Parties, including States and companies, have increased their awareness of the importance of diversity, and in some cases emphasize to counsel the relevance of selecting arbitrators from a broad pool of candidates including gender, geographic and cultural diversity. As in the case of rapper and media proprietor Jay Z — who initially complained about the virtual lack of African American candidates in the list of arbitrators provided by the American Arbitration Association (AAA), following which the AAA reasonably offered five African American candidates from which the parties could choose a three-member panel—heads of companies are increasingly more aware about the importance of having diverse and competent individuals as adjudicators. Query as to whether this important push for greater diversity is becoming—based on statistics and numbers—an increasing perceivable trend in international commercial and investment arbitration.

Gender, cultural, ethnic, and geographical diversity, added to diversity from various legal systems, may be in the psyche of younger public officials in charge of vetting candidates for appointment to tribunals in investment arbitrations or international commercial arbitrations involving State or State-owned companies. But the question is very practical: Instead of promoting diversity due to moral correctness, what may a party gain from a more diverse pool of arbitrators? The answer may be linked to ensuring fairness and real international due process as, in the words of Ula Cartwright-Finch, “increased diversity can help reduce cognitive biases to which homogenous groups are susceptible and improve the intelligent performance of three-member teams.”

While international arbitration centers appear to be an engine for change by proposing diverse candidates in their panels of arbitrators (for example, in 2020 the percentage of women sitting in ICC arbitral tribunals reached 23.4%, 37% of all arbitrators appointed by the Court were women, ICC arbitrators come from 92 different nationalities, and the seat of arbitrations has been located in 65 countries), a significant challenge remains in the appointment of arbitrators by parties. Clients and their counsel may have a larger pool of male and white arbitrators with a proven track record—and therefore more predictable—to choose from, than the pool of gender and ethnically diverse candidates. The road must start somewhere. Blunt commitments—such as the ICC World Council decision on gender diversity of full gender parity for the term 2018-2021 appointing 88 men and 88 women— could be replicated by other arbitration centers, and considered for ingenious initiatives on ethnic and geographic diversity. What initiatives are those?

In the conversation on diversity and international adjudication the big elephant—or at the very least a monstrous animal—in the room is whether permanent international courts may foster more diversity than arbitration tribunals whose periods expire with the life of each case. While the International Court of Justice, still in 2022, has only 4 female judges out of 15 seats (i.e., less than 26%), the Statute of the International Criminal Court provides that in selecting judges, the parties shall consider the representation of the principal legal systems of the world, equitable geographical representation, and fair representation of female and male adjudicators. What has been the performance of the ICC in terms of diversity? What system may foster greater diversity, the flexibility of international arbitration or an explicitly regulated-for-diversity permanent international court system?

This panel will explore, among other issues, (i) what is diversity and inclusion? Beyond gender diversity, which is essential, what other types of diversity—including ethnic, racial, and cultural diversity, as well as sexual orientation diversity— should dispute resolution in investment and international commercial arbitration be promoting? (ii) Whether international arbitration as we know it in investor-State arbitration, for example under ICSID, or in international commercial arbitration under the ICC, ICDR or similar rules, fosters and effectively promotes diversity and inclusion?, and (iii) are any of the current or proposed systems of adjudication in international law closer to achieving the objective of effectively encouraging diversity and inclusion, including the International Investment Court proposed in the CETA, the International Criminal Court , the WTO Appellate Body, international commercial arbitrations under the ICC, ICDR or similar rules, or any proposal on diversity and inclusion in UNCITRAL Working Group III?