Concluding remarks

The current state of diversity in international arbitration is marked by inequality. Data on gender, and geographic and regional diversity is evidence of this. However, the issue of diversity in international arbitration can be viewed from a variety of angles. Indeed, arbitration users seem to be increasingly aware of the importance of taking into account alternative considerations such as the ethnicity of arbitrators. Educational background, legal or otherwise,

47 These figures are consistent with those of Sergio Puig, who analyzed all 1,412 appointments made in arbitrations under the ICSID Convention and the ICSID Additional Facility through February 2014 (Puig 2014, 405). According to the ICSID report for the fiscal year of 2020, the institution achieved “the greatest nationality diversity in arbitrator appointments” with the appointment of individuals of 44 different nationalities (2021, 26). It goes on to say that 15% of all appointments were first-time and 42% of them were nationals of low- or middle-income countries (Ibid).

48 These arbitrators are Stanimir Alexandrov (Bulgaria), Francisco Orrego Vicuña (Chile), Rodrigo Oreamuno (Costa Rica), and Horacio A. Grigera Naón (Argentina). Looking at the list of 25 female arbitrators with the most appointments in investment arbitrations (as of February 1, 2019) (Table 7), the picture is similar—only 5 female arbitrators are not nationals of a WEOG State, namely Teresa Cheng (Hong Kong), Nina Vilkova (Russia), Nayla Comair-Obeid (Egypt), Maja Stanivuković (Serbia), and Mónica Pinto (Argentina).

49 These arbitrators are Francisco Orrego Vicuña (Chile), Rodrigo Oreamuno (Costa Rica), Horacio Grigera Naón (Argentina), Claus von Wobeser (Mexico), Eduardo Zuleta (Colombia), Raúl Vinuesa (Argentina), Guido Santiago Tawil (Argentina), Eduardo Silva Romero (Colombia), Ricardo Ramírez Hernández (Mexico), Enrique Gómez Pinzón (Colombia), and Pedro Nikken (Argentina).

professional experience,⁵⁰ age,⁵¹ ethnicity, ideological and political preferences,⁵² psychological and behavioral characteristics are just a few alternative angles. But the landscape of international arbitration is changing and changing gradually. The relevant data is also evidence of this trend. In this context, it is worth recalling Dezalay and Garth’s words about the status of the ICC, as they are indicative of what happens with the appointment of international arbitrators in general. They said as follows:

[…] history is a key legitimator in the legal field. No one can compete with tradition without ending up underscoring that one group is a new arrival and another the established elite, akin to the aristocracy. The passage of time also tends to obscure the politics that created an institution, thereby giving it an aura of naturalness.

(1995, 46).

Be that as it may, this change cannot be properly understood unless it is placed within the broader political framework that calls for increasing diversity across a range of fields and disciplines. After all, the trend we are now witnessing is also part of the international arbitration community’s goal to make its social interests more heard and to further contribute to its legitimacy. ⁵³ But regardless of whether international arbitration is indeed diverse enough, it remains important to determine whether the application of the law varies depending on who interprets it. To this end, we must address how we think and decide as

50 It should come as no surprise that the professional profiles of international arbitrators are not simply the result of change, but of careful consideration. Indeed, members of the arbitral establishment and newcomers interact with each other in such a way that “each side seeks to promote the value of the know-how or the competence that it has mastered the best […] [and] to gain a diversified portfolio of arbitration capital” (Dezalay and Garth 1995, 42–43).

51 For an overview of the generational conflict between the pioneers of international arbitration and the technocrats who came after them, see (Dezalay and Garth 1995). The issue of age is controversial among users of international arbitration. Some have disregarded the lack of age diversity, emphasizing that relevant experience is more important. Others have observed that “in general, they have felt younger arbitrators display a particular drive to perform well in arbitration, hoping that their proficient conduct will be noticed and that they will therefore attract more appointments in the future” (Queen Mary - University of London and White & Case 2018, 17).

52 For example, there has been speculation as to whether the consistent appointment of Charles Brower (96.15%), Horacio A. Grigera Naón (85.71%) and Stanimir Alexandrov (78.13%) by foreign investors, on the one hand, and Brigitte Stern (93.18%), J. Christopher Thomas (97.67%), and Phillipe Sands (83.33%) by respondent states, on the other, has anything to do with their favoring either foreign investors or host states.

53 See, fn.26 abobe.

CHAPTER I | THE DEMAND FOR INCREASING DIVERSITY IN INTERNATIONAL ARBITRATION

human beings before we plunge into the wonders of legal doctrine. I will proceed as suggested in the following chapter.

CHAPTER II | HOW WE THINK, CHOOSE, AND ACT

A. Somatic markers as the basic framework for what is coming

More than a hundred years ago, Dostoevsky noted puzzlingly that “human motives are generally much more complicated than we are apt to suppose, and that we can very seldom describe them accurately” ([1868] 1963, XXIX:494).⁵⁴ The bewilderment of human motives was not only a source of wonder in Russian literature. Fortunately, we are no longer in the same place in this respect, and the scientific investigations that followed have shed more and better light on the wonders of the human mind. I shall now provide a brief account of how we think, choose, and act based on psychological and neurobiological findings. I undertake this task, albeit out of caution and prudently, because I believe that if we are to conduct a thoughtful analysis of the phenomenology of legal reasoning, we must take into account the larger framework within which our daily thinking, choosing, and acting take place, in addition to welcoming on board at a later stage the idiosyncratic features of the legal doctrine. Otherwise, I fear, for this reason alone, the essence of the latter could never be achieved—after all, the quality of humanity takes precedence over that of a lawyer, an adjudicator, an attorney.

By thinking and reasoning, either consciously or intuitively, we try to choose an answer from alternative possibilities. Accordingly, recognizing how we think in everyday life is paramount to understanding legal reasoning. For every legal decision, regardless of its inherent complexity, is also the result of a thorny network of biological mechanisms, cultural and personal references, and value-based judgments in which attention, working memory, emotion, and the ability to select one possibility from a diverse repertoire are indispensable tools.

In reasoning, the mental landscape is not equivalent to a blank canvas waiting for a painter to fill it with colors. Even before we begin to reason, an extensive and rich repertoire of images populates our minds, which we draw upon in the face of the specific circumstances we face. Each of these images—perceptual or recalled—reflects a variety of words, languages, ideas, broad knowledge—including legal knowledge—priorities, interests, experiences, and preferences that form categories to which we constantly draw upon to guide us in making

54 Free translation of “Não esqueçamos que os móbeis das acções humanas são habitualmente muito mais complexos e mais variados do que parecem à primeira vista; raro é que se definam nitidamente.”