The European Commission has responded to the January 2020 "CETA - Where are the Women" submissions made by Dr. Katherine Simpson in response to the under-appointment of women to the List of Arbitrators under Article 29 of the Comprehensive Economic and Trade Agreement ("CETA") between Canada, the European Union and its Member States.
The European Commission's response stated:
“Your letter has received the full attention of the President and Commissioner Hogan, and reflections are currently ongoing on how best to promote gender balance both in the drawing of the list of arbitrators as well as in composing an arbitration panel in a specific case. Under Article 29.8.1 the CETA Joint Committee may review the list of arbitrators at any time. The said reflection will be completed shortly and you will be kept informed of developments in this regard.”
The European Commission's response, arriving less than 90 days following the "CETA - Where are the Women" submissions was, said Dr. Simpson, well received. Treaty based lists of arbitrators, like the CETA List, serve as a public verification of the listed person's credentials, and these appear to be backed by public accountability. Owing to the credence legal markets pay to these lists, gender parity in treaty-based lists of arbitrators could be a significant step toward achieving gender parity in international dispute resolution professions.
Dr. Simpson noted that open calls for applications could be helpful in eliminating gender bias in arbitrator appointments. The CETA List was unbalanced because the EU relied on prior treaty rosters and Member State recommendations (rather than new applications) to create it. In these prior rosters, however, women accounted for only 12.9% of all EU arbitrator appointments (only 10.6% since 2015). Two-thirds of the EU’s arbitrator rosters have had no women. Open invitations for applications, like the one recently issued by the United Kingdom Trade Office for Appointments to ICSID panels, can help ensure that all qualified people have the opportunity to compete and be considered for these roles.
Dr. Simpson believes that an open and competitive application procedure, similar to what is recognized as a best practice for hiring and even procurement, would lead to a roster where men and women are represented in equal numbers and the ethnic composition of the relevant states would be reflected. This is entirely within reach, and there is every reason to believe that the CETA Joint Committee will create a balanced roster, without removing any currently listed individual. Already yesterday, the Council of the EU issued a draft decision where the importance of gender equality in appointments to the CETA Appellate Tribunal was referenced.