The Diversity Challenge: Exploring the 'Invisible College' of International Arbitration

78 Pages Posted: 31 May 2015 Last revised: 24 Jun 2015

See all articles by Susan D. Franck

Susan D. Franck

American University - Washington College of Law

James Freda

United Nations

Kellen Lavin

Washington and Lee University

Tobias A. Lehmann

University of St. Gallen - LS: School of Law, Students

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Date Written: May 29, 2015

Abstract

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the membership of the international arbitration community. Although defining the international arbitration community is challenging, rather than leave the “invisible college” unexamined, this Article offers one systematic glimpse into the global elites of international arbitration using data from 413 subjects who served as counsel and 262 who acted as arbitrators (including 67 investment treaty arbitrators). The median international arbitrator was a fifty-three year old man who was a national of a developed state reporting ten arbitral appointments; and the median counsel was a forty-six year old man who was a national of a developed state and had served as counsel in fifteen arbitrations.

In addition: (1) 17.6% of the arbitrators were women, and there was a significant age difference such that male arbitrators were approximately ten years older than women; (2) for those acting as international arbitrators, we could not identify a significant difference in the number of appointments women and men obtained; (3) depending upon how development status was defined, developing world arbitrators accounted for fifteen to twenty percent of arbitrators; and (4) for all measures used to analyze development status, arbitrators from the developing world received a statistically lower number of appointments than their developed world counterparts.

Recognizing the data revealed diversity in international arbitration is a complex phenomenon, the data nevertheless supported, rather than disproved, claims that international arbitration is a relatively homogenous group. Acknowledging that international arbitration may improve over time and diversity issues challenge other forms of dispute resolution, diversity levels in international arbitration were somewhat lower than in several national court systems but were generally reflective of diversity levels in other international courts and tribunals. The international arbitration community seems aware of the distortions. For all subjects, 57.5% either somewhat or strongly agreed that international arbitration experiences challenges related to gender, nationality, or age. Younger subjects and women were statistically more likely to identify such challenges as compared to older or male subjects; but subjects from states outside the Organisation for Economic Co-operation and Development (OECD) were less likely to identify challenges when compared to their OECD counterparts. Replication is necessary as the results may reflect a limited historical baseline of international arbitration global elites.

Given the self-identified concerns and the symbolic legitimacy of broader representation, the international arbitration community may wish to explore factors inhibiting full utilization of untapped talent and facilitate aims of procedural, and potentially distributive, justice. Structural and incremental strategies could then promote a sustainable international arbitration system for the future.

Keywords: International Disputes, International Commercial Arbitration, Investment Treaty Arbitration, Investor-State Dispute Settlement, ISDS, International Courts and Tribunals, Arbitrators, Counsel, Gender, Development Status, Nationality, Diversity, Common or Civil Law, Legal Training, Age, Legitimacy

JEL Classification: C12, C42, F00, F02, F10, F30, F23, F36, J42, K00, K10, K11, K12, K20, K40, K41, K33, K49, O00

Suggested Citation

Franck, Susan D. and Freda, James and Lavin, Kellen and Lehmann, Tobias A. and van Aaken, Anne, The Diversity Challenge: Exploring the 'Invisible College' of International Arbitration (May 29, 2015). Columbia Journal of Transnational Law, Vol. 53, Page 429, 2015. Available at SSRN: https://ssrn.com/abstract=2611214

Susan D. Franck (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

James Freda

United Nations ( email )

New York, NY 10017
United States

Kellen Lavin

Washington and Lee University ( email )

204 W Washington St
Lexington, VA 24450
United States

Tobias A. Lehmann

University of St. Gallen - LS: School of Law, Students ( email )

Switzerland

Anne Van Aaken

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

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