mealey’s Int’l Arb Rep 24.

[2] KV Nathan, (n 1).

[3] ‘International Centre for Settlement of Investment Disputes (ICSID) 2014 Annual Report’ (World Bank Group, 9 January 2015) <http://documents.worldbank.org/curated/en/973971468165569092/International-Centre-for-Settlement-of-Investment-Disputes-ICSID-2014-annual-report> accessed 12 September 2021.

[4] Gemma Anderson, Richard Jerman and Sampaguita Tarrant, ‘Diversity in International Arbitration’ (Thomson Reuters, 1 March 2020) <https://uk.practicallaw.thomsonreuters.com/w-019-5028?transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed 12 June 2021.

[5] Michael Goldhaber, ‘Madame la Présidente: A Woman who sits as President of a major Arbitral Tribunal is a Rare Creature. Why?’ (2004) 1 Transnational Dispute Management 1, 1-2.

[6] Katia Gómez, ‘Diversity and the Principle of Independence and Impartiality in the Future Multilateral Investment Court’ (2018) 17 Law and Practice of International Courts & Tribunals 78, 82.

[7] Kathleen Claussen, ‘Keeping up Appearances: The Diversity Dilemma’ (2015) 4 Transnational Dispute Management 1, 5.

[8] Douglas Pilawa, ‘Sifting Through the Arbitrators for the Woman, the Minority, the Newcomer’ (2019) 51 Case Western Reserve Journal of International Law 395, 417.

[9] Claussen (n 7).

[10] SGS v Philippines, ICSID Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction, January 29, 2004 [97].

[11] Saipem S.p.A. v People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Award, June 30, 2009.

[12] ibid, [90].

[13] Claussen (n 7).

[14] ‘Barriers to Entry—The Lack of Diversity in International Arbitration’ (LexisNexis UK, 15 July 2015) <https://www.lexisnexis.co.uk/blog/dispute-resolution/barriers-to-entry-the-lack-of-diversity-in-international-arbitration> accessed 5 July 2021.

[15] Chevron Corporation (USA) & Texaco Petroleum Company v Ecuador, UNCITRAL PCA Case No. 34877, Interim Award [3.21], [3.22].

[16] Naimeh Masumy, ‘Is Increasing Gender and Ethnic Diversity in Arbitral Tribunals a Valid Concern and Should Arbitral Institutions Play a Greater Role Ensuring Diversity?’ (Fordham International Law Journal Blog, 23 November 2020) <https://www.fordhamilj.org/iljonline/2020/11/23/is-increasing-gender-and-ethnic-diversity-in-arbitral-tribunals-a-valid-concern-and-should-arbitral-institutions-play-a-greater-role-ensuring-diversity> accessed 5 July 2021.

[17] Joseph Mamounas, ‘Does “Male, Pale, and Stale” Threaten the Legitimacy of International Arbitration? Perhaps, but There’s No Clear Path to Change’ (Kluwer Arbitration Blog, 10 April 2014) <http://arbitrationblog.kluwerarbitration.com/2014/04/10/icca-2014-does-male-pale-and-stale-threaten-the-legitimacy-of-international-arbitration-perhaps-but-theres-no-clear-path-to-change/> accessed 5 July 2021.

[18] Courtney Dolinar-Hikawa, ‘Beyond the Pale: A Proposal to Promote Ethnic Diversity Among International Arbitrators’ (2015) 12(4) Transnational Dispute Management 1, 7.

[19] Lucy Greenwood, ‘Tipping the Balance – Diversity and Inclusion in International Arbitration’ (2017) 33 Arbitration International 99, 105.

[20] ibid.

[21] ibid.

[22] Jan Paulsson, The Idea of Arbitration (OUP 2013) 171-73.

[23] Pilawa (n 8) 428.

[24] Samuel Sommers, ‘On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations’ (2006) 90 Journal of Personality and Social Psychology 4, 597.

[25] ‘Diversity in Law: Who Cares? Why Justice John Roberts’s implications were wrong’ (ABA, 30 April 2016) <https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2016/spring2016-0416-diversity-in-law-who-cares/> accessed 12 September 2021.

[26] dos Santos (n 1) 12-13.

[27] Patricia Živković, ‘Diversity in International Arbitration: Where Do We Stand? – An Overview of a Berwin Leighton Paisner Survey’ (Kluwer Arbitration Blog, 9 February 2017) <http://arbitrationblog.kluwerarbitration.com/2017/02/09/diversity-in-international-arbitration-where-do-we-stand-an-overview-of-a-berwin-leighton-paisner-survey/> accessed 12 September 2021.

[28] Ana Prundaru, ‘The Past, Present, and Future of Arbitral Diversity in Investment Arbitration’ (KSLR Commercial & Financial Law Blog, 11 May 2020) <https://blogs.kcl.ac.uk/kslrcommerciallawblog/2020/05/11/the-past-present-and-future-of-arbitral-diversity-in-investment-arbitration-ana-prundaru/> accessed 17 June 2021.

[29] Katia Gómez, see n 6, 81.

[30] Samaa Haridi, ‘Towards Greater Gender and Ethnic Diversity in International Arbitration’ (2015) 2 International Arbitration Review of the Bahrain Chamber for Dispute Resolution 305, 308-11.

[31] Queen Mary University of London, ‘2018 International Arbitration Survey: The Evolution of International Arbitration’ (White & Case, 9 May 2018) <www.whitecase.com/sites/whitecase/files/files/download/publications/qmul-international-arbitration-survey-2018-19.pdf> accessed 17 June 2021.

[32] Ksenia Polonskaya, ‘Diversity in the Investor-State Arbitration: Intersectionality Must Be a Part of the Conversation’ (2018) 19 Melbourne Journal of International Law 259, 281.

[33] Kabir Duggal, ‘Understanding Racial Representation in International Investment Arbitration’ (2017) 72(2) Dispute Resolution Journal 27.

[34] Payel Chatterjee and Vyapak Desai, ‘Is Increasing Gender and Ethnic Diversity in Arbitral Tribunals a Valid Concern?’ (Kluwer Arbitration Blog, 1 March 2020) http://arbitrationblog.kluwerarbitration.com/2020/03/01/is-increasing-gender-and-ethnic-diversity-in-arbitral-tribunals-a-valid-concern/ accessed 16 June 2021 (“The recently released statistics of Stockholm Chamber of Commerce reflect that 27% of appointed arbitrators were women, up from 18% in 2017…Singapore International Arbitration Centre has reported for 2017 a 7% increase from 2016 in women arbitral appointments”).

[35] Andrea Kay Bjorklund, ‘The Diversity Deficit in Investment Arbitration’ (EJIL: Talk!, 4 April 2019) <https://www.ejiltalk.org/the-diversity-deficit-in-investment-arbitration/> accessed 16 June 2021.

[36] Lucy Greenwood, see n 19.

[37] ‘LCIA releases 2018 Annual Casework Report’ (LCIA, 1 April 2019) <https://www.lcia.org/News/2018-annual-casework-report.aspx> accessed 16 June 2021.

[38] Gemma Anderson, see n 4.

[39] ‘Singapore International Arbitration Centre Annual Report 2019’ (SIAC, 30 June 2020) <https://www.siac.org.sg/images/stories/articles/annual_report/SIAC%20AR_FA-Final-Online%20(30%20June%202020).pdf> accessed 16 June 2021.

[40] Wei Tang, ‘The SIAC Annual Report 2019: Findings and Takeaways in the light of COVID-19’ (Singapore International Arbitration Blog, 15 April 2020) <https://singaporeinternationalarbitration.com/2020/04/15/the-siac-annual-report-2019-findings-and-takeaways-in-the-light-of-covid-19/> accessed 6 July 2021.

[41] ibid.

[42] ‘SIAC Annual Report 2020’ (SIAC, 31 March 2021) <https://www.siac.org.sg/newsite/index.php/70-articles-publication/190-annual-report> accessed 11 September 2021.

[43] International Chamber of Commerce, ICC Dispute Resolution 2019 Statistics (2020) 9-10.

[44] ibid 13.

[45] Raghvendra Pratap Singh and Sonya Mohan, ‘The Glass Ceiling in International Commercial Arbitration: Analysis of Diversity and Accessibility’ (Arbitration & Corporate Law Review, 15 September 2020) <https://www.arbitrationcorporatelawreview.com/post/the-glass-ceiling-in-international-commercial-arbitration-analysis-of-diversity-and-accessibility> accessed 16 June 2021.

[46] Lee Epstein and Tonja Jacobi, ‘Super Medians’ (2008) 61 Stanford Law Review 37, 47-49; Andrew Martin, Kevin Quinn & Lee Epstein, ‘The Median Justice on the United States Supreme Court’ (2005) 83 North Carolina Law Review 1275, 1277.

[47] Andrea Kay Bjorklund et al., ‘The Diversity Deficit in International Investment Arbitration’ [2020] Academic Forum on ISDS Concept Paper 1, 10-11.

[48] Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (CUP 2013) 21.

[49] Joost Pauwelyn, “Rational Design or Accidental Evolution?’ in Zachary Douglas et al. (eds), The Foundations of International Investment Law: Bringing Theory into Practice (OUP 2014) 21.

[50] Won Kidane, The Culture of International Arbitration (OUP 2017) 145.

[51] Sara Raza, ‘Appointment of Arbitrators: By Parties or Through the Arbitral Institute?’ (Courting the Law, 28 January 2020) <http://courtingthelaw.com/2020/01/28/commentary/appointment-of-arbitrators-by-parties-or-through-the-arbitral-institute/> accessed 17 June 2021.

[52] Ksenia Polonskaya, see n 32, 263.

[53] Catherine Rogers, ‘The Key to Unlocking the Arbitrator Diversity Paradox?: Arbitrator Intelligence’ (Kluwer Arbitration Blog, 27 December 2017) <http://arbitrationblog.kluwerarbitration.com/2017/12/27/on-arbitrators> accessed 17 June 2021.

[54] Lucy Greenwood, ‘Unblocking the Pipeline: Achieving Greater Gender Diversity on International Arbitration Tribunals’ (2016) 42 American Bar Association International Law News 1, 3-4.

[55] F. Peter Phillips, ‘It Remains a White Male Game’ (International Institute for Conflict Prevention & Resolution, 27 November 2006) <https://www.cpradr.org/news-publications/articles/2006-11-27-it-remains-a-white-male-game-nlj> accessed 24 September 2021

[56] Marvin Johnson and Homer La Rue, ‘The Gated Community: Risk Aversion, Race, and the Lack of Diversity in Mediation in the Top Ranks’ [2009] Dispute Resolution Magazine 15, 18.

[57] Bjorklund et al. ( n 47) 17.

[58] Dos Santos (n 1) 5.

[59] Daphna Kapeliuk, ‘The Repeat Appointment Factor: Exploring Decision Patterns of Elite Investment Arbitrators’ (2010) Cornell Law Review 96.

[60] Chatterjee and Desai (n 34).

[61] Caley E. Turner, ‘”Old, White, and Male”: Increasing Gender Diversity in Arbitration Panels’ (International Institute for Conflict Prevention & Resolution, 3 March 2015) <https://www.cpradr.org/news-publications/articles/2015-03-03–old-white-and-male-increasing-gender-diversity-in-arbitration-panels> accessed 15 June 2021.

[62] Bjorklund (n 47) 22.

[63] Michael Z. Green, ‘Arbitrarily Selecting Black Arbitrators’ (2020) 88 Fordham Law Review 2255, 2281-82.

[64] Dolinar-Hikawa (n 18).

[65] ibid.

[66] ibid.

[67] Matteo Winkler and Mikaël Schinazi, ‘No Longer “Pale, Male, and Stale”? Approaching Diversity and Inclusiveness in International Arbitration’ in Nigel Blackaby et al. (eds.), Liber Amicorum Guillermo Aguilar Álvarez (2021) 15-16.

[68] Lucy Greenwood and Mark Baker, ‘Is the Balance Getting Better? An Update on the Issue of Gender Diversity in International Arbitration’ (2015) 31 Arbitration International 413, 415.

[69]‘The Anti-Racist Solution to Non-Diverse Arbitration Panels’ (She Negotiates, 15 July 2020) <https://www.shenegotiates.com/blog/2020/7/15/the-anti-racist-solution-to-non-diverse-arbitration-panels> accessed 7 July 2021.

[70] George Akerlof, ‘The Market for “Lemons”: Quality Uncertainty and the Market Mechanism’ (1970) 84 Quarterly Journal of Economics 488.

[71] Nadia Bouajila, ‘New Decade, New Demographic? Increasing Diversity in International Arbitration’ (The Arbitration Brief, 12 April 2020) <https://thearbitrationbrief.com/2020/04/12/new-decade-new-demographic-increasing-diversity-in-international-arbitration/> accessed 17 June 2021.

[72] Cristina Ioana, ‘Report on the Diversity Roundtable at Vienna Arbitration Days 2018’ (2018) 8(1) International Law Review 42, 47.

[73] Vanessa Tsang, ‘The Timely Launch of REAL: A Global Campaign and Advocacy for Racial Equality and Diversity in International Law and International Arbitration Practice’ (ABA – Just Resolutions Newsletter, February 2021) <https://www.americanbar.org/content/dam/aba/publications/just-resolutions/february-2021/tsang-the-timely-launch-of-real.pdf> accessed 17 June 2021.

Prateek Joinwal

BA LLB (Hons) (The West Bengal National University of Juridical Sciences) ’23