Author: Nathan Gayer de Mena
As the “oldest method for the peaceful settlement of international disputes,” arbitration has been practiced as a form of dispute resolution for over three millennia. All too often, however, women have been excluded from participating in arbitral processes on equal terms with men. Historical regimes across Europe have long had a “special interest in excluding women from the exercise of official power” and from “perform[ing] legal functions” as arbitrators or as disputants. This note’s objective is to explore female involvement in arbitration in Greek, Roman and Egyptian antiquity. Despite significant barriers to participation, throughout all three civilizations studied in this note, women played a tangible role in arbitration. Given the scarcity of sources on this topic, this note focuses on a broad time frame, spanning from the time of Homer (8th century BC) to Justinian (6th century AD).The reality of long-standing female exclusion from arbitration provides a central justification for historical analysis. It is valuable, first because it enables us to place current approaches in context, furthering our understanding of how the discipline of arbitration has developed into its present form. Moreover, this knowledge may help provide solutions to modern problems, and nurture debates on how arbitration ought to develop in the future. A final function of historical analysis informs this note’s thesis: the past often fulfills a cautionary function, informing us of what practices to avoid, and of the importance of cultivating inclusion, where all are allowed to participate fully in arbitration. By looking to the past, we realize how far we have come, but also how much further we have yet to go.
This topic has immense contemporary relevance since the struggle for gender equality in arbitration is a continuing one. Empirical studies show that the profession remains dominated by men: 93% of all appointments made in proceedings under ICSID between 1972 and February 2014, for instance, were of male arbitrators, and, of the women selected, two held 75% of all female appointments. The proportion of male to female arbitrators in the ICSID community is thus an “embarrassing” 95% to 5%. Dezalay and Garth’s classic account of the field as dominated by “grand old men” in competition with “young technocrats” might thus be revised, at least in the ICSID context, to include only two “formidable women.” Though in recent years there has been some reason for optimism, male ascendancy over the profession strikes at the heart of the discipline’s legitimacy. At stake is none other than the “alleged neutrality of the pre-existing arbitration community and, with it, of arbitration itself.”
This note proceeds in five further parts. Part II provides an overview of women’s role in mythological arbitrations. Though most of these episodes are, of course, fictional, they provide insights into ancient civilizations’ understanding of the role women should (and could) play in arbitral processes. They also inform us of the attributes the ancients believed ordinary women lacked, preventing them from participating in regular, nonmythic, arbitration. Parts III, IV, and V address ancient Greece, ancient Rome and ancient Egypt, respectively. The basic structure for these Parts is the same: I start by briefly explaining how arbitration was practiced in the relevant civilization. I then examine the legal restrictions affecting participation by women in that civilization’s arbitral processes. Finally, I evaluate the extent to which these restrictions were abided by in practice, drawing on examples of female involvement in arbitration. Through them, this note can only hope to show that “without the female contribution to the development of the arbitral discourse over time,” arbitration would “simply not have developed into what it is today.” Finally, Part VI provides a brief conclusion.