The Diversity Deficit in International Investment Arbitration

Abstract

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.