Michael Waibel is a University Lecturer at the University of Cambridge.
Sergio Puig’s article offers a refreshingly new, thought-provoking analysis of the links between investment arbitrators. Who the parties appoint as arbitrators matters for how the investment treaty regime operates. Criticism of the appointment process in investment arbitration is widespread, yet rigorous empirical work on this important aspect of the investment treaty regime remains rare. Relying on the theoretical frame of social network analysis, Sergio sheds light on the interactions among ICSID arbitrators. His analysis suggests that a core group of 25 arbitrators enjoys disproportionate influence on the development of the investment treaty regime. To understand what animates the regime, it may suffice to analyse the preferences and political philosophy of these 25 ‘power-brokers’.
The Core-Periphery Divide and Underrepresentation
The core of the arbitration network is composed of 25 arbitrators. Members of this elite group are on average connected to 11.75 other arbitrators. The core’s cultural and legal homogeneity is striking: 14 Europeans, 4 Latin Americans, 3 Canadians, 1 New Zealander and only 1 US arbitrator. Similarly, among the top ten countries of origin of ICSID arbitrators overall, five are Euro-Atlantic states (US, France, UK, Canada and Switzerland) and five Latin American. By contrast, African and Asian arbitrators have rarely been appointed to ICSID tribunals, despite significant inward- and outward flows of foreign investment to and from Asia in particular. In such data-intensive work, minor errors are bound to creep in. For instance, in Figure 4, Vaughan Lowe appears as a US, rather than a UK national, and the 26th arbitrator in the core between Jonny Veeder and Jan Paulsson remains nameless.
The formal bond of nationality may be only a crude measure of arbitrator behaviour. As Sergio rightly highlights (p. 405), many arbitrators with nationalities of developing countries have received at least part of their legal education in developed countries (chiefly the UK, the US and France). Indeed, if one focuses on arbitrators who have spent most or all of their adult lives in a developing country and have not worked or received part of their educated in developed countries, the voice of developing countries in even less represented among ICSID arbitrators than the formal link of nationality would suggest.
Other demographics are also underrepresented among ICSID arbitrators, most notably women. 93 percent of all ICSID appointments were male arbitrators (p. 404). Given that Brigitte Stern has accumulated the highest number of appointments of any ICSID arbitrator, the share of female arbitrators is even lower at 5 percent (p. 405). Two female super arbitrators apart, women are at the periphery of the arbitration network. This gender imbalance mirrors the general characteristics of the entire arbitration network (p. 411).
Yanhui Wu and I have recently assembled data on a control group composed of more than 700 potential ICSID arbitrators, i.e. individuals with similar characteristics and qualifications to those who have already been appointed to at least one ICSID tribunal. Our control group includes current and former ICJ and WTO Appellate Body (AB) Members who, unlike some of their judicial colleagues, have yet to be appointed to an ICSID tribunal, and partners at leading arbitration practices in the same position. Ten former AB members and 18 current and former ICJ judges since 1990 have never been appointed. The following table compares some characteristics of the treatment and control groups. Read the rest of this entry…