How is Unconscious Bias Affecting the Impartiality and Independence of Arbitral Tribunals and How Can It Be Addressed?

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HOW IS UNCONSCIOUS BIAS AFFECTING THE IMPARTIALITY AND

INDEPENDENCE OF ARBITRAL TRIBUNALS AND HOW CAN IT BE ADDRESSED?

ERIN WENGER

LLM Track: International & European Law: Public International Law Supervisor: dr. Ingo Venzke

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ABSTRACT

Arbitrators are tasked with the responsibility of remaining fair and neutral during complex, contested disputes. During a hearing, arbitrators must attempt to clear their minds of personal bias to focus on the evidence and remain independent and impartial, as is required by

institutional rules. They must provide declarations of their impartiality to the parties or

arbitral institutions, and file disclosure statements in order to avoid situations that could cause an appearance of bias. Arbitrators are professional, to be sure, but they are also human and subject to the same societal, cultural, and environmental influences as anyone else. When these influences happen, they can affect human behavior and how humans perceive their environment on an unconscious level. In the arbitration context, this means that the unconscious influences can affect arbitrators in ways unbeknownst to them and that they cannot control. This presents a problem in the field, as it threatens fairness of the proceedings and legitimacy of the process overall.

Unconscious bias can arise in ways such as anchoring, affiliation bias, stereotypes, and attitudinal biases. Psychological studies provide us with suggestions for combating bias that could benefit the increasingly complex and diverse pool of participants using the arbitration forums, such as exposure to diverse groups and unconscious bias training. Additionally, legal scholars and arbitration practitioners have contributed ideas to help counteract the risk of bias, including increasing transparency and blind appointments. There has even been a

development in artificial intelligence that could provide an option for “machine arbitration.”

This paper will analyze unconscious bias from a cross-section of psychology and law to explain common ways that it can influence the outcomes of disputes. It will look at practices currently in place to address bias in general, including disclosures and challenge procedures, and show that those are primarily aimed at directly addressing the result of the biased

behavior. Because this type of mechanism aims at the result rather than the behavior, it will be suggested that approaches that take action prior to an incident of bias (debiasing) could be more effective and efficient. This paper does not aim at finding a “one-size-fits-all” solution to unconscious bias, but it suggests that institutions and arbitrators can make increased efforts to address this issue in order to contribute to preserving the integrity and impartiality of arbitration.

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4 “Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make

the man, whether he be litigant or judge.”1

1. INTRODUCTION

At the heart of any judicial or arbitral proceeding is having a dispute decided by an impartial, neutral decision-maker with fairness in the process.2 Practitioners and persons seeking justice expect a fair trial, and this right is embodied in rules and guidelines across the world.3 Criminal proceedings in which a person’s liberty is at stake are, of course, different from civil proceedings and arbitration; however, the expectation of and right to a fair hearing also extends to civil proceedings, and fairness is a necessary component for the legitimacy of any dispute resolution process.4 As the administrators of the process, judges and arbitrators are tasked with maintaining fairness during the proceedings. In addition, laws and procedural and ethical rules mandate that adjudicators remain fair and impartial throughout a hearing and render a decision that is based on the evidence presented, rather than on personal beliefs or opinions.5

Arbitration has historically been touted as a desirable alternative to court due to speed, cost, confidentiality, neutrality of forum, limited document production, and because it gives the parties more control over the procedural aspects of the case. As the differences between litigation and arbitration in some of these areas becomes less, parties still flock to arbitration

1 _{Cordozo B.N., THE NATURE OF THE JUDICIAL PROCESS, (Yale University Press 1921), 167.}

2 _{Lalive P., On the Neutrality of the Arbitrator an of the Place of Arbitration, SWISS}_{ESSAYS ON}

INTERNATIONAL ARBITRATION, (International Council for Commercial Arbitration 1984) at 23.

3 _{See e.g., Art. 10, Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.}

A/RES/217(III) (10 Dec 1948) (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”); Amendment V of The Constitution of the United States of America (“No person shall be…compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…”); Art. 14, ICCPR, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967). See also, Chapter 13:

Right to a Fair Hearing, FAIR TRIAL MANUAL (Amnesty International 2d ed., 2014), 118-120; Right to a

fair trial (civil limb), GUIDE ON ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECtHR 30 April 2017).

4 _{See Rozakis C., The Right to a Fair Trial in Civil Cases, J}_UDICIAL_{STUDIES INSTITUTE JOURNAL [4:2}

2004], 96; Inchausti F.G., Service of proceedings on the defendant as a safeguard of fairness in civil

proceedings: in search of minimum standards from EU legislation and European case-law, JOURNAL OF PRIVATE INTERNATIONAL LAW, 13:3, 475-518. See also, LCIA Reference No. 81224, Decision Rendered 15 March 2019, para. 3.5: “…by Article 6(1) ECHR, everyone [is] entitled to a ‘fair and public hearing…by an independent and impartial tribunal established by law.’”

5 _{See e.g. 28 USC 453, Oaths of justices and judges; Hyman M.B., Implicit Bias in the Courts, I}_{LL. B.J.,}

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5 because it provides a neutral forum, rather than requiring one party to litigate in the “home court” of the other,6_{and because parties favor having control over appointing a} decision-making.

Legal proceedings do not exist in a vacuum, however, and adjudicators necessarily import their past experiences and expertise when evaluating evidence.7 In fact, it can be viewed as advantageous to appear before an adjudicator who has experience handling disputes in a certain subject matter or area of law. As international arbitration has expanded as a dispute resolution mechanism,8 the types of disputes submitted have grown increasingly complex and arbitrators are tasked with resolving disputes involving issues of public policy,9 social regulations, trade disputes,10 even equestrian related matters.11 Experience alone is rarely seen as problematic for judges and arbitrators; however, not all experience, and influence thereof, is equal. Experience can be problematic if it morphs into prejudice or bias that negatively impacts fair and impartial decision-making or judgments. Because prejudice and bias can influence decision-makers, it should be examined in the international arbitration context to determine what can counteract these tendencies. In the famous words of Dr. Martin Luther King, Jr., “injustice anywhere is a threat to justice everywhere.”12

1.1. Defining the Problem

Current arbitral institutional rules and international practice guidelines can only do so much to remedy bias issues. One common remedy is to challenge or remove an arbitration, but there is a high threshold to remove an arbitrator from a case. It generally requires a conscious act of

6 _{Franck S.D., The Role of International Arbitrators, ILSA JOURNAL OF INTERNATIONAL & COMPARATIVE}

LAW, 2006, at 3.

7 _{Sussman E., Chapter 3: Biases and Heuristics in Arbitrator Decision-Making: Reflections on How to}

Counteract or Play to Them, in Tony Cole, THE ROLES OF INTERNATIONAL PSYCHOLOGY IN INTERNATIONAL ARBITRATION, International Arbitration Law Library Vol. 40, 45-74 at 64 (2017).

8 _{Puig S., Blinding International Justice, Arizona Legal Studies Discussion Paper 16-29, (Nov. 2016) at}

27-28 (discussing the growth of ICSID proceedings) (hereinafter, “Puig, Blinding”); Rigby B., The

explosive growth of international arbitration, COMMERCIAL DISPUTE RESOLUTION, (22 Aug 2016). See

also, The ICSID Caseload – Statistics, ICSID WORLD BANK GROUP, Issue 2018-1, pp. 7-8; 2018

International Arbitration Survey: The Evolution of International Arbitration, QMUL & White & Case,

p. 5 (hereinafter “QMUL Survey”) (97% of survey participants ranked international arbitration as their preferred method for cross-border dispute resolution).

9 _{Puig, Blinding, supra note 8 at 9, fn 29: (“[A]rbitrators autonomously resolve core questions of public}

law: […]. The difficulty here is not that these issues are resolved by international adjudication but that they are resolved by private adjudicator without adequate supervision by public judges.”).

10 _{Mercer International Inc. v. Canada (Award), ICSID Case No. ARB(AF)/12/3, 06 March 2018}

(concerning supplying energy to wood pulp mills).

11 _{W. v International Equestrian Federation (FEI), Award, CAS Case No. 1999/A/246, 11 May 2000.}

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6 bias or substantive proof of a risk of bias that amounts to justifiable doubts as to the arbitrator’s independence or impartiality.13_{Just as proving a legal theory in court requires fact-based} evidence,14_{so does the removal of an arbitrator. Unconscious or implicit bias can affect} arbitrators interactions with parties during the hearing and can impact their decision-making, but it is traditionally not something easily proven through fact-based evidence; therefore, it can be difficult to eradicate.

Further, people are generally unaware of their unconscious biases, and, therefore, are not aware of how they manifest in every day interactions.15 Conscious bias, on the other hand, is something people are generally aware of – making a conscious choice, based on a preferred characteristic. Conscious and unconscious bias taken alone are not necessarily problematic – they are normal cognitive behaviors that assist with human functioning. When these cognitive behaviors result in discriminatory actions or decision-making that has a negative or unlawful effect, they become problematic. Because inherent biases16 exist in all people, they affect all industries, including arbitration, where arbitrator neutrality and impartiality are required to maintain legitimacy and the integrity of the process.17 Furthermore, because of the importance of impartiality and fairness in arbitration, bias that impacts decision-making should not be allowed, whether it is driven by conscious or unconscious bias, and it should be addressed to the extent that it is impacting the field.

1.2. Structure and Aim of the Paper

This paper will analyze the current international arbitration scholarship and look at the role of an arbitrator and how they are appointed to cases (Section 2). Within this discussion, common criticisms about party-appointed arbitrators will be raised (Section 2.2). Notably, arbitrators are generally required to file disclosures listing such things as their affiliations, employment history, and any prior dealings with the parties or attorneys involved in the case, and this relates to the institutional standards for conflicts of interest and removal of an arbitrator due to

13 _{See, infra, Sections 2.3, 4.1.}

14 _{Strong S.I., Alternative Facts and the Post-Truth Society: Meeting the Challenge, 165 UNIVERSITY OF}

PENNSYLVANIA LAW REVIEW ONLINE 137 (2017), 138 (“Lawyers…[believe], honed through years of

training, that the best form of persuasion is through content-based arguments (so-called ‘hard evidence’).”

15 _{Jolls C. & Sunstein C.R., The Law of Implicit Bias, University of Chicago Law School, John M. Olin}

Law & Economics Working Paper No. 289 (April 2006) 9-10.

16 _{The terms inherent or implicit bias and unconscious bias will be used interchangeably.}

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7 appearance of bias (Section 2.3). Many, if not all, arbitral institutions also have procedures in place that permit parties to challenge arbitrators when there is perceived bias, typically for things such as contact with parties or prejudgment of a case, and a review of relevant institution rules is conducted within. We will also see that some circumstances that could lead to unconscious bias, such as having an all-male panel, similar cultural backgrounds across the panel, or even a specialized legal background, are not addressed by the rules and are generally permissible in arbitration. This paper will then explore several ways that unconscious bias affects arbitrators and decision-making, particularly in ways that may negatively affect impartiality by reviewing current literature on the intersection of psychology and the law as it pertains to unconscious bias (Sections 3.1, 3.2).

Unconscious bias has received attention recently for its role in hiring decisions or race, ethnicity, or gender discrimination issues, which is often linked to studies on diversity and the effects of a lack of diversity. U.S. Supreme Court Justice Anthony Kennedy even recognized that unconscious bias can have a discriminatory impact on individuals and groups in various settings, including court, even when there is no harmful or conscious intent.18 Indeed, the issue of lack of diversity and how it impacts panel composition and decision making has been raised in international arbitration (Section 3.3). After looking at several instances and examples of cases where arbitrators were challenged for a failure to remain neutral (Section 4), this paper will suggest that the current challenge procedures are inadequate to address issues that arise out of unconscious bias. It will then discuss several initiatives that are either being put into practice currently or that can be used in the future, including exposure to diverse group members and educating people about their unconscious bias tendencies, to combat the negative effects of unconscious bias on impartial decision-making in international arbitration (Section 5).

This paper does not attempt to assert that there is one all-encompassing answer to these nuanced, complex issues. However, in today’s society, unconscious bias has become a much-discussed phenomenon in many settings (hiring decisions, criminal sentencing, education, healthcare, etc.) and has even been thrust into the media spotlight.19 Because unconscious bias

18 _{Texas Dept of Housing & Community Affairs et al., v. Inclusive Communities Project, Inc., et al, 576}

U.S.___, slip op. (2015); US Supreme Court Recognizes Role of Unconscious Bias in Disparate

Treatment, Association for Psychological Science, 1 July 2015.

19 _{E.g., On 12 April 2018, a manager at a Starbucks in Philadelphia called police after two black men asked}

to use the restroom while waiting for a friend and were denied because they had not purchased anything. The men were arrested when police arrived, which led to protests and discussions about racial bias and

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8 affects all humans and influences decision-making, it is an issue that the arbitration community should consider to determine what, if any, effects it may have on the decision-making and, thus, impartiality or independence of arbitrators. For international arbitration to remain a legitimate and fair way of resolving disputes, it is necessary to look at how unconscious or implicit bias can impact decision-making and how it can be counteracted to protect participants from the effects of differential treatment.20

2. AN ARBITRATOR’S ROLE AS AN IMPARTIAL AND INDEPENDENT NEUTRAL

2.1. Party Autonomy and Arbitrator Appointment

One of the key features of international arbitration is that parties21 are in control of the process and can tailor the procedures to their needs, in particular, the selection of arbitrators.22 Parties can select arbitrators who have experience or specific knowledge relating to an industry or legal issue, whereas in courts, parties have little to no control over who will preside over a matter.23

Arbitration further allows parties to determine whether they will select arbitrators themselves or have a neutral institution assist and/or appoint arbitrators. Some institutions have minimum requirements that arbitrators must meet before the institution will appoint them. For example, in order to qualify to be on the roster of potential arbitrators for the ICDR, one must have a minimum of 15 years of professional experience, licensing and education for one’s field, leadership citations, training and substantial experience in arbitration, in addition to other qualifications.24_{Another example is in ICSID arbitration, where arbitrators must have} experience, but the Convention does not set forth a minimum number of years required. ICSID arbitrators must have “high moral character and recognized competence” in their respective

its effects. The company announced it would later close all US stores to hold training on racial bias and unconscious bias.

20 _{See, Jolls & Sunstein, supra note 15 at 11.}

21 _{For the purposes of this paper, the analysis will assume a simple dispute structure of one claimant and}

one respondent in a case. It will also analyze commercial arbitration and investment arbitration together as part of the same international arbitration system, rather than separate systems.

22 _{Waincymer J., Part II: The Process of an Arbitration, Chapter 5: Selection, Challenge and Change of}

Arbitrators, PROCEDURE AND EVIDENCE IN INTERNATIONAL ARBITRATION, (Kluwer Law International 2012) 255-382 at 256; Indlekofer M., Chapter 2: Public International Arbitration in Today's Dispute

Settlement Framework, INTERNATIONAL ARBITRATION AND THE PERMANENT COURT OF ARBITRATION, (International Arbitration Law Library, Vol. 27, 2013) 111-232 at 134 (party autonomy in international arbitration).

23 _{Born G.B., Selection, Challenge and Replacement of Arbitrators in International Arbitration,}

INTERNATIONAL ARBITRATION, 2D ED., (Kluwer Law International 2014) 1636, 1639-41 (hereinafter “Born, Selection”)

24 _{Application Information ICDR International Panel of Arbitrators and Mediators, INTERNATIONAL}

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9 fields, must be able to “exercise independent judgment,” and the Convention places emphasis on the importance of “competence in the field of law.”25_{Regardless of the appointment method,} however, there is an overarching requirement that arbitrators are fair, independent, and impartial.26 Gary Born writes:

“The parties’ autonomy under national arbitration legislation to select the arbitrators is generally subject only to limited exceptions, including mandatory requirements of equality and due process, mandatory requirements of impartiality and independence and mandatory capacity requirements…[T]hese various limitations on the parties’ autonomy are generally exceptional and very narrow.”27

In fact, the element of party autonomy involved in arbitration and arbitrator selection is of such importance that if the tribunal is not formed in a manner consistent with the parties’ agreement, it can be grounds for refusing enforcement of an award under the New York Convention or ICSID Convention.28 Thus, the parties agreement as to how arbitration panels are appointed is of the utmost importance because it can pose a threat to the legitimacy of an award.

2.2. Party-appointed arbitrators

Having party-appointed arbitrators is common practice in international arbitration,29_{but that} does not mean they are relieved from their duty of impartiality.30_{All arbitrators must remain} impartial and independent, showing no bias in favor of or against one of the parties, regardless of whether the arbitrator is appointed by an institution or by a specific party.31_The party-appointed arbitrator does not act as an advocate for counsel or the appointing party, and he or she must not act to advance that party’s case. If an arbitrator fails to maintain this neutrality, it

25 _{ICSID Convention Arts 14(1), 40(2); Reed et al, GUIDE TO}_ICSID_{ARBITRATION, (Kluwer Law}

International Jan. 2010) at 133; Qualifications for the Panels, ICSID WORLD BANK WEBSITE,

https://icsid.worldbank.org/en/Pages/about/Qualifications-for-the-Panels.aspx

26 _{Indlekofer, supra note 22 at 139-140; see e.g., ICC Arbitration Rules Art 11(1) (“Every arbitrator must}

be and remain impartial and independent of the parties involved in the arbitration”); UNCITRAL Arbitration Rules (2013), Arts 11-13 (requirement of disclosure of “circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence”); IBA Guidelines on Conflicts of Interest in International Arbitration (2014), General Principle 1 (“Every arbitrator shall be impartial and independent of the parties at the time of accepting the appointment to serve and shall remain so until the final award…”)

27 _{Born, Selection, supra note 23 at 1654.}

28 _{NY Convention Art V(1)(d); ICSID Convention, Art 52(1)(a). For a discussion on the interaction between}

party autonomy and the interaction with potentially conflicting national laws in the context of the NY Convention, see Born, Selection, supra note 23 at 1643-1646.

29 _{Puig, Blinding, supra note 8 at 19.}

30 _{Id. at 20.}

31 _{See e.g., id. at 30 (“All arbitrators are supposed to be independent and impartial, including the two}

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10 could lead to a challenge and possible removal of that arbitrator from the panel or the arbitrator’s resignation.32

In a typical case with a three-member panel,33 each party will select an arbitrator for appointment and the third arbitrator is then chosen by those two party-appointed arbitrators or may be appointed by the institution in accordance with its rules.34 The unilateral party-appointment method has raised concerns among some critics.35 One criticism is that parties engage in research of an arbitrator’s background and scholarly writings to try to select an arbitrator who appears predisposed to favor their position in the case, leading to the appointment of a one-sided arbitrator.36 Since both sides to a dispute are typically engaging in such tactics, the risk of one-sidedness is minimal. This is because when determining who will sit on the panel, parties will either have to agree on the appointment of an arbitrator or each party has a chance to select an arbitrator who seems to harbor views favorable to their case, and those opposing views would then neutralize each other37 (while the third arbitrator is a neutral selected by the two party-appointed arbitrators38). It is generally not an issue when parties engage in arbitrator research and purposeful appointment tactic, and, in fact, is a common practice in the field.39 It could become problematic if the arbitrator has engaged in behavior that shows prejudgment of an issue, however, in which case challenge procedures can be utilized.40

32 _{See e.g., The Republic of Croatia v The Republic of Slovenia, PCA, Partial Award dated 30 June 2016.}

33 _{Sole arbitrators are also possible and appointment procedures can equally vary.}

34 _{Waincymer, supra note 22 at 262-263; Arbitrator Appointment Procedures of Arbitral Institutions in}

Commercial Arbitrations, The Association of the Bar of the City of New York Committee on Arbitration,

(18 April 2018), 14-15 (hereinafter “Arbitrator Appointment Procedures”). Institutional rules also provide default appointment procedures if the parties do not agree. See e.g., ICDR’s list method, used in absence of parties’ agreement, whereby a list of 10-15 potential arbitrators are sent to the parties to rank and strike base on preference, available at www.ICDR.org.

35 _{See, Puig S. & Strezhnev A., Affiliation Bias in Arbitration: An Experimental Approach, Arizona Legal}

Studies Discussion Paper No. 16-31 (August 2016) at 2; Paulsson, Moral hazard in international dispute

resolution, ICSID Review, 25(2), 339-355;

36 _{See e.g., Puig, Blinding, supra note 8 at 16 (“A rational litigant will try to select a judge who has reliably}

shown the appropriate judicial philosophy towards a particular set of issues relevant to the litigant’s goals.”)

37 _{Waincymer, supra note 22 at 257, 266.}

38 _{Id. at 265: “Most rule systems allow the two party-appointed arbitrators to select a chair under a}

three-person tribunal.”

39 _{Waincymer, supra note 22 at 280.}

40 _{Id. (“It is accepted that there is no in principle problem with selecting an arbitrator based on broad}

predispositions. There is however a difference between the ethical right of counsel to adopt this approach, and the fairness and efficiency of such a tendency. As noted, if only one party does so, this is unfair; if both do so, it is ineffective and counterbalancing behaviour. The most extreme form of predisposition is an arbitrator that will always find for the appointing party. One should not pretend that this is not a potential issue. Besides the ethical issues, this can also be a basis for challenge as to impartiality.”)

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11 2.3. Declarations and Disclosures

In order to prevent arbitrators from serving on case where there may be conflicts of interest or clear bias, institutional rules generally require arbitrators to make disclosures prior to accepting a case appointment.41 Arbitrators disclose facts and circumstances that could raise questions (or “justifiable doubts”) about his or her impartiality or independence or that could lead to disqualification,42 and the institutional rules provide guidance on when an arbitrator might be removed due to a conflict. For instances, the IBA Guidelines43 state that arbitrators should disclose “facts or circumstances…that may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence”44_{and that “[a]ny doubt as to whether an arbitrator} should disclose certain facts or circumstances should be resolved in favor of disclosure.”45 Similarly, the UNCITRAL Rules provide that an arbitrator “shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence.”46_While the UNCITRAL Rules do not define “justifiable doubts,” the IBA Guidelines provide the following description:

“[d]oubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision. Justifiable doubts necessarily exist as to the arbitrator’s impartiality and independence in any of the situation described in the Non-Waivable Red List.”47

Thus, the IBA Guidelines provide some clear examples of what would rise to the level of “justifiable doubts.” The Non-Waivable Red List, mentioned above, contains situations that, depending on the specific facts, would be viewed as a conflict of interest by an objective third

41 _{See, UNCITRAL Arbitration Rules, Art 11-13; ICC Arbitration Rules Art 11. See also, Waincymer, supra}

note 22 at 310-311.

42 _{Waincymer, supra note 22 at 310-311.}

43 _{The IBA adopted its latest version on Guidelines on Conflicts of Interest in 2014. They have become}

widely accepted in the international legal community as a reflection of best practices when handling issues concerning an arbitrator’s impartiality and independence in international arbitration cases. The Guidelines are not, however, rule of law, and any challenges will remain subject to the lex arbitri and any institutional rules that may apply. The parties may, of course, agree to have the IBA Guidelines apply in their case. The Guidelines are otherwise a non-mandatory tool that parties and institutions may use to help reach a conclusion to a disclosure or challenge issue. See, Id. at 296. (Noting that the IBA Guidelines were drafted by prominent arbitrators from both common law and civil law jurisdictions, and they have even been recognized or mentioned in court proceedings in several jurisdictions around the world.)

44 _{IBA Guidelines General Standard 3(a)}

45 _{Id. at 3(d).}

46 _{UNCITRAL Arbitration Rules, Article 11.}

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12 party.48_{These included significant professional relationships between the party and the} arbitrator, a significant financial or personal interest in the party by the arbitrator, or where an arbitrator’s law firm routinely advises a party resulting in significant financial gain.49_The Guidelines, however, are not binding on the parties (or arbitrators) unless the parties agree to make them so.

Overall, disclosures can help identify any potential conflicts of interest that the arbitrator may have in relation to the case, although it is important to note that just because an arbitrator makes a disclosure does not mean it amounts to a conflict of interest or requires recusal; rather, disclosures are used to ensure that all involved parties are able to make informed decisions about arbitrator selection and any issues potentially involving independence and impartiality.50 This is one mechanism that is available in current practice that can be used to filter out arbitrators who may have a bias for or against one of the parties in a case.

Institutional rules often require arbitrators to make a declaration that they are, and will remain, independent and impartial, in addition to submitting a list of disclosures. In order for an arbitrator to be confirmed to serve on a panel with the ICDR, for example, he or she must declare that he or she is and will remain impartial and independent by complying with the “ICDR Rules, the Code of Ethics for Commercial Arbitrators, and [by disclosing] any fact or circumstance which might give rise to any ‘justifiable doubts as to the arbitrator’s impartiality or independence’.”51_{The ICDR also requires “freedom from bias and prejudice” and capacity}

48 _{IBA Guidelines Part II (2)}

49 _{IBA Guidelines Non-Waivable Red List, 1.1-1.4: “(1.1) There is an identity between a party and the}

arbitrator, or the arbitrator is a legal representative or employee of an entity that is a party in the arbitration. (1.2) The arbitrator is a manager, director or member of the supervisory board, or has a controlling influence on one of the parties or an entity that has a direct economic interest in the award to be rendered in the arbitration. (1.3) The arbitrator has a significant financial or personal interest in one of the parties, or the outcome of the case. (1.4) The arbitrator or his or her firm regularly advises the party, or an affiliate of the party, and the arbitrator or his or her firm derives significant financial income therefrom.”

50 _{General Standard 3: Disclosure by the Arbitrator, IBA Guidelines on Conflicts of Interest in International}

Arbitration, IBA Council (2014). Examples of disclosures that could affect independence or impartiality: LCIA Reference No. 97/X27, Decision Rendered 23 October 1997 (possibly working with a party’s counsel on another case in the past does not necessarily amount to lack of independence or impartiality).

See generally, Part II: Practical Application of the General Standards, IBA Guidelines on Conflicts of

Interest in International Arbitration, IBA Council (2014). See also, LCIA Reference No. UN3476, Decision Rendered 24 December 2004 (“The fact that a party was a former client of a law firm at which an arbitrator worked briefly, does not, of itself, constitute circumstances giving rise to doubts as to the impartiality of the arbitrator, who had severed all professional and personal ties with that party.)

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13 to be “thorough and impartial [in one’s] evaluation of testimony and other evidence.”52_The ICC also has a requirement that all arbitrators remain independent and impartial throughout the duration of the case, and the parties cannot waive adherence to this requirement.53_{Similar to} the ICDR, ICC arbitrators must complete a statement affirming that they are and will remain impartial and independent, as well as make any disclosures that might lead to conflicts of interest,54 and ICSID arbitrators must declare in writing before the first session that they are impartial and independent, and file relevant disclosures.55 Before the LCIA will appoint a party-nominated arbitrator to a case, he or she must provide a written statement of their qualifications and confirming compliance with the requirement of remaining impartial and independent during the proceedings,56 and UNCITRAL requires arbitrators to file a declaration that proclaims he or she is impartial and independent and that discloses all “past and present professional, business and other relationships with the parties and any other relevant circumstances.”57

Through the process of declarations and disclosure requirements, institutions have implemented a sort of gatekeeping mechanism that can prevent an arbitrator from being appointed to a case where a conflict of interest exists that may give rise to justifiable doubts about his impartiality, or potential bias towards a party. More can be done, though, to help protect against bias-induced partiality that may manifest in other forms.

What we do not find reflected in these rules are requirements such as diversity on panels, whether that be gender, race, or ethnicity, nor do we see criteria regarding cultural or educational backgrounds as it relates to those of the parties. Interestingly, nationality is a factor that has been considered by some institutions because it can create the appearance of bias that the arbitrators are acting in the interests of their home country, particularly in ICSID proceedings where a state or state entity is a party.58 The reason these factors are omitted may

52 _{ICDR Panel Application}

53 _{Arbitrator Appointment Procedures, supra note 34 at 22.} 54 _{Id. at 23.}

55 _{Reed et al., supra note 25 at 133-34; ICSID Arbitration Rule 6.}

56 _{Arbitrator Appointment Procedures, supra note 34 at 49; LCIA Rules Arts 5.3-5.5.}

57 _{UNCITRAL Arbitration Rules, Annex, Model statements of independence pursuant to article 11 of the}

Rules.

58 _{See, ICC Arbitration Rules, Art. 13 (“…the Court shall consider the prospective arbitrator’s nationality,}

residence and other relationships with the countries of which the parties or the other arbitrators are nationals...”); ICSID Arbitration Rules 1(3), 3(1)(a)(i), ICSID Convention Art. 39; Reed et al, supra note 25 at 131. See also, Waincymer, supra note 22 at 277.

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14 simply be that it is not feasible to have guidelines that take into account all possible variations of experience and backgrounds on a single panel. However, as we will see in the next section, these factors can be sources of unconscious bias, just like nationality, and perhaps the way nationality is addressed can be a source of inspiration for future guidelines to account for the fact that understanding background factors like cultural nuances and different languages can be assets, or even requirements,59 when dealing with legal disputes involving diverse parties.

3. BIAS AND DIVERSITY

3.1. What is bias?

The Oxford Dictionary defines bias as an “inclination or prejudice for or against one person or group, especially in a way considered to be unfair” or “a concentration on or interest in one particular area or subject.”60_{The term “bias” is frequently used to describe a negative social} phenomenon,61 often related to illegal or undesirable discrimination, such as racial bias or gender bias. This type of bias leads people to make unsubstantiated assumptions about other people’s characteristics or abilities based on an observed group trait,62 such as their gender, skin color, clothing, or even attractiveness.63 The origin of this tendency to make quick, unconscious judgements based on visible trains is rooted in evolutionary and developmental psychology. The mechanism of using heuristics, or mental shortcuts,64 allow humans to quickly evaluate their environment and react accordingly – for instance, running away from animals with large fangs in the wild without having to evaluate whether the animal is a predator and losing valuable seconds.65

Psychology shows us that these categorizations, or associations, based on observable physical traits, continue to persist in humans today, and can develop into stereotypes on a conscious

59 _{Fry J. & Greenberg S., The Arbitral Tribunal: Applications of Articles 7–12 of the ICC Rules in Recent}

Cases, ICC INTERNATIONAL COURT OF ARBITRATION BULLETIN 20, no. 2 (2009) at 22.

60 _{OXFORD DICTIONARY ONLINE,}_{https://en.oxforddictionaries.com/definition/bias}

61 _{Holroyd J., et al., What is implicit bias? Philosophy Compass Vol 12, Issue 10, (6 Oct. 2017), § 5.1;}

Sussman, supra note 7 at 46.

62 _{Holroyd et al., supra note 61.}

63 _{Examples include: “elementary school teachers rate more physically attractive children as having more}

intelligence and greater academic potential. More attractive defendants have lower bail set in misdemeanor cases, and if they are convicted, they receive lighter prison sentences.” Smith E. R., Mackie, D. M., & Claypool H. M., SOCIAL PSYCHOLOGY: 4D ED. (Psychology Press 2015) at 58.

64 _{Heuristics are mental shortcuts that allow people to make decisions and react to situations more quickly}

and efficiently. See Sussman, supra note 7 at 53.

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15 level.66_{While humans no longer need to escape wild predators on a daily basis, we do need to} avoid other modern era dangers, such as traffic, a hot stovetop, or foods that make us ill. A mental shortcut that serves to protect humans in the wild environment makes sense from a psychology standpoint, but when the phenomenon causes undesirable behaviors, such as racism, it can interfere with societal functioning and, further, with the fairness and impartiality of the judicial system that legal professionals hold in high regard.67

When individuals show overt prejudice,68 people can identify the behavior and take steps to avoid it, correct it, or punish it. In the legal field, racist or sexist incidents can lead to disciplinary action,69 or even public shaming.70 In arbitration, the concern is that bias can affect the fairness of proceedings or lead to faulty decision making. Arbitrators and judges interpret the evidence they receive through a lens shaded by their background, experience, and personal biases,71 and they are not immune from the effects of unconscious bias.72 If their judgments are made under the influence of an unconscious bias towards one party, it threatens the impartiality and fairness of the system as a whole.

66 _{Wheeler R., We All Do It: Unconscious Behavior, Bias, and Diversity, 107 LAW LIBRARY JOURNAL 325}

(2015) at 327.

67 _{For example, stereotypes can affect what facts people recall after the presentation of evidence. Jurors}

more easily recalled case facts associated with aggression when the subject was African-American. See Levinson J.D. & Young D., Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of

Ambiguous Evidence, 112 W Va L. Rev. 307, 350 (2010); Levinson J.D., et al., Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, 69 Florida Law Review 1 (Jan. 2017), 63.

68 _{See, Holroyd, et al., supra note 61 (distinguishing implicit/unconscious from explicit/conscious mental}

processes).

69 _{See e.g., Debra Cassens Weiss, Lawyer is suspended partly for his ‘racist, sexist, homophobic and}

offensive’ language, ABA Journal, 30 July 2015.

70 _{See e.g., Jessica Levinson, Can New York lawyer Aaron Schlossberg be disbarred for his racist rant?,}

NBC News, 21 May 2018 (noting Yelp reviews and court complaints filed due to the attorney’s actions).

71 _{See, Sussman, supra note 7 at 63-64 (“Arbitrators like all people have their own cultural and legal}

backgrounds and their own experiences and predilections which that bring to arbitration. These predispositions form attitudinal blinders which can influence decision-making…As these studies demonstrate attitudinal predilections may actually unconsciously close the mind to anything at variance with an already held belief or tilt the decision towards a sympathetic outcome for an affinity group.”)

72 _{See, Kang J., et al., Implicit Bias in the Courtroom, 59}_UCLA_{LAW REVIEW 1124 (2012), 1146-1148}

(describing results of Implicit Association Test given to judges showing that implicit bias can impact judicial behavior); Luttrell S., Chapter: Causes and Cures, Bias Challenges in International Commercial

Arbitration: The Need for a “Real Danger” Test, 20 INTERNATIONAL ARBITRATION LAW LIBRARY 249 (Kluwer Law International 2009) at 264-265; Puig & Strezhnev, supra note 35 at 11-14; Puig, Blinding,

supra note 8 at 15 (“judges are subject to various cognitive biases extensively documented in the social

sciences.”), citing to D. Michael Risinger., Michael J. Saks, William C. Thompson & Robert Rosenthal,

The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 CALIF. L. REV. 1 (2002). See also, Sussman, supra note 7 at 46 (“…ultimately, decisions are made by judges and arbitrators who are human beings. Their minds function anatomically just as do the minds of others. Legal training cannot and does not alter that fundamental reality.”)

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16 3.2. Unconscious Bias

To begin, a distinction ought to be made between conscious bias and implicit or unconscious bias.73 Conscious bias can be discriminatory or it can reflect a mere preference, but people are generally aware that they have the bias. When concrete evidence of bias exists, such as comments made during a hearing or documentation showing bias, it can amount to proof of actual bias.74 Actual bias “is usually determined by referring to the conduct, words spoken or written or even by gestures.”75 When the actual, or conscious, bias is discriminatory, it can be addressed directly in the legal field through enforcement of anti-discrimination laws that directly target the undesirable behavior.76

Unconscious bias, on the other hand, can be defined as “attitudes or stereotypes that affect our understanding, decision-making, and behavior, without our even realizing it.”77 It is generally an automatic process that happens without our knowing, and these unconscious psychological influences can lead to faulty decision making.78 This is introduced into the arbitration context due to the various actors in the process (attorneys, witnesses, experts, co-arbitrators etc.), and an arbitrator’s unconscious bias can influence how he or she perceives evidence, expert and witness testimony, or an attorney’s case presentation.79_{Unlike conscious bias, it is difficult to} address unconscious bias through laws because the process is internal and difficult to show in a causal, evidence-based way. Despite this, it has been shown that unconscious bias impacts the decision-making process of arbitrators and, therefore, the outcome of disputes, so it is important to examine how it happens and ways to reduce the negative impact in order to preserve fairness and impartiality. Several examples of unconscious bias are discussed below to demonstrate how this works and how it can impact arbitration.

73 _{See, Kang, supra note 72 at 1132-1135 (explaining the difference between explicit, implicit, and}

concealed bias).

74 _{Chatterjee C., The Effect of Apparent Bias or Suspicion of Bias or Unconscious Bias may not necessarily}

be different from that of Actual Bias – An English Perspective, THE JOURNAL OF WORLD INVESTMENT & TRADE 13 (2012) 997-1013.

75 _{Id. at 1004.}

76 _{See e.g., Title VII of the Civil Rights Act of 1964; Americans with Disabilities Act; Article 14 of the}

European Convention on Human Rights.

77 _{Kang, supra note 72 at 1126.}

78 _{See, Sussman, supra note 7 at 46-49.}

79 _{See, Kang, supra note 72 at 1126; Puig & Strezhnev, supra note 35 at 12-13, referencing Robertson, C.T.,}

Blind Expertise, NEW YORK UNIVERSITY LAW REVIEW (2010) 85, 175-257. See also, Franck, supra note 6 at 7-11.

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17 3.2.1. Anchoring

One common way unconscious bias occurs in arbitration is through anchoring.80 In the context of damage calculations, for instance, anchoring can occur based on the first requested damage amount. The cognitive bias effect causes people to attach to the first number as a baseline for future judgments.81 When the initial demanded amount is a large number, the amount awarded is higher than if the initial amount was small. Sussman notes that even “completely irrelevant numbers, or numbers which cannot be rationally justified, unconsciously move the decision maker’s thinking in the direction of that number.”82_{This is generally not a controversial} manifestation of unconscious bias, but it can inform the way attorneys present a request for damages and would be useful for arbitrators to consider when crafting an award to ensure any amounts awarded are fair.

3.2.2. Affiliation Bias

Affiliation bias is something that has been facing increased scrutiny recently in the arbitration community, particularly with regard to negatively impacting the impartiality of party-appointed arbitrators.83 As mentioned above, there is concern that party-appointed arbitrators will unconsciously favor the appointing party in a case, despite intentions of remaining impartial.84 Indeed, there are studies showing that dissenting opinions are most often written by an arbitrator appointed by the “losing” party.85_{In a study conducted by Puig and Strezhnev testing the} affiliation effect for party-appointed arbitrators, a statistically significant affiliation bias was found.86 The affiliation bias effect was not such that it overrode the arbitrator’s ability to evaluate a case entirely, but “when room for discretion [arose], [arbitrators] appear to be more likely to choose outcomes that are more favorable to the side that appointed them.”87

80 _{Unconscious biases are also called “cognitive blinders,” which are “patterns of deviation in judgment}

which can lead to perceptual distortion, inaccurate judgment or illogical interpretation.” Sussman, supra note 7 at 53, 54-56; Kang, supra note 72 at 1128.

82 _{Sussman, supra note 7 at 55.}

83 _{Puig & Strezhnev, supra note 35 at 2-3.}

84 _{See, Paulsson, supra note 35 at 5-8 (describing some instances of party favoritism); Puig & Strezhnev,}

supra note 35 at 2-3, 13-14. See also, Loewen Group, Inc. v. United States, ICSID Case No.

ARB(AF)/98/3, 42 ILM 811 (2003) (arbitrator was pressured by appointing party and thereafter engaged in bargaining with co-panelists. This was less unconscious than conscious, but shows the effect.)

85 _{Paulsson, supra note 35 at 8-9; See also, Puig & Strezhnev, supra note 35 at 8.} 86 _{Puig & Strezhnev, supra note 35 at 22.}

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18 3.2.3. Stereotypes

Stereotypes are another type of unconscious bias that involves “an association between a concept [such as a social group – race, gender, nationality, etc] and a trait.”88 For example, a stereotype could be that African Americans are good at sports, Asians are intelligent, or Germans are strict. Even when these stereotypes are implicit, they can affect an adjudicator’s decision-making just as any other unconscious bias.89 This can be related also to an “attitudinal blinder” that is based on an arbitrator’s culture or nationality,90_{education background, or even} political affiliation.91 Parties may decide to exclude people of the same nationality as one of the parties in order to avoid appearance of bias due to allegations of acting in the interest of their home country or risk of undue influence from a government.92 Some institutional rules, such as the LCIA Rules provide that the arbitrators should not be of the same nationality as any one of the parties, unless the parties expressly permit it.93_{The ICSID Rules also state that unless the} parties agree otherwise, there cannot be a majority of panelists of the nationality of one of the parties; for three-member panels, unless agreed otherwise, a party may not appoint an arbitrator of its own nationality.94 An arbitrator can be shaped by the ideologies of his home country or social upbringing.95

3.2.4. Attitudinal Bias

When arbitrators have tendencies or preferences based on their background, it can cause them to unconsciously discount information presented that is inconsistent with those beliefs or place more emphasis on conditions that are consistent with those beliefs when making a decision.96

88 _{Kang, supra note 72 at 1128-1129; Anthony G. Greenwald & Linda Hamilton Kreiger. Implicit Bias:}

Scientific Foundations, 94 Calif. Law Review 945 (2006).

90 _{Arbitrators’ cultural backgrounds can also affect how arbitrators process arguments and their views on}

what constitutes a strong, more convincing argument versus a weaker, unconvincing argument. See, Hornikx J., Chapter 4: Cultural Differences in Perceptions of Strong and Weak Arguments for an analysis of this effect.

91 _{Sussman, supra note 7 at 63-69.}

92 _{See generally, Waincymer, supra note 22 at 259-260.}

93 _{The LCIA Rules discuss the nationality of a sole arbitrator or the chairperson of a three-member panel}

when the parties are of different nationalities. The Rules provide that the arbitrator “shall not have the same nationality as any party unless the parties who are not the same nationality as the arbitral candidate all agree in writing otherwise.” Arbitrator Appointment Procedures, supra note 34 at 51; LCIA Rules Art 6.1.

94 _{Reed et al, supra note 25 at 131; ICSID Arbitration Rule 1(3)}

95 _{Lalive, supra note 2 at 27.}

96 _{Id. at 27-28; Sussman, supra note 7 at 64; Luttrell, supra note 72 at 264-265. See generally, Flader &}

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19 This can manifest when the parties, attorneys, or witnesses exhibit cultural differences, speaking styles, or case presentation styles that are different from the arbitrator’s background or familiarity.97_{It can also manifest itself through culture-specific non-verbal cues that are} processed on an unconscious automatic level, but may impact trustworthiness.98 Sussman describes how this can occur through various “effects”:

“The ‘affinity effect’ occurs when ‘decision-makers are influenced by their cultural backgrounds, their prior experiences, and their personal associations in formulating their understanding of an judging the behavior they must consider in reaching their decisions99…the ‘expectancy effect’ causes ‘ beliefs about the world and preconceived notions about the likely credibility of particular types of witnesses to affect how decision-makers evaluate evidence’ and causes decision-makers to be more ‘likely to reject information that is inconsistent with their beliefs and expectations.’100_{Yet, people feel that they are}

free of prejudice or bias, the illusion of objectivity.”101

As mentioned above, critics of party-appointed arbitrators recognize that an arbitrator may be predisposed to side with the appointing party, regardless of his or her intentions to remain impartial.102 “Perceptions of other people begin with visible cues, including physical appearance, nonverbal communication, the environments they create and occupy, and overt behavior.”103 When visible traits and non-verbal cues are interpreted in accordance with unconscious bias, it can lead to an arbitrator making inferences about a person or issues in a case that may not directly correspond to the evidence. In order to ensure that all evidence and

Preliminary Findings of a Research Project with a Qualitative Approach, in Tony Cole, THE ROLES OF PSYCHOLOGY IN INTERNATIONAL ARBITRATION, (Kluwer Law International 2017), 267-298.

97 _{Sussman, supra note 7 at 64-66.}

98 _{“In individualist cultures like the United States, we like people who orient their bodies toward us—facing}

us directly, leaning toward us, nodding while we speak—and we believe that they like us…In such diverse cultures as those of Germany, Hong Kong, Japan, Turkey, and the United States, people express sadness and happiness, fear and anger, surprise and disgust with similar bodily postures and facial expressions… other findings show that despite some general agreement, interpretations of emotional expressions often differ between cultures, particularly for the emotions of surprise, sadness, and disgust.” “A North American might decide that this kind of behavior signals insincerity, but in Japan the same behavior, agreeing with criticism, is regarded as simple politeness. As this example suggests, members of different cultures have different associations and therefore arrive at different interpretations for the same behavior.” Smith, supra note 63 at 64.

99 _{Sussman, supra note 7 at 65, quoting Diamond S.S., Psychological Aspects of Dispute Resolution: Issue}

for International Arbitration, in International Commercial Arbitration: Important Contemporary Questions, ICCA CONGRESS SERIES, NO. 11 (Albert Jan van den Berg ed., 2003), 336-337.

100 _{Sussman, supra note 7 at 65.}

101 _{Sussman, supra note 7 at 65, referencing Banaji M.R., et al., How (Un)ethical Are You?, HARVARD}

BUSINESS REVIEW 3 (Dec. 2003).

102 _{Puig, Blinding, supra note 8 at 16, citing Donahey M.S., The Independence and Neutrality of Arbitrators,}

J. INT'L ARB. 41 (Dec. 1992) (explaining that in "international arbitration, a party [appointed] arbitrator may be predisposed to his appointing party's position, but must … render his decision in good faith and [in] an independent manner").

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20 testimony is evaluated fairly, arbitrators should be mindful of cultural differences and how their own experiences and predispositions may impact their perceptions.

3.3. Diversity in the Legal Industry and International Arbitration

Like other industries, the legal field has been influenced by bias and history’s lack of acceptance of women and minorities into the workplace, and attention has recently been focused on gender diversity issues in law firms and in arbitration.104As a starting point, Harvard Law School did not begin admitting women to its program until 1950.105 Since the 1950s, access issues based on gender differences have improved in studying law, though disparities still exist in top positions at law firms and judicial or arbitral appointments.106 In the United States, 2016 marked a year where the number of women in law school was greater than the number of men for the first time.107 However, disparities exist as women continue their careers after law school. The 2017 report on women in the legal profession conducted by the American Bar Association shows that in private practice females represent 48.7% of summer associates and 45% of associates at law firms.108 After that point, attrition begins and the statistic for women in equity partner positions is only 18%.109

Additionally, women only make up 27.1% of federal and state judicial positions in the United States.110_{Even at top-level positions, there is disparity in compensation with recent reports} showing that men are paid an average of 33.2% more than women in the same positions.111 A report by the Council of Europe shows low numbers of female judges in the United Kingdom and other European countries, as well.112 For instance, in England and Wales, women make up

104 _{See, e.g., Greenwood L., Women in disputes: what can be done about the leaky pipeline?, C}_OMMERCIAL

DISPUTE RESOLUTION (6 Nov 2017); Commentary to the Pledge, EQUAL REPRESENTATION IN

ARBITRATION, available at http://www.arbitrationpledge.com/about-the-pledge; Zillman C., Law Firms’

Gender Diversity Programs Aren’t Keeping Women in the Industry, FORTUNE (19 April 2017).

105 _{Harvard celebrates 60 years of women at the law school, H}_{ARVARD LAW TODAY (26 Sept. 2013).} 106 _{There are many theories and studies about what contributes to the complex issue of access issues due to}

gender, race, and other “categories” of persons. The exploration of these important discussions is beyond the scope of this paper.

107 _{Olson E., Women Make Up Majority of U.S. Law Students for the First Time, THE NEW YORK TIMES (16}

Dec. 2016).

108 _{A Current Glance at Women in the Law 2017, S}_{TATISTICS FROM THE}_{ABA COMMISSION ON}_WOMEN

(2018) (hereinafter “ABA Commission Report”).

109 _{Id. at 3.} 110 _{Id. at 5.}

111 _{Rubino K., MORE}_BIGLAW_FIRMS_REVEAL_THEIR_OWN_GENDER_PAY_{GAP, ABOVETHELAW.COM (30}

March 2018).

112 _{European judicial systems – Efficiency and quality of justice, CEPEJ Studies No. 23, C}_{OUNCIL OF EUROPE}

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21 30% of total professional judges.113_{Overall, Europe is doing better than the United States with} an average of 51% of professional judges being women, however, there are still averages of females making up only 33% of court president positions114_{and 35% of judges at the supreme} court level.115

In the context of international arbitration, this serves as a demonstrative figure for why there is a smaller pool of available female arbitrators, as arbitrators have generally gained a certain number of years and expertise in their field before being appointed to cases. Similarly, we see smaller pools of available minority group arbitrators and those are from regions outside of Western Europe and the United States (the so-called Non-Anglo-European areas).116 In ICSID arbitration, for example, arbitrators are still predominantly male.117 The number of appointments of female arbitrators is approximately 11%, and of those 11%, 62% of the cases go to one of two prominent female arbitrators.118 A further disappointing statistic is that only three ICSID appointments between 2012-2017 were to non-white female arbitrators from developing countries.119 Unfortunately, this is not an anomaly. Arbitrators generally have similar characteristics across several variables such as gender, nationality, education, and employment background, and they tend to be male, from Western cultural backgrounds, and have elite educational backgrounds.120

113 _{Id. at 101.} 114 _{Id. at 103.}

115 _{The many reasons why these gaps exist are beyond the scope of this paper, but they include such things}

as “discrimination in hiring and pay decisions, working in different industries and different jobs…, disproportionate share of unpaid caring and domestic work, lack of workplace flexibility…, time out of the workforce impacting career progression and opportunities.” See, What is the gender pay gap?,

WORKPLACE GENDER EQUALITY AGENCY, (Commonwealth Government of Australia 2018). See also,

Graf N., et al., The narrowing, but persistent gender gap in pay, PEW RESEARCH CENTER, 9 April 2018.

116 _{Dolinar-Hikawa C., Beyond the Pale: A Proposal to Promote Ethnic Diversity Among International}

Arbitrators, TRANSNATIONAL DISPUTE MANAGEMENT ,Vol. 12 Issue 4 (July 2015) at 6.

117 _{Puig & Strezhnev, supra note 35 at 34.}

118 _{See, Karton J. & Polonskaya K., True Diversity is Intersectional: Escaping the One-Dimensional}

Discourse on Arbitrator Diversity, KLUWER ARBITRATION BLOG (10 July 2018). (There were 951 appointments between 2012-2017. Of those, 106 were female arbitrators and only 38 were to female arbitrators other than Brigitte Stern or Gabrielle Kaufman-Kohler.)

119 _Id.

120 _{Puig S., Network Analysis and the Sociology of International Law, Arizona Legal Studies Discussion}

Paper No. 18-06, (Feb. 2018) at 11 (hereinafter, “Puig, Network Analysis”); Puig, Blinding, supra note 8 at 11 (“a small network of self-regulated professionals with uniform backgrounds appointed by the parties decide most [ISDS] cases”); Karton & Polonskaya, supra note 118.

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22 Having this limited, interconnected group of arbitrators deciding the majority of disputes can have an insulating effect where there is little exposure to outside groups or opinions.121_Sergio Puig writes that “[t]his phenomenon may have important effects on legal outcomes – for instance, by limiting dissent or exacerbating some cultural (or epistemic) biases.”122 To the extent that this group of arbitrators receives multiple repeat appointments, it can lead to more conflicts-of-interest and more insular decision making. While arbitrators with a certain educational background and socio-economic status may project an air of professional competence,123 it can limit the ability of panels to understand issues that may arise in a case related to cultural nuances or gender-related issues if they haven’t been exposed to them in their life or work previously. For instance, Sergio Puig writes that “many important academics agree that [investor-state dispute settlement] places important decisions within the control of super-elite, like-minded, male lawyers with strong pro-capitalist views who operate largely outside of the local political process or real investment decisions.”124

One can imagine that when faced with a choice of appointing an arbitrator, parties will select prominent, well-known and respected, experienced adjudicators. And this can be particularly true when selecting a sole arbitrator.125 Still, many parties prefer to have a three-person panel in order to preserve having more control over appointment of an arbitrator or to have experts in different aspects of the case, not only in industry aspects, but also in factors such as nationality or legal training.126_{Additionally, three-person tribunals allow for different perspectives to be} brought to light when the arbitrators are deliberating, particularly when technical expertise is required to understand a nuanced case, or even allows for raising an element that another arbitrator missed during the case presentation. Waincymer writes that “advantages of a panel of three arbitrators include: …the balancing and exchange of different views in deliberation (and this testing of views means the ‘quality of justice’ is likely to be improved); a wider range

121 _{Puig, Network Analysis, supra note 120 at 11.}

122 _Id. 123 _{Id. at 12}

124 _{Puig, Blinding, supra note 8 at 655.}

125 _{See, Born, Selection, supra note 23 at 1669}

126 _{See, Born, Selection, supra note 23 at 1669-70: “Equally, in international cases, a three-person tribunal}

permits a mix of arbitrators with diverse national, legal and linguistic backgrounds. Again, this is consistent with the aspirations of the international arbitral process to provide an internationally neutral dispute resolution mechanism, with a tribunal capable of understanding both parties’ procedural and other submissions.”

How is Unconscious Bias Affecting the Impartiality and Independence of Arbitral Tribunals and How Can It Be Addressed?