*Karl P. Sauvant, PhD*
*Resident Senior Fellow*
*Columbia Center on Sustainable Investment*
Columbia Law School - The Earth Institute, Columbia University
435 West 116th St., Rm. JGH 825, New York, NY 10027
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Self-judging Essential Security Interest Clauses in IIAs", "Can Host
Countries have Legitimate Expectations?", "The Next Step in Governance: The
Need for Global Micro-regulatory Frameworks", "How International Investment
Agreements can Protect Free Media", "The Evolving International Investment
Law and Policy Regime: Ways Forward", "China's Outward FDI and
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*Columbia FDI Perspectives*
Perspectives on topical foreign direct investment issues
No. 196  March 27, 2017
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Matthew Schroth ([log in to unmask])
*The Equal Representation in Arbitration Pledge: two comments on its scope
of application*
*** <#m_2413157456812617644__edn1>
John Gaffney** <#m_2413157456812617644__edn2>

The Equal Representation in Arbitration Pledge (Pledge) was announced in
May 2016.[1] <#m_2413157456812617644__edn3> It commits its signatories,
mainly comprised of law firms, arbitral institutions and individuals, to
improving the profile and representation of women in arbitration, including
the appointment of women as arbitrators on an equal opportunity basis.

Action on gender diversity is required. Women are underrepresented in
international arbitration. But diversity is not confined to gender.
Diversity includes ethnicity, race, color, functional diversity, culture,
geography, political beliefs, age, religious beliefs, sexual orientation,
and socio-economic status. International arbitration has failed to achieve
diversity in the fullest sense. For example, while 32% of parties to
International Chamber of Commerce (ICC) arbitration in 2013 were from
Africa, Asia and the Pacific, less than 3% of arbitrators appointed in ICC
arbitrations that year were African and less than 12% from Asia and the
Pacific.[2] <#m_2413157456812617644__edn4> In 2015, there were 221 Arab
parties involved in ICC cases, but there were only 54 Arab arbitrator
appointments.[3] <#m_2413157456812617644__edn5> As of June 2016, only 4% of
ICSID cases were arbitrated by entirely non-Anglo-European tribunals.[4]

The inclusion of individuals of varied racial, ethnic, gender, and social
backgrounds in international arbitration only ought to enhance the
legitimacy of the system. There should be sufficient diversity so that
parties “view the tribunal as representing a cross section of the business
world” (or at least, a “cross section of an idealized business world that
is modern, creative and diverse”).[5] <#m_2413157456812617644__edn7> A
party from a diverse background appearing before a panel where at least one
member shares that background will be more likely to perceive that its
arguments have been received and considered.[6]
<#m_2413157456812617644__edn8> A more diverse panel of arbitrators will
also provide a wider range of perspectives and experiences that are often
lacking among arbitrators who have had life experiences that differ greatly
from those of the parties.[7] <#m_2413157456812617644__edn9>

The lack of diversity in international arbitration and in the legal sector
generally is not new. The American Bar Association, for instance, has
sought for some years to “eliminate bias and enhance diversity” through
“[p]romot[ing] full and equal participation in the Association, our
profession, and the justice system *by all persons*.”[8]

The Pledge thus does not go far enough in its coverage of a limited
category of persons.

And yet, while the Pledge’s scope of application is too limited at present,
it may potentially be too wide in another respect. Its signatories promise,
“where they have the power to do so… [to] appoint a fair representation of
female arbitrators.”  It’s not clear from the Pledge whether this duty
extends to law firm signatories. If it does, it raises questions of how
such firms are to balance their duty to their clients and their commitments
under the Pledge.

Parties want to select the most well-known, experienced arbitrators. They
are interested in winning their case—not changing the world.[9]
<#m_2413157456812617644__edn11> Outside counsel’s duty is to appoint an
arbitrator in the best interests of the client, not necessarily in the best
interests of diversity.  This is not to suggest that the two are mutually
exclusive. However, I suggest it is a role best reserved to the Pledge’s
arbitral institution signatories when performing their appointment role. As
Emmanuel Gaillard observed, “anecdotal evidence shows that institutions
actively seek to appoint newcomers and promote diversity. It is the parties
who resist change.”[10] <#m_2413157456812617644__edn12>

Aside from the unique role that arbitral institution signatories can, and
should, play in the foregoing respect, all Pledge signatories should focus
on implementing systematic and effective use of mentorship, pro bono,
tribunal secretary, and networking opportunities, in an effort to achieve
greater diversity. In addition, law firm signatories should actively
suggest to clients more diverse candidates for appointments in arbitration
cases, and refrain from relying exclusively on the same pool of usual
appointees. These sound, practical steps will go some way to helping ensure
fair representation, by creating awareness on the part of non-signatory
parties of a more diverse pool of suitably-qualified arbitrators, whilst
respecting their autonomy to make the final decision as to whom they wish
to appoint.

The Pledge is a laudable step in the journey toward increased diversity in
arbitration. The next step must be to expand the Pledge’s scope of
application whilst ensuring it does not overreach.

* <#m_2413157456812617644__ednref1> *The Columbia FDI Perspectives are a
forum for public debate. The views expressed by the author(s) do not
reflect the opinions of CCSI or Columbia University or our partners and
** <#m_2413157456812617644__ednref2> John Gaffney ([log in to unmask]) is
a Senior Associate with Al Tamimi & Co., specializing in international
arbitration. The author is grateful to Andrea Bjorklund, Giorgio Sacerdoti
and Tania Voon for their helpful peer reviews. The author also wishes to
thank Malak Nassredine for her assistance in researching this Perspective.
The views expressed are personal to the author and do not purport to
represent the views of Al Tamimi & Co. or its clients. *Columbia FDI
Perspectives (ISSN 2158-3579) is a peer-reviewed series.*
[1] <#m_2413157456812617644__ednref3> Alison Ross, “The Pledge,” *Global
Arbitration Review*, May 18, 2016,
[2] <#m_2413157456812617644__ednref4> Julianne Hughes-Jennett and Rashida
Abdulai, “Barriers to entry-the lack of diversity in international
arbitration,” Jul. 15, 2015,
[3] <#m_2413157456812617644__ednref5> “We lag behind on diversity, Ziadé
warns,” *Global Arbitration Review*, Nov. 18, 2016, http://
[4] <#m_2413157456812617644__ednref6> ICSID, *The ICSID Caseload:
Statistics *(2016, 2nd issue), p. 30.
[5] <#m_2413157456812617644__ednref7> Samaa A. F. Haridi, “Towards greater
gender and ethnic diversity international arbitration,” *International
Arbitration Review*, vol. 2 (2015), p. 308.
[6] <#m_2413157456812617644__ednref8> *Ibid.*, p. 311.
[7] <#m_2413157456812617644__ednref9> Sasha A. Carbone and Jeffrey T.
Zaino, “Increasing diversity among arbitrators,” *NYSBA Journal*, vol. 84
(2012), pp. 33-37.
[8] <#m_2413157456812617644__ednref10> ABA, “Goal III report: the state of
racial and ethnic diversity in the American Bar Association,” 2012,
(emphasis added).
[9] <#m_2413157456812617644__ednref11> Monika M. Gonzalez, “Arbitration
pledge for diversity met with skepticism in South Florida and Latin
America,” *Daily Business Review*, Jun. 29, 2016, http://www.
[10] <#m_2413157456812617644__ednref12> Emmanuel Gaillard, “Sociology of
international arbitration,” *Arbitration International*, vol. 31 (2015), p.

*The material in this Perspective may be reprinted if accompanied by the
following acknowledgment: “John Gaffney, ‘The Equal Representation in
Arbitration Pledge: two comments on its scope of application,’ **Columbia
FDI Perspectives, No. 196, March 27, 2017. Reprinted with permission from
the Columbia Center on Sustainable Investment (***
A copy should kindly be sent to the Columbia Center on Sustainable
Investment at **[log in to unmask]* <[log in to unmask]>*. *
For further information, including information regarding submission to the
*Perspectives*, please contact: Columbia Center on Sustainable Investment,
Matthew Schroth, [log in to unmask]

   - No. 195, Laza Kekic, “FDI to the UK will remain robust post-Brexit,”
   March 13, 2017.
   - No. 194, Ilan Strauss and Vasiliki Mavroeidi, “How India can benefit
   from FDI: lessons from China,” February 27, 2017.
   - No. 193, David Collins, “Investment contracts are not a substitute for
   investment treaties,” February 13, 2017.

*All previous FDI Perspectives are available at *
*. *

*Other relevant CCSI news and announcements*

   - *On March 13, 2017*, CCSI's Lise Johnson and Brooke Guven published an
   article in *Investment Treaty News* entitled The Settlement of
   Investment Disputes: A Discussion of Democratic Accountability and the
   Public Interest
   In this article, the authors consider the threats to principles of good
   governance, including government accountability, respect for the rule of
   law, transparency, and respect for citizens’ rights and interests under
   domestic law and international human rights norms, that are posed by the
   settlement of treaty-based investor-state disputes. The authors also
   consider the exacerbated threats posed by the settlement of disputes that
   include government counterclaims, and highlight the need for the ISDS
   reform agenda to include a focus on these issues.
   - *In March 2017*, CCSI made a submission to the European Commission
   (EC) in response to its “Public consultation on a multilateral reform of
   investment dispute settlement.” CCSI’s submission consisted of a response
   to the form questionnaire
   by the EC and a supplementary “Position Paper
   to explain in greater depth CCSI’s views on the EC’s proposed Multilateral
   Investment Court (MIC). More information is available here
   - *On May 11-12, 2017*, The Asia FDI Forum III
   gather top academia, government, company and civil society practitioners in
   Hong Kong, who will discuss regional investment trends, highlight specific
   features of China’s and EU’s investment treaties and policies, and explore
   the various legal and policy implications that the treaty currently under
   negotiations between them will have. Organized by the Faculty of Law of
   the Chinese University of Hong Kong
   the Centre for Financial Regulation and Economic Development
   and Tsinghua Law School
   with the support of the Columbia Center on Sustainable Investment and the
   World Economic Forum, the Asia FDI Forum III will host a comprehensive
   discussion on the PRC-EU negotiations for an investment treaty, where
   attentive analysis and new proposals will both emerge. *For more
   information, and to register, please go here

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