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The lack of geographic diversity among arbitrators is a common critique of investor–state dispute settlement. This has emerged as a major legitimacy problem as 80% of ISDS cases are against non-Western respondent states. In this chapter, the authors map the existing level of diversity with new methods (tracking both nationality and residence) and examine whether greater diversity would make a difference in outcomes. The descriptive statistics reveal that only a third of arbitral appointments have gone to non-Western individuals, and that this falls to 25% when residence is taken into account. However, the issue becomes more complicated when examining the effect on outcomes. The regression analysis indicates that the absence of geographic representativeness can favour Western home and host states, especially when the Chair is from the West. However, possibly due to a high degree of institutionalization and socialization of arbitrators in the system, it does not appear at present that arbitrator nationality has a significant effect on outcomes.
This chapter focuses on the first stage in which some level of convergence between the adjudication of trade and investment disputes might be observed: treaty design. After an analysis of 144 PTAs the authors conclude that there is a rising trend of including investment chapters with ISDS mechanisms into PTAs. However, this trend is not uniform around the world. Therefore, if structural convergence is to occur between the two adjudicatory mechanisms, such convergence will not be global, but regional or local. The chapter then continues with a discussion of the potential implications of this phenomenon and argues that some level of convergence can be expected in two areas. First, the broader context and objectives of PTAs with investment chapters can have an influence on the reasoning of investment tribunals. Second, some level of converge might occur due to the interpretive functions of treaty committees. Nonetheless, convergence might be minimal due to: different epistemic communities; investment chapters often look like stand-alone BITs within a trade agreement; and the recent PTIAs require different qualifications for trade and investment dispute settlement decision makers.
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