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ICSID – Improvements in Diversity

3 February 2017 Features

Diversity considerations are becoming more and more important in the field of arbitration. Even though the number of official statistics addressing this issue is very low, one scholar has looked at the issue of diversity, starting with an analysis of the regions from which ICSID-appointed arbitrators come from[1].

The author found that in 289 closed cases conducted from 1972 to 2015, in roughly 45% of the instances, the tribunals were entirely formed of Anglo-European arbitrators. In 84% of the cases, either two or more of the tribunal members were Anglo–European, or the sole arbitrator was Anglo–European. Only 4% of the cases were arbitrated by entirely non Anglo-European tribunals.

Like other institutions, ICSID has taken steps to increase diversity and this is now reflected in the overall changes in percentage. A recent statistical report issued by ICSID[2] shows that diversity on its panels is improving. The report findings are based on an analysis of the number of cases registered under the ICSID Convention and the Additional Facility Rules, as well as from the number of cases administered by the ICSID Secretariat. According to the report, regard has been given to the nationalities as well as geographic origins of the arbitrators, conciliators and ad hoc committee members who have been appointed in ICSID cases.

Diversity is a public value and institutions that are intergovernmental organisations, such as ICSID, are best placed to take active steps in pursuing this value. This is mainly because intergovernmental organisations should follow the values of the states, rather than the stakeholders or other private entities. Therefore, ICSID as well as other similar institutions play a crucial role in the way States decide to shape the future of the system.

The report indicates an increase in diversity in annulment committee appointments, for which ICSID has received criticism in the past. Western European appointments have declined, representing 42% of all appointments in comparison with almost 50% in 2015. With Asia Pacific becoming the second most common point of origin for committee members, it has accounted for 19% in comparison with 13% in the previous year. South America has also seen a change in diversity, with appointments increasing from 5% to 13%.

Based on the findings of the report, the overarching conclusion is that there seems to be an apparent increase in diversity of arbitral appointments in terms of nationality during 2016. For the past year, arbitrators, conciliators and ad hoc committee members from South and Central America, the Caribbean, Middle East, Asia Pacific and Eastern Europe have been appointed in roughly 39% of cases. This represents a significant improvement compared to 24% in the year before.

Sabina Adascalitei LLB, LLM, MCIArb
Research and Academic Affairs Coordinator

[1] C. Dolinar-Hikawa, Beyond the Pale; A Proposal to Promote Ethnic Diversity Among International Arbitrators, TDM 4 (2015), in Dealing with Diversity in International Arbitration.