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ARTICLE

Diversity in International Arbitration: Five Tips to Break the Barriers

Armeen Mistry Shroff

Summary

  • International arbitration offers a dynamic and diverse career path but faces significant entry barriers, especially for first-generation lawyers, women, and lawyers of color.
  • Aspiring international arbitration counsel, particularly young women of color, should follow these five practical steps to enter and succeed in the field.
  • Young lawyers should use their distinct perspectives and experiences as assets in international arbitration and aim to foster a more inclusive and diverse professional environment.
Diversity in International Arbitration: Five Tips to Break the Barriers
Liudmila Chernetska via Getty Images

For a lawyer with a travel bug and a passion for trying cases, international arbitration sounds like the dream. You travel to fun international destinations and learn from practitioners from around the world. Law students and young lawyers may be confused about the best way to break into this international space. For first-generation lawyers, lawyers of color, and women lawyers, there are additional systematic barriers to cross.

In some ways, international arbitration is an incredibly diverse area of law—a hearing room can hold people of varying nationalities, civil and common law coexist (mostly) peacefully, simultaneous translations are common during testimony, and culturally differing cross-examination styles are embraced. Representing a client in an international arbitration hearing can be one of the most exciting and rewarding experiences of a young lawyer’s career. Moreover, international arbitration is overwhelmingly the preferred method of resolving cross-border disputes, and those with a cross-border practice will likely encounter international arbitration at some point in their career. See, e.g., White & Case, 2021 International Arbitration Survey Report: Adapting Arbitration to a Changing World.

The Challenges of Entry

In other ways, international arbitration—like many legal specialties—has a diversity problem. There is a persistent dearth of women and people of color among arbitrators. Arbitrators at the American Arbitration Association and JAMS are 88 percent white and 77 percent male. Vivia Chen, “Is the White, Male World of Arbitration Ready for Diversity?,” Bloomberg, Aug. 13, 2021. A little over 17 percent of appointed arbitrators in the International Chamber of Commerce between 2016 and 2020 were women, mostly from the Western hemisphere. Umika Sharma, “The Invisible Stigmatization of Female Practitioners in International Arbitration,” 17 Int’l J. L. in Context, Special Issue No. 3, 371–89 (2021). And arbitrators also typically skew older. As Vivia Chen points out in the article cited above, at the Financial Industry Regulatory Authority, 75 percent of arbitrators are 60+ and 44 percent are 70+. In investment arbitration, only 2 out of the 25 most influential arbitrators are women, and 22 of those 25 are from North America or Europe. Andrea Bjorklund et al., The Diversity Deficit in International Investment Arbitration (Academic Forum on ISDS Concept Paper 2020/1, January 21, 2020).

The legal world has institutional barriers that make it difficult for practitioners without traditional access points to succeed. This problem is exacerbated in a specialized practice like international arbitration. As the 2021 survey cited above concluded, “[w]hile it is undoubtedly important to promote diversity across arbitral panels, the reality is that a lot of work remains to be done in promoting diversity across counsel teams, too.” For those invested in this space, it is a well-known pipeline issue—“today’s counsel may be tomorrow’s arbitrators.” We need diverse practitioners who will become diverse arbitrators.

In this article, I offer my personal perspective on what steps young women of color may take to establish themselves as international arbitration counsel. The field has changed considerably over the years, and I remain optimistic that international arbitration will become and remain a welcoming space for diverse practitioners and arbitrators alike. This list is based solely on my personal experience. It is not endorsed by my current or former employers, it is not exhaustive, and it is not objectively authoritative. I am writing this piece with the hope that it can spark a dialogue and help others who share my experience. If you have something to add from your own experience or disagree with any of this, please reach out and tell me why!

1. Learn the Basics, Then Master the Specifics

First, learn the basics and then the specifics. At bottom, international arbitration is a type of dispute resolution, and the underlying skills needed to succeed in international arbitration are the same as in any litigation practice. Establish strong research practices. Hone your writing style. Understand best practices for guiding clients through the life of a case, from pleadings to final hearing. Dive into the minutiae of discovery, and master the facts of any case on which you are staffed. Learn how to prepare fact and expert witnesses to testify in depositions and before a decision maker. Ask a lot of questions to help you grasp the “why.” Wrapping your arms around these skills will transfer seamlessly to a career in any dispute resolution practice.

Once you have mastered the basic skills, immerse yourself in the specifics of an arbitration practice. Learn about the structure of the arbitration process, including drafting arbitration clauses, selecting an arbitration panel, and enforcing arbitration awards. Don’t neglect the importance of procedure. Just as a trial attorney who practices in federal court needs to know the Federal Rules of Civil Procedure, a practitioner in international arbitration should strive to be an expert in the basic procedural rules that govern major tribunals like the London Court of International Arbitration, the International Chamber of Commerce, the Singapore International Arbitration Centre, the Hong Kong International Arbitration Centre, and the China International Economic and Trade Arbitration Commission. Understand when and what evidence may be introduced, what confidentiality obligations exist in each forum, and the intricacies of witness preparation and sequestration. It is good practice to know these rules if and when you are staffed on your first international arbitration. Knowing these rules from various fora well enough to compare and contrast them will also help you guide future clients through the pros and cons of choosing a particular forum.

2. Speak Up

Second, practice your public speaking, both in a formal legal setting and in less formal networking settings. If you are practicing at a law firm, ask for opportunities to speak before judges and arbitrators. It’s terrifying but worth it. Join an ABA committee (or several). Put your hand up to moderate an expert panel at an upcoming conference. Perhaps even record a podcast! There is a plethora of speaking opportunities available for those who ask. With each opportunity, you will become more confident and comfortable presenting. This will serve you well when you ultimately become counsel and are presenting your case.

3. Write It Up

Third, read and write in the space. There is no shortage of excellent research and writing on various topics in international arbitration. Sign up for newsletters written by leading law firms and practitioners. Learn about the major topics of discussion. Read everything, but don’t take it all as the gospel truth. As is true in any specialty, understand that there are nuances to the positions. As you become entrenched in the arbitration world, you may find it helpful to join international arbitration groups on LinkedIn and through bar organizations. When you start feeling like you have your hands around the basics (and this, understandably, should take a while), start to write! Pick a topic that you are passionate about, and pitch an article or two to the ABA and other publishers. You’ll learn a great deal choosing your topic and researching the articles, and over time you will establish yourself as an expert on the topic that you choose.

4. Connect

Fourth, connect with others in the space. Many organizations have formal mentorship programs in which you may participate. Moreover, as you learn more and read more, you will come across practitioners in the area organically, some of whom may share your background and others who may not. If someone’s practice, research specialization, or journey in international arbitration speaks to you, reach out. Ask to meet up (virtually, or in person if feasible), and inquire about ways you can get more involved in what that person does that interests you. Very few people will say no to this ask—and most will be happy to meet a young, motivated practitioner. While formal mentorship programs can be effective, it’s important to remember that great mentors often come from the most unlikely of spaces. Careers are long, and you never know how someone you meet today may affect your career in the future. Keep an open mind, and treat your networking as an opportunity to learn, not just an opportunity to “get ahead.”

5. Know Yourself, Be Yourself

Fifth, and perhaps most importantly, use every opportunity to highlight how you are unique! International arbitration is an unusual area to practice law in part because it is where diverse cultures intersect. If you are a practitioner from what is called (offensively, in my opinion) a “nontraditional” background, this is where you can shine. Highlight your language skills and your experience working and living abroad. If you are comfortable doing so in your professional life, consider being candid about your background and how and where you grew up. Your individual, distinctive perspective can be an asset. Being your full, genuine self not only will serve you by showing the world what you bring to the table but will also help you to exude confidence and authenticity in your career.

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