Recommended Citation
Douglas Pilawa,
Sifting Through the Arbitrators for the Woman, the Minority, the Newcomer,
51 Case W. Res. J. Int'l L.
395
(2019)
Available at:
https://scholarlycommons.law.case.edu/jil/vol51/iss1/14
Abstract
This Note examines the process of choosing an arbitrator in international arbitration. Much of the debate and criticism of this process addresses the lack of diversity in arbitral tribunals around the world. Diversity in this context means not only traditional diversity (i.e. gender, race, ethnicity), but also the basic idea of adding "fresh faces " to arbitral tribunals. Yet the ethical obligation to provide a client with the best chance to prevail encourages counsel to choose a familiar, wellknown name with an established "track record" over a littleknown "dark horse. " This tension illustrates a fundamental point of friction in international arbitration: choosing experienced arbitrators or "fresh faces, " and which group ensures continued success of international arbitration as a dispute-resolution system. This Note argues that much of the debate and the calls to action are unconvincing for two reasons. First, the unsupported arguments used to justify proactive efforts to diversify arbitral tribunals frustrate skeptics from seeing the actual benefits that diversity could bring. Second, the yearly surveys that state the same findings--that arbitral tribunals are not diverse enough--are crucially misdirected. Instead, the groups behind those surveys would be better served to show how diversity of arbitral tribunals could solve other problematic areas in international arbitration--like lengthy proceedings and rising costs. Once clients and counsel alike begin to take notice of diversity's collateral effect, the subsequent natural shift to a more diverse arbitrator pool will occur and prove sustainable for the health of the whole system.