Diversity in International Arbitration

Vol. 20 No. 1

By

How diverse is the world of international arbitration? As an African American who has practiced and researched in this field for more than 32 years and watched women and minorities – slowly, in too-small numbers – join the ranks of international arbitrators, advocates, and others, I have always been curious about whether my own experience is typical.

To provide a current assessment of the diversity in international arbitration, I expanded on the methodology I used in two earlier articles about American minorities in international arbitration.[1] I examined American diversity in international arbitration across the target populations for the ABA’s Goal III diversity efforts: American women, American minorities,[2] American lawyers with disabilities, and American LGBTQ lawyers.[3] I sent a survey directly to 413 international arbitration practitioners, and I forwarded it to a number of international arbitration practitioner organizations.[4] Finally, I contacted leaders of international arbitral institutions to see whether they would be willing to share data on their appointments of members of the target populations. Thirty-four individuals completed the survey, and representatives of three of the international arbitral institutions provided data. 

In this article, I first summarize information provided by the arbitral institutions, then discuss information from the survey, and conclude by addressing the pressing question of how to increase appointments of women and minorities to international arbitration cases.  

Diversity of Appointments by International Arbitral Institutions

Of the 14 international arbitral institutions I contacted, three responded and provided numbers, or the means to calculate numbers, on arbitrator appointments by gender: The Hong Kong International Arbitration Centre (HKIAC), the International Centre for the Settlement of Investment Disputes of the World Bank (ICSID), and the International Chamber of Commerce International Court of Arbitration (ICC). The organizations did not have information available on American minorities, American lawyers with disabilities, and American LGBTQ lawyers. Chart 1 lists the results from these three institutions.

 Chart 1: Arbitral Institution Appointments

The numbers speak for themselves: When they are seeking an American arbitrator (or any other national), parties and international arbitral institutions need to appoint more women. Although the percentage of women appointed is significantly higher than it has been in the past, the process of arbitrator selection still has to be opened up somehow by the international arbitration gatekeepers. While each institution has its own process and terminology, in general, appointments are made by the institution pursuant to their nomination process while confirmations are done of arbitrators nominated by the parties.

Based on the survey results below and extrapolating from this information on American women, the participation of American minority lawyers, American lawyers with disabilities, and American LGBTQ lawyers is probably far less representative, although still better than it was in international arbitration in the 1980s and 1990s. 

Diversity As Expressed in the Individual Surveys

The survey asked about the respondents’ experience in international arbitration with members of the four groups listed for the ABA Goal III target populations between 2003 and 2013.

A total of 34 people responded to the individual surveys. Of those, 22 were or had been in private practice, and 23 had acted as arbitrators. The rest were a mix of other categories, such as an employee in an arbitral institution, in-house counsel, professor, or judge. Most of the respondents (25) had more than 20 years’ experience in international arbitration. The respondents’ experience serving as arbitrator, counsel, or with an arbitral institution ranged from one to hundreds of cases. Cumulatively, the respondents have served in more than 2,500 cases in these roles over the past 10 years (although some respondents may have included pre-2003 cases).

American Minorities

Of the 34 respondents, 14 had experience with American minorities in international arbitration in the following numbers (some categories contain a range, as some respondents provided estimates).

The respondents noted the participation of American minorities as arbitrators: one Hispanic American chair, two African American co-arbitrators, two Middle Eastern or Arab American co-arbitrators, four Asian American co-arbitrators, two Hispanic American co-arbitrators, and one Asian American sole arbitrator. The respondents provided only a small amount of information about how these American minority arbitrators were appointed: four were appointed by the parties, and one was a joint nomination by either the parties and co-arbitrators or the parties alone.

As to American minorities as counsel in arbitration cases, the respondents reported experience with 27 African Americans, 22 to 24 Middle Eastern or Arab Americans, 18 to 20 Asian Americans, and 22 Hispanic Americans. Three were lead counsel, seven were members of the arbitration team of the claimant(s) or respondent(s), and two were in other roles.

Several survey respondents commented on the particular problems facing African Americans.  Among them was this: “In the Middle East, Far East, and Latin America, I have witnessed overt racism towards ‘blacks’ as opposed to those who are ‘brown’ or ‘white’ (and not to African Americans, but usually black people [from that country where the arbitration takes place]). Whether in terms of jokes, stereotypes …or simply getting around a city, it can be challenging due to how the local black population might be treated in that host country, or what the majority of people of that country have viewed and perceived from the television or the media. Combine that with a career where you have to deal with people from different nations – and not just professionals, but witnesses who may be uneducated or not used to seeing a black person – it becomes all the more challenging.” 

American Women

Twenty-six out of the 34 arbitration practitioners responding had experience with American women in international arbitration. At least 47 to 51 of these experiences were with American women as arbitrators. The respondents reported six occasions when the woman served as chair of the arbitration panel and at least 30 occasions when the women served as co-arbitrators. As to the manner of appointment (note the numbers are based on ranges provided by the respondents), at least 51 to 61 were party appointments as co-arbitrator, jointly as chair, or jointly as sole arbitrator. Six appointments were by arbitral institutions. Well more than 204 to 217 American women served as counsel (some respondents recalled specific numbers and other respondents indicated they had seen “numerous” and “dozens” of American women counsel).

In comments, some respondents observed, “There are women on the team. So they participate as members of the team. I am unaware of any special status or treatment.” Others noted, however, that women with families can face difficulties and that there can be some discomfort associated with foreign travel: “Male colleagues have often seen foreign travel as a time to party/let off steam. Female colleagues are sometimes seen as more conservative or prudent and a hindrance to that lifestyle. For that reason, they may not be selected for a particular trip on account of their gender.”

At least 21 to 24 of these American women were lead counsel, and at least 117 to 118 were members of the arbitration team of the claimant(s) or respondent(s).

American Lawyers with Disabilities

Only one respondent had experience with an American with disabilities in an international arbitration. A few commented that they had not seen Americans with disabilities much in the profession, and others referred to non-Americans with disabilities as having been arbitrators at the “top of their game.” 

LGBTQ Lawyers

Five respondents had experience with American LGBTQ lawyers in international arbitration, and the rest either indicated they had no experience or did not know whether any of the participants were LGBTQ. Three American LGBTQ lawyers were noted as serving as arbitrators, although the respondents identified the specific roles for only two: one as chair and one as co-arbitrator. Those who responded indicated that one was jointly nominated by the co-arbitrators and the parties, and one was appointed by an arbitral institution. Four American LGBTQ lawyers were noted as having served as counsel, with one as lead counsel and the other three as members of the arbitration team of the claimant(s) or respondent(s).

One respondent’s comment suggested that, as with women, certain biases may have more force in the context of foreign travel: “[I]t is possible that a lawyer may feel uncomfortable traveling with a gay colleague. While he/she may profess to be ‘okay’ with the sexual preference when in the office, that may become different on the road (though unsaid of course). He/she would just choose someone else for the trip if more senior, or profess an excuse not to travel if junior.”

Comments on the Surveys

While recognizing that these samples are far from perfect and are essentially only slightly more than anecdotal, a few thoughts do come to mind. As of today, a significant number of American women (most likely white) are involved in international arbitration. Many women serve as counsel, but fewer serve as arbitrators. A few American minorities work as counsel, even fewer are working as arbitrators, and an infinitesimal number of American lawyers with disabilities or American LGBTQ lawyers are involved in the field.

This picture may look discouraging. Several of the individual survey respondents commented that the international arbitration field is “pale, male, and stale.” My perspective, however, is a little different. When I compare today’s picture to what I saw in the 1980s and 1990s, I think of the paraphrase of the line from an old Negro spiritual: there are not as many as there ought to be, but things are slightly better than they were.

What Can the Aspiring Practitioner Do?

In an earlier article,[5] I noted seven currents that an American minority needs to navigate to make a successful career in international arbitration:

1. Domestic US current: Prestigious international law firm practice

2. Foreign-based current: Experience in the foreign office of a US law firm or foreign law firm

3. Human capital current: Law degrees (with prestige and from different countries), fluency in languages, bar memberships, nationalities, family ties, mentors, internships at international arbitral institutions, participation in the Willem C. Vis International Commercial Arbitration Moot

4. Cooptation current: Articles in key journals, speeches, membership on advisory boards

5. Awareness of changes in international commercial arbitration current: Openness to new areas in arbitration where hierarchies are not set, such as (back in 2004) domain name dispute resolution

6. Lifestyle current: International arbitration requires significant travel and time commitments

7. Cultural diversity current: How open is one’s culture to underrepresented groups moving up the social hierarchy?[6]

These currents remain valid today, and members of the four groups in the target population need to manage them to advance in the field.

Describing the preparation required of an American woman (a description I would extend to all Americans, especially those in the target populations), the words of Karen Mills of Indonesia are especially apt. “It is not that easy for a woman to break in to the arbitration field, at least not as arbitrator,” she writes. “The first thing she should do is join ArbitralWomen, which supports women in arbitration. But you really need to be involved in actual arbitrations, which means you need to work in a firm that does them and get on the team so you can assist and observe before you have anything to sell yourself on. The Vis and other Moots are very useful, and any student considering entering the field should become involved in the moots as a necessity. It is the best training a student can have.”

Can Neuroscience Help Increase Diversity?

In addition to understanding the currents described above, an understanding of neuroscience should provide insights for gatekeepers and practitioners.

An emerging area is the study of implicit bias and stereotype threat.[7] The concepts refer to the process by which schemas (what might be called “mental shortcuts” or “templates of knowledge”) develop in the brain that become implicit cognitions, things we do without thinking, and may become implicit social cognitions, things that guide our thinking about social traits. These implicit social cognitions are derived from stereotypes in the sense of traits we associate with a category and attitudes (overall evaluative feelings that are positive or negative). Through the process of the schemas with these implicit social cognitions, implicit forms of bias have been seen to emerge. In this research, implicit social cognitions abound around the world, and they tend to support existing social hierarchies.

What could address the types of implicit bias that may be present as members of the target population enter this sea of schemas in international arbitration? Hard work, pluck, luck, and mentorship/sponsorship are all necessary to rise in the international arbitration sector. Those four things may come together in different ways and may occur anywhere in the world.

The key moment, one I have seen repeated for so many people in this field, is the day, usually fairly early in a career for those with high-level international arbitration aspirations, when someone asks “Can you be in Bratislava next week?” The person on the receiving end of this question may have little or no experience with Bratislava, but he or she has the confidence to say yes. To seize an opportunity outside your comfort zone, in short, requires considerable self-assurance.

I call these opportunities, which come in cycles throughout a career, “international plane calling” moments. The key is to recognize them and have the pluck to pack a bag and head toward the airport. That first experience will be followed by a second, and soon the person with pluck will become the “go-to” person for international work.

For the individual in the target population, the principal lesson from neuroscience research is that implicit bias is malleable and can be changed – with varying degrees of difficulty. A secondary lesson is not to succumb to stereotype threat when one feels at risk of confirming, as a self-characteristic, a negative stereotype about one’s group. This would include not giving in to self-handicapping strategies such as reducing practice time for a task and giving up one’s sense of belonging to the stereotyped domain.

To address implicit bias, gatekeepers can use approaches such as social contact across social groups, counter-typical exemplars of a group (called de-biasing agents), or introducing procedural changes in nomination processes for counsel. Specific efforts might take the form of reaching out to young people in the target population to help them gain initial experience in the field as summer associates or interns and setting up organizational structures that help recognize and overcome implicit bias, such as employing people from many cultures so that one particular set of implicit social cognitions connected to one social hierarchy does not predominate and the workspace has a more fluid set of implicit social cognitions.

Finally, rather than shy away from pursuing the study of or practice in international arbitration out of a sense of inadequacy or other self-limiting schema, students and practitioners might trigger their interest in this field by expanding their cultural experiences. If this includes traveling, students and practitioners should avoid the implicit social cognitions that come in the form of “advice” from others about “those people or cultures” and instead should work hard to observe new places and people carefully and make up their own minds about what they are encountering. In my work with people on five continents, I have found that when I look carefully enough, what shines through is people’s common humanity, not their differences.

Conclusion

While writing this article, I was asked to provide a legal training for the Secretariat of the ICC International Court of Arbitration in Paris. It was in Room 12 at ICC Headquarters, a room where so many plenary and special court sessions, Arbitrator Colloquia, Advanced Arbitrator Trainings, and other events have occurred. As I walked around the room and shook hands with the counsel, deputy counsel, secretaries, and interns in a room where at least half the participants were women, in my mind’s eye I saw the ghosts of sessions in the 1980s, when very few women would have been present. I was overjoyed to see the progress that has been made, progress that gives me hope for what can still be done to enhance diversity, especially American diversity, in international arbitration.

In this article I have focused on diversity of arbitrators and counsel. However, I must pay tribute to the members of the target population who may not have been in the classic roles of arbitrator or lead counsel but have been present, whether working with an arbitrator, on the team of a party counsel, or within an international arbitral institution. These people’s contributions to maintaining and enhancing the international arbitral edifice may rarely be recognized, but I know they have been there, and I salute their determined work.

Benjamin G. Davis is Associate Professor of Law at the University of Toledo College of Law. A longer version of this article is available at Davis, Benjamin, American Diversity in International Arbitration 2003-2013 (Pre-Publication Draft) (December 13, 2013) available at SSRN: http://ssrn.com/abstract=2364967. Professor Davis can be reached at ben.davis@utoledo.edu.

[1] Benjamin G. Davis, The Color Line in International Commercial Arbitration: An American Perspective, 14 Am. Rev. Int’l Arb. 461 (2004); Benjamin G. Davis, International Commercial Online and Offline Dispute Resolution: Addressing Primacism and Universalism, 4 J. Am. Arb. 79 (2005). For pioneering work on diversity of women see Louise Barrington, Arbitral Women: A Study of Women in International Commercial Arbitration, in The Commercial Way To Justice: The 1996 International Conference of the Chartered Institute of Arbitrators 229-41 (Geoffrey M. Beresford Hartwell ed., 1996) (describing the lack of women in international arbitration but their increasing presence in international commercial arbitration), cited in Susan D. Franck, The Role of the International Arbitrator, 12 ILSA J. Int’l & Comp. L. 499 (2006). For excellent historical work on women in arbitration, see Mireze Philippe, Evolution of Women’s Involvement in Dispute Resolution in the Last Thirty Years; the Institutional Experience & ArbitralWomen Experience, ArbitralWomen Newsletter, Apr. 2013, at 7, available at http://www.arbitralwomen.com/index.aspx?sectionlinks_id=140&language=0&pageName=Newsletters. For the most recent comprehensive discussion of gender in international arbitration, see Lucy Greenwood & C. Mark Baker, Getting a Better Balance on International Arbitration Tribunals, 28 Arb. Int’l 653 (2012); Lucy Greenwood, Unblocking the Pipeline: Achieving Greater Gender Diversity on International Arbitration Tribunals, Int’l Law News, Spring 2013, available at http://www.americanbar.org/publications/international_law_news/2013/spring/unblocking_pipeline_achieving_greater_gender_diversity_international_arbitration_tribunals.html. For excellent work on diversity of nationality, see Ilhyung Lee, Practice and Predicament: The Nationality of the International Arbitrator (With Survey Results), 31 Fordham Int’l L.J. 603 (2008). A literature search has not found other work focused on American minorities, American women, American lawyers with disabilities, or American LGBTQ lawyers in international arbitration let alone all of them at once as a target population.

[2] Race is, of course, a social construct. The vast literature on this subject and its discussion are presented in Meera E. Deo, Empirically-Derived Compelling State Interests in Affirmative Action Jurisprudence, 65 Hastings L.J. (forthcoming 2014), available at http://ssrn.com/abstract=2315787. 

[3] ABA Mission and Goals (Goal III), http://www.americanbar.org/about_the_aba/aba-mission-goals.html (last visited Jan. 8, 2014).

[4] I reached out to ICC Counsel Alumni members, of which I am a member, as well as The International Law Discussion Space listserv, the Society of American Law Teachers listserv, and the Contracts, Dispute Resolution, and Minority Groups listservs of the American Association of Law Schools. Further, I greatly appreciate that OGEMID and ArbitralWomen were kind enough to share the survey in their online spaces. 

[5] See Benjamin G. Davis, The Color Line in International Commercial Arbitration: An American Perspective, 14 Am. Rev. Int’l Arb. 461 (2004).

[6] Id.

[7] This description of explicit bias, implicit bias, and stereotype threat borrows substantially from these excellent sources: Samuel R. Bagenstos, Implicit Bias, 'Science,’ and Antidiscrimination Law, 1 Harv. L. & Pol’y Rev. 477 (2007); Jerry Kang, Implicit Bias: A Primer for Courts (2009), available at http://www.americanbar.org/content/dam/aba/migrated/sections/criminaljustice/PublicDocuments/unit_3_kang.authcheckdam.pdf; Project Implicit, https://implicit.harvard.edu/implicit/ (last visited Jan. 8, 2014); Jeffrey J. Rachlinski & Gregory S. Parks, Implicit Bias, Election ‘08 and the Myth of a Post-Racial America, 37 Fla. St. U. L. Rev. 659 (2010); Reducing Stereotype Threat, www.reducingstereotypethreat.org, presented in Benjamin G. Davis, Implicit Bias and Stereotype Threat CLE, Toledo Bar Association, April 12, 2013 (powerpoint available from the author). See also Lucy Greenwood & C. Mark Baker, Getting a Better Balance on International Arbitration Tribunals, 28 Arb. Int’l 653 (2012).

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