On February 18, 2020, ICSID published an updated list of the Members of the Panel of Conciliators and Panel of Arbitrators (“ICSID Panels”). Notably, this updated list contained the 60 designations made in 2019 by 14 Member States to the ICSID Panels. During the relevant time period, designations to the ICSID Panels were made by Botswana, Denmark, Finland, France, Germany, Honduras, Republic of Korea, New Zealand, Portugal, Qatar, Saint Lucia, Slovak Republic, Sudan, and Uruguay, with some designations being redesignations.
Of these 60 individuals, only 15 are women. Of these 15 women, five were nominated by France and three were nominated by Germany. Botswana, New Zealand, and Finland each made two female designations. Other Member States which made nominations in 2019, including Denmark, Honduras, Republic of Korea, and Portugal, made no female designations at all.
Such Member States are unfortunately not alone in their lack of gender diversity. The ICSID Panels are currently comprised of 680 individuals designated by 125 Member States, but only 132 individuals, or, 19% are women. This includes a remarkable 51 Member States which have made all male designations. Crucially, of the Member States which have designated the maximum number of Panel members (four for each Panel under Article 13(1) of the ICSID Convention although a person may serve on both Panels under Article 16(1) of the ICSID Convention), the following Member States’ Panel members are currently all male: Afghanistan, Austria, Barbados, Chile, Cyprus, Egypt, Japan, Republic of Korea, Luxembourg, Malaysia, Mali, Mauritius, Morocco, Paraguay, Portugal, Romania, Saudi Arabia, Singapore, and the UAE.
Conversely, other Member States such as Botswana, North Macedonia, France, Haiti, the United States, Spain, Mexico, Panama, Rwanda, and Zimbabwe have 50% or more women Panel members.
These realities reflect a continued struggle in the fight for gender parity in international arbitration despite the notable strides made towards equality in recent years within the ICSID framework. These figures must also serve as a reminder of the universality of the problem and the universality of efforts to correct it. Gender imbalance is not localized to a particular region and at the same time, gender parity in designations to the ICSID Panels is being achieved by Member States in all corners of the world.
Member States can and should aim to achieve gender parity in their designations with urgency. First and foremost, in accordance with the criteria for designation set forth at Article 14(1) of the ICSID Convention, the 38 Member States which have not yet made any designations to the ICSID Panels, including Bosnia, Canada, Côte d’Ivoire, the Gambia, Iraq, Kazakhstan, Kosovo, Montenegro, Serbia and Turkmenistan should immediately make gender balanced designations while also not excluding prioritizing female candidates to assist in shifting the overall composition of the ICSID Panels towards gender parity more quickly. Member States which have made all male or mostly male designations to the ICSID Panels should, as soon as practicable (i.e. before the next lapse of the term designations) seek to nominate an equal number of female and male candidates.
Encouragingly, the 26 designations made by several Member States in the first couple of months of 2020, which also appear in the updated list, reflect that 12, i.e. almost half, are women. Four of Spain’s seven designations are women.
Panel members are integral to the functioning of the ISDS system at ICSID. The Chairman of the ICSID Administrative Council (“Chairman”), when called upon to appoint a Conciliator or Arbitrator pursuant to Articles 30 or 38 of the ICSID Convention, is restricted in his choice to Panel members. Moreover, all appointments to ad hoc Committees must be made by the Chairman from the Panel of Arbitrators under Article 52(3) of the ICSID Convention.
From 1966 to 2019, ICSID appointments of Arbitrators, Conciliators, and ad hoc Committee members totaled 713, of which 637 (89%) were male and 76 (11%) were female. Looking only at the figures for 2019, there has been some improvement: 24 (70%) of ICSID appointments were male while 10 (30%) were female. Yet, when considering Party appointments of Arbitrators, Conciliators, and ad hoc Committee members in 2019, it is striking that claimants appointed men 89% of the time (52 out of 58 cases) and women 11% of the time, despite not being restricted in choice to members of the ICSID Panels. Respondents in 2019 appointed men 69% of the time (29 out of 42) and women 31% of the time (13 out of 42). Said differently, last year the Chairman was three times more likely to appoint women than claimants were and about as likely to appoint women as respondents were, keeping in mind that this result was achieved in spite of the fact that only 19% of the ICSID Panels are currently women. This confirms ICSID’s awareness of the problem of gender imbalance and willingness to act to improve it, which can only be expected to yield better results when there is gender parity in the pool of candidates from which the Chairman makes appointments.
Gender parity in the ICSID Panels may also have the added benefit of influencing the parties towards greater gender parity when appointing Arbitrators or Conciliators as (i) Member States having designated women on the ICSID Panels may be more inclined to appoint women in their capacity as respondents, and also because (ii) both claimants and respondents and their counsel may in practice consult the ICSID Panels in their own decision-making process, something which ICSID has indicated that parties are “welcome to do.”
Notwithstanding the above, gender parity on ICSID Panels, while necessary, remains just one piece of the diversity puzzle. The legitimacy of the ISDS system as a whole depends also on increasing diversity in other aspects of Arbitrator and Conciliator profiles such as national origin, professional background, race, and religion.
Submitted by Lara Elborno – ArbitralWomen Member and Associate, DLA Piper in Paris.