Whenever I get asked this question, I always have to start by mirroring my prime minister, Justin Trudeau. Trudeau said that a perfectly balanced cabinet was 50/50 male/female. When he was asked why, he responded with an answer to the effect of “because it's 2015.” I think there is a lot of merit in that answer—simple but effective.
I also think it is extremely important to put aside the question—which I will address momentarily—of whether diversity affects the actual decision-making processes. The fact is that these are international courts and tribunals, and they must be reflective of the community that they are judging. Particularly when they are judging individuals, individuals must see themselves reflected in those who are judging. You must have benches that reflect the international community. It must reflect that we have half the population male, and half female. It must reflect the various regions of the world. If it does not do that, then the court becomes one part of the world judging another part of the world, a criticism that certainly the ICC faces all the time. We play into that unless we have a focus on gender balance and on geographic division, and as well obviously legal system balance, which is also very important.
Some agree with that premise but nonetheless ask the question: do you really need these systems, these requirements, these quotas in order to achieve that. During the negotiation of the Rome Statute, I was an ardent opponent of the provision relating to the gender requirement. “Listen,” I thought, “I can get where I need to get to without any of these requirement provisions.” I was so wrong. Because all one has to do is to take a look at the ICTY. I love the work of the ICTY and its tremendous accomplishments. This was a tribunal that had, early on, a female president, and two very impressive female prosecutors. But for about the last seven years, the ICTY did not have a single female judge, not a single female principal across the board. No one can argue that at its latter stages, this was because there were no qualified women available to meet those requirements.
In the international sphere, the reality is that the balance is just not there. And at the national level, states are not promoting enough good, diverse candidates for positions on international courts. So, we must have in place these mechanisms. They have been very effective in the ICC in ensuring that we have good geographic representation, if not quite gender balance.
Regarding the question of whether diversity affects decision making, there are some very interesting statistics from domestic jurisdictions about how very different judgments and decisions will arise dependent on the composition of panels, particularly in certain fields. In the immigration field there are some really shocking statistics on this issue. I am not so sure we are able to do similar studies of international decision making; the volume of cases may preclude it. But one might come to the same conclusion perhaps because of the nature of the cases. (When I sat on the Srebrenica case at the ICTY, I sat with three men from different parts of the world, and I do not think we had different perspectives on the principles or the crimes themselves because of gender or geography.)
What diversity does bring is perspective. Not necessarily a female perspective or a male perspective or a cultural perspective, but different people coming from diverse backgrounds, women of different experiences, and men too, bringing different perspectives. When you are sitting in a three-person chamber or a five-person chamber, different perspectives make a huge difference, because you can share from those different perspectives. Certainly where I see it most affecting the work has been, in a criminal context, the assessment of credibility. It is an enormously valuable thing to have different perspectives when you are trying to assess the credibility of witnesses, especially those coming from different cultures. So, I think that is a hugely important contribution that diversity brings. But that is just one example. My overall position is that, from a principle and practical point of view, it is enormously important to have diversity and to have gender balance.
First of all, I agree very much with what Kimberly has just said. But let me just make one other point: in civil cases, the diversity that probably is most drastically reflected in the attitude of the judge to a particular point to be decided is the diversity of professional backgrounds. This is easily overlooked if you compare an international court with a domestic one. If you go to a circuit court of appeals in the United States or its equivalent in the United Kingdom the judges may be of different gender, different race, different educational background, but they have spent years and years as trial lawyers, and usually as first instance judges before they went to the Court of Appeal. They have very homogenous ideas about what is admissible evidence, what is the purpose of a trial, and the balance between oral evidence and documentation.
That is not the case in international courts because you almost invariably have a panel where, again leaving aside gender and race, one of them was a career ambassador, one was a government legal adviser, another was a professor, a fourth was a trial lawyer. That diversity has a very considerable impact, not usually in relation to substantive legal issues but in relation to procedural ones. And that is why one is a little bit more suspicious of taking studies from the domestic environment that show different voting patterns by, for example, male judges and female judges, and extrapolating from that to the international sphere. In the national sphere you are taking those differences in the context of a broadly homogenous set of attitudes, so the differences are going to come out as much starker and more easily identified. That is less so in the international context because the judges may have different professional backgrounds, which may have an impact on their procedural decision making. In no respect does that alter my agreement with Kimberly about the need for gender diversity and the need for ethnic and geographical diversity. I think those forms of diversity are immensely important, but I think it is important that we also look at some of the other forms of diversity which one finds in international courts.
Question: Is the diversity of the international bench, including arbitrators, improving? Should there be more effort directed at expanding diversity and if so, what?
Eduardo Silva Romero
My impression is that the situation has improved, and is improving, but that there is still a lot of work to do in respect of three types of diversity: gender diversity, geographical diversity, and age diversity.
On gender diversity, we have seen, especially in international arbitration, some good initiatives such as “the pledge,” pursuant to which potential appointers of arbitrators should consider at least short-listing one or two women as potential candidates. These types of initiative seem to be paying dividends. The International Chamber of Commerce Court of Arbitration has also been very active in the promotion of gender diversity. However, I heard recently President Alexis Mourre of the ICC stating that, in 2017, more or less 20 percent of the arbitrators were women and that this percentage was an improvement because, in 2016, the percentage was about 16 percent; there is in any event a lot of work to do regarding gender diversity.
Regarding geographic diversity, I recall a time (being myself a Latin American) when the only way for a Latin American to be an international arbitration practitioner or an international arbitrator was for him or her to travel to Europe or the United States to be “polished” and, then, after being “polished,” he or she could become an international arbitration practitioner and be, eventually, appointed as an international arbitrator. This is what I did when I went to Europe of course, and, not without difficulty, I got “polished.” But now we can see that Latin Americans residing in Latin America, without “polishing,” and Asians residing in Asia, also without “polishing,” are being appointed as international arbitrators. As a result, the issue, for me, regarding geographical diversity has become the introduction of African practitioners into the field of international arbitration. Africa is a very diverse continent, as we all know, and the initiatives, especially the ones I know from the International Bar Association, have not been successful in promoting international arbitration there. The IBA Arbitration Committee has only a very few members coming from African states, which is not enough. I do not know if institutions such as the International Council for Commercial Arbitration (ICCA) are being more successful, but Africa seems to be the principal issue regarding geographical diversity right now.
Lastly, regarding age diversity, only one point. All arbitral institutions are currently promoting what they call fast or accelerated arbitrations for small claims and, in that context, they say that young arbitrators should take care of, and deal with, those cases. The problem, however, is that the young, potential arbitrators are often associates in international law firms, and there are some international law firms which forbid associates from taking any arbitrator appointment on the premise that there is a potential liability for the law firm if the young, brilliant arbitrator makes a big mistake and decides the case improperly. That is a pity. There is some work to do on age diversity as well, so that young people can learn case-by-case the job of being an international arbitrator, and become the big arbitrators of the future.
Question: What are the pitfalls of judges or arbitrators having other careers, or who are not consistently acting in the role of judge? This would obviously apply in arbitration, but also applies to many international courts, the UN International Residual Mechanism for International Tribunals (MICT) being one example. Everyone is aware of the “double hatting” issue in arbitration, but what other issues arise in cases overseen by intermittent judges and arbitrators?
The potential to bring together a tribunal of individuals whose background is particularly suited to the context of a particular dispute has traditionally been one of the hallmark advantages of arbitration. The experience that may make an arbitrator particularly suited to a case does not come solely from judging, but often from earlier careers and other professional activities.
Whenever members of the tribunal are involved in other activities and have other commitments (whether or not those commitments are judicial in nature), questions of scheduling and priority may arise. And it is up to any institution to determine whether it will make its members available for other activities, and on what terms. Beyond those considerations, however, the potential to bring together tribunal members with disparate professional backgrounds adds to the richness and flexibility of arbitration.
In practice, knowledge of the law is only one part of adjudication. Many cases turn on the evaluation of complex factual circumstances, on the credibility of witnesses, or on the appreciation of a dispute that may have political, as well as legal, overtones. Experience in fields other than judging can thus be particularly valuable. For instance:
• Experience working as counsel, within government, or in diplomatic circles can provide additional insight and sensitivity to how states function and approach decision making.
• In mixed arbitration, experience in business will likely add insight to the appreciation of the dispute and the actions taken by the parties. Financial experience can contribute to the understanding of claims for damages.
• Technical experience within a tribunal can also be particularly valuable in appreciating a factually complex dispute and either obviate the need for the appointment of an expert or assist in evaluating expert evidence. Historically, tribunals involved in the delimitation of boundaries would usually include a surveyor and geographer among their members (the use of tribunals composed entirely of lawyers becoming common only since the 1970s). Similarly, the arbitration procedure envisaged under the Indus Waters Treaty between India and Pakistan requires that at least one member of the tribunal be a qualified engineer.
There are, however, several aspects of dispute resolution for which prior experience in adjudication may be particularly valuable. In particular:
• Procedural experience may be particularly important (often more so than familiarity with the substance of past disputes, which may be case specific), and a strong proceduralist within the tribunal can greatly smooth the conduct of the proceedings and avoid pitfalls that are obvious with experience. Such procedural experience comes most often from extensive prior involvement in adjudication (whether as arbitrator, judge, or counsel) and may be difficult to find among individuals with other backgrounds. Procedural experience, however, is principally important for the chair or president of a tribunal, who generally takes the lead on such matters, and may be less essential for the tribunal as a whole.
• Prior experience in adjudication may also be helpful in developing sensitivity to the dispute resolution aspect of judicial or arbitral proceedings and the extent to which the way the proceedings are conducted and the outcome presented may contribute as much to resolution of the parties’ dispute as the formal decision. Such sensitivity, however, can also come from other backgrounds, for instance through experience in diplomatic negotiations.
Generally, the diversity of backgrounds and experience that can come together in the formation of an arbitral tribunal is an asset that contributes to its utility in the resolution of international disputes. Particular issues may, however, arise in connection with individuals serving both as arbitrator and counsel, especially in areas of law where similar questions arise repeatedly or where common provisions appear in a wide variety of treaties. While such issues must be handled with care, modern arbitral rules include well developed procedures to identify and address conflicts. At the same time, openness to arbitrators with other professional activities is also essential to broaden the pool of regular arbitrators and address real concerns about diversity (discussed previously). New entrants will face a significant obstacle if appointment as an arbitrator is not considered compatible with prior professional activities.