Symposium by GQUAL on CEDAW’s GR40: A Catalyst for Gender Equality in International Investment Arbitration

[Mairée Uran Bidegain is an independent arbitrator and recognized expert in international investment law and dispute resolution]

The adoption of CEDAW’s General Recommendation 40 on the equal and inclusive representation of women in decision-making systems (“GR40” or the “Recommendation”) marks a transformative step toward gender parity in international governance and adjudicatory bodies. Rooted in the principles of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), GR40 sets forth a clear standard: women’s equal participation is not merely an aspiration but a fundamental necessity for ensuring fairness, legitimacy, and accountability in decision-making. 

While GR40 primarily addresses States, its implications extend beyond the political and diplomatic spheres to sectors where legal and economic decisions have global ramifications—including international arbitration. As a key forum for resolving high-stakes investment and commercial disputes, arbitration continues to suffer from a persistent gender imbalance that undermines both its legitimacy and effectiveness. 

The Recommendation provides a clear and compelling mandate for States to address this imbalance, by providing a robust framework for advancing parity in international adjudicatory bodies. GR40 underscores that achieving parity is not merely a long-term goal—it is an urgent priority that must be met through concrete policy reforms. In the arbitration sphere, this means reevaluating and reforming the processes by which arbitrators are nominated and appointed. 

This article explores the current state of gender representation in investment arbitration in light of GR40´s principles and recommendations and explores actionable steps for their implementation. 

Gender Representation in Investment Arbitration: Persistent Challenges and Slow Progress 

Despite efforts toward inclusivity, gender parity in international arbitration remains elusive. Data from the 2024 statistics of the International Centre for Settlement of Investment Disputes (ICSID) and ICSID´s 2024 Annual Report underscores this disparity.  

• Overall, women account for only 15% of all arbitrator appointments in ICSID cases to date. 

• In FY2024, this figure improved to 29%—a positive trend, but still leaving women absent from at least two-thirds of tribunals. The disparity is even more striking when examining appointment trends by different stakeholders. Claimants appointed only 9% of female arbitrators, while Respondent States appointed 24%.  

These numbers are echoed by the ICCA Report on Gender Diversity in Arbitration, which found that women accounted for just over 21% of global arbitral appointments. While there has been incremental progress, these figures fall far short of the standard set by GR40 in paragraph 2 which defines equal and inclusive representation as “fifty-fifty parity between women and men in all their diversity in terms of equal access to and equal power within decision-making systems.” As mentioned in several studies (see e.g, here and here) the systemic barriers preventing greater gender balance in arbitration are not due to a lack of qualified female arbitrators. Instead, they result from entrenched biases in appointment procedures where States play a critical role. States appoint one tribunal member, participate in selecting the presiding arbitrator, and shape the constitution process of ISDS tribunals through their treaties and specific cases. 

It is in this sense that GR 40 could act as an important catalyst for change, directing specific State action to address the imbalance in arbitrator selection and appointment processes. 

The Broader Implications of Gender Parity: Why Representation Matters  

As GR40 underscores, women’s equal representation is not merely a question of fairness.  It is essential for the credibility, legitimacy and efficacy of decision-making bodies. This is particularly relevant in investment arbitration for the following reasons: 

• Research shows that gender-diverse decision-making bodies produce better-reasoned decisions and balanced outcomes. In investment arbitration, where disputes often involve complex regulatory frameworks, sensitive public policy objectives, and high-stakes economic interests, diversity among arbitrators can enhance the tribunal’s ability to weigh competing interests fairly and thoughtfully, and to consider the broader implications of their decisions. 

• Ensuring gender balance in arbitral tribunals not only enhances the quality of the outcomes but also bolsters public confidence in the integrity of dispute resolution systems. GR40 makes an explicit connection between gender equality and institutional legitimacy, emphasizing that underrepresentation in adjudicatory bodies undermines both the perceived and actual fairness of decision-making processes.  

Given the increasing scrutiny that investment arbitration faces, particularly in light of concerns that ISDS mechanisms may stymie climate action and regulatory sovereignty, ensuring gender-diverse tribunals can help reinforce the legitimacy of investor-State dispute settlement. Tribunals that reflect a broader cross-section of society are more likely to inspire trust, credibility, and stakeholder confidence in the system. 

Bringing GR40 into Investment Arbitration: Practical Steps for Implementation  

States’ Actions to Implement Institutional Reform  

GR40, paragraph 57, calls on States to adopt measures ensuring gender equality in nominations, appointments, and the composition of decision-making bodies at the global level, including in international arbitration. This provides a mandate for reevaluating and reforming the processes by which arbitrators are nominated and appointed in ISDS. In line with GR 40 paragraph 70(a), States should adopt national action plans on parity in international investment tribunals by 2030 incorporating concrete steps such as: 

• Ensuring gender-balanced rosters for international appointments.  States should commit to gender-balanced nomination procedures for ICSID’s Panel of Arbitrators and Conciliators and the arbitrators’ lists maintained by other institutions, such as the Permanent Court of Arbitration. Encouragingly, some have taken proactive measures—Colombia, for example, appointed an all-female list to its ICSID Panel in 2024. Such initiatives illustrate how deliberate policies can drive systemic change in alignment with GR40’s objectives. In leading by example, Staes can influence broader reforms. 

• Embedding GR40 Principles in International Investment Treaties. Research shows that women are more likely to be appointed through formalized selection procedures.  Accordingly, States should integrate gender-balance requirements into bilateral and multilateral investment treaties, ensuring open, transparent and formal arbitrator selection processes. This could include appointing tribunal members exclusively from gender-balanced rosters on a 50/50 basis selected by States. 

• Commitments as Respondents in ISDS Case. As respondents in all investment disputes, States should guarantee equal representation in arbitrator appointments on an annual or bi-annual basis through legislative or regulatory measures. Moreover, GR explicitly highlights the importance of adopting proactive measures to ensure that women are not just nominally included but meaningfully represented. In arbitration, this means avoiding the pattern where women are limited to a single seat in three-member tribunals. Since tribunal presidents draft the final award, States should also track and encourage the appointment of women to presiding roles. 

The Role of Non-State Actors in Advancing Transparency and Accountability 

One of GR40’s most actionable recommendations is the establishment of accountability mechanisms, as set forth in paragraph 57(b). Arbitral institutions have an important role to play in this regard by: 

• Adopting clear, transparent and publicized gender parity policies. Institutions, whose governance bodies include States, must adopt, publicize and enforce diversity criteria in selection frameworks to ensure women’s inclusion in tribunals and annulment committees. Achieving true parity requires that many three-member tribunals appoint at least two women, rather than defaulting to a single female arbitrator. 

• Committing to publishing gender-disaggregated data on appointments. Many now track gender representation—ICSID, for instance, includes a dedicated section in its quarterly statistics. Other institutions should follow suit. Transparency not only fosters accountability but also demonstrates commitment to gender equality. 

Corporate stakeholders and law firms have a critical role to play (see GR 40, paragraphs 63-66).  

• Law firms, as gatekeepers of arbitrator selection, should adopt internal policies mandating diverse candidate lists and educate clients on the importance of gender representation in dispute resolution.  

• Similarly, corporations involved in ISDS should incorporate gender parity into their arbitrator selection criteria, increasing demand for more balanced tribunals.  

Conclusion 

While progress has been made to achieve gender-balance in the composition of arbitral tribunals in investment arbitration, further action is needed to move beyond aspirational targets toward enforceable commitments. The goal must be to transition from incremental progress to systemic change, ensuring that gender diversity becomes the norm rather than the exception. 

CEDAW’s General Recommendation 40 offers a transformative vision for gender equality in decision-making processes. Its principles resonate strongly in the field of international arbitration, where diversity is essential for legitimacy, fairness, and effectiveness.  

The adoption of GR40 marks a pivotal moment in the movement for gender equality in international law. It provides a mandate for addressing gender disparities in international dispute resolution, offering a framework for advancing parity in arbitral tribunals.  

Gender equality in investment arbitration is not just a matter of principle; it is a practical necessity for ensuring that the field reflects the diversity and dynamism of the global community it serves. Its adoption is a call to action for States to address systemic inequities and foster a more inclusive arbitral community, where diversity is not an aspiration but a reality.