Response by the European Commission on “CETA Arbitrator Roster – Where Are the Women?”

10 May, 2020

Readers may recall our interview of ArbitralWomen member Dr. Katherine Simpson who, in January 2020, called on the Parties to the Comprehensive Economic and Trade Agreement between Canada, the European Union and its Member States (CETA) to remedy the serious under-representation of women in the agreed roster of arbitrators for dispute settlement under Article 29 of the CETA (“CETA List”).

The interview of Simpson entitled, “CETA List of Arbitrators – Where are the Women?” was first published in January 2020 by ArbitralWomen on our News Page. Thereafter, ArbitralWomen published an updated interview of Simpson in our recent Newsletter (April 2020, Issue No. 39) that can be accessed here (see Simpson interview on pages 4 to 8).

In response to the underrepresentation of women on the CETA List (where 50% of the Canadian, 20% of the EU, and 0% of the Chairperson roster nominees were female), Simpson provided the Treaty Parties the professional credentials of 70 women with specialised knowledge of international trade law whose skills and qualifications matched at least one person nominated to the CETA List.  Her substantial research demonstrated what many already know to be true:  there is no shortage of qualified women in international trade law or in international dispute resolution.  Simpson also pointed out that there are no legal barriers preventing the Parties from remedying the gender imbalance because Article 29 of the CETA sets fifteen (15) as a minimum number of roster members and the list can be amended at any time. Simpson proposed that the CETA Joint Committee add additional female roster members until gender parity is achieved.

ArbitralWomen very recently learned that by letter dated 24 April 2020, the European Commission responded to Simpson’s CETA List submissions and that the European Commission has given permission for its response letter, which is available on Simpson’s website, to be shared publicly.

Response by the European Commission on “CETA Arbitrator Roster – Where Are the Women?”The European Commission’s response letter states, in part:

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. … The said reflection will be completed shortly and you will be kept informed of developments in this regard.

ArbitralWomen welcomes the European Commission’s willingness to reflect on how best to promote gender balance in both the CETA List generally and in composing arbitral tribunals in specific cases.

Simpson’s advocacy and persistence is an excellent example of what can be achieved when you “Walk the Talk” as discussed in the recent article by ArbitralWomen’s co-founder Mirèze Philippe, reported on our News Page here.

As Simpson discussed in her interview with ArbitralWomen (available here in our recent Newsletter at pages 4 to 8), 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.  Moving toward gender parity in all dispute resolution arbitrator rosters will be a significant step toward achieving gender parity in international dispute resolution generally.

There now is reason to believe that the CETA Joint Committee will create a balanced roster.  In the response, the European Commission also stated in its response that, “under Article 29.8.1, the CETA Joint Committee may review the list of arbitrators at any time.” Already beginning to “walk the talk”, Simpson has advised ArbitralWomen that a draft decision of the CETA Joint Committee setting out the administrative and organisational matters regarding the functioning of the Appellate Tribunal envisioned in the CETA, published on 7 May 2020, refers to the importance of making appointments with a view toward gender equality.  With Simpson’s list of 70 women with specialised knowledge of international trade law, Simpson urges that the CETA Joint Committee should have no difficulty identifying women for these roles.

We are pleased to share this good news and congratulate Katherine Simpson on her work to highlight the gender diversity issues with respect to the CETA List.