With global attitudes to race under scrutiny like never before, a practitioner, an academic and the director general of an arbitral institution look at how to improve ethnic diversity in arbitration.

The death of George Floyd in May and subsequent Black Lives Matter protests brought race to the forefront in all walks of life and in the intervening months, lawyers around the world have spoken out about discrimination and the lack of representation in the profession.

The lack of diversity among arbitrators and senior arbitration practitioners had already been discussed for some years. Bryan Cave Leighton Paisner’s 2017 report Diversity on Arbitral Tribunals: Are we getting there?, identified that 84% of proceedings at the International Centre for Settlement of Investment Disputes (ICSID) between 1972 and 2015 were presided over by two or more Anglo-European arbitrators, and only 4% of tribunals were composed entirely of black, Asian and minority ethnic (BAME) arbitrators.

“It is an overwhelmingly homogeneous landscape, generally older white men with an Anglo-European background,” agrees Mayer Brown construction and engineering disputes partner Kwadwo Sarkodie, identifying little difference in diversity between arbitrators and arbitration counsel, with the caveat that the confidential nature of arbitration makes his observations anecdotal.

Emilia Onyema, a senior lecturer in international commercial law and associate dean of law and social Sciences at SOAS, University of London, offers a similar perspective: “It is not that apparent, until you venture into international arbitration and you attend conferences and it is very apparent – you see a team of lawyers and a panel that is entirely white.”

Onyema draws attention to musical artist Jay-Z’s widely reported dispute with clothing brand Iconix in 2018, and his official, and ultimately successful, complaint that the lack of diversity in the American Arbitration Association’s roster of arbitrators made unconscious bias a real possibility. “For the general public this was a watershed, but not for the industry as it was already being talked about – there were a lot of people with [ethnic minority] connections, and those without, who had engaged and said clearly that there was a problem and had raised it at conferences well before Jay-Z made his point; but being the celebrity he is, then that raised the profile of the issue,” she says.

Much of the discourse before now has focused on gender, and advances have been made in promoting women both as arbitrators and arbitration counsel, for example via The Equal Representation in Arbitration (ERA) Pledge.

Jacomijn van Haersolte-van Hof, director general of the London Court of International Arbitration (LCIA) and a key figure in the ERA Pledge, insists that gender is only the beginning and that ethnic diversity is being addressed: “I did not intend for a pledge to be limited to gender diversity; however when it was embraced by the London community a fairly pragmatic approach was taken by focusing on gender diversity as low-hanging fruit.”

Onyema agrees that “the work that has been done so far on gender diversity has highlighted other forms of diversity, so along with the fact that some people have more than one measure of diversity – the idea of intersectionality – has helped promote and bring to the fore the issue of ethnic diversity”.

DIFFICULTIES IN TACKLING THE ISSUE

All three interviewees cite the difficulty in obtaining accurate data pertaining to ethnicity. Van Haersolte-van Hof says “other forms of diversity are much more difficult to quantify” than gender, which has a simple 50-50 split in the population.

She highlights “systemic complications” in local laws: “Even the recording of certain forms of statistics is illegal in some jurisdictions.” Germany, for example, does not collate ethnicity data to the same degree as many other countries.

There was also a degree of resistance: “When we started promoting gender diversity we had a considerable backlash in some regions which said we were promoting gender at the expense of other characteristics such as racial and ethnic diversity, so the more diversity forms you try to include the more tricky it becomes.”

Onyema notes: “All we can go by is what the institutions have published, which we can rely upon; but we also know a lot of arbitrations happen outside the institutional system.”

The problem lies with the international firms which dominate the profession, she continues: “You have the firms which are predominantly white, and the parties rely heavily on suggestions and advice given to them by solicitors and counsel, and… [if] the other people they know and are aware of are white, it becomes a vicious circle – you want the best for your client, and the best information you have revolves around a tiny group of people and you continue to use this same group of people. The more you use this group, the more authority they attain and they become experts and authorities, but in fairness to the firms it is taking a risk to bring new faces into the mix.”

Sarkodie agrees that firms bear a substantial responsibility: “Global law firms need to increase the diversity of lawyers, but in order to see that filter through to arbitration lawyers and acting as arbitrators there is a long way to go – as participation in arbitration is a function of seniority.”

In the long term “having diversity on panels and diversity of arbitrators to choose from is vitally important, but real change can run up against short term practical considerations such as conforming to clients’ expectations by proposing the names they have heard of, which may serve to point back to the ‘usual suspects’. The constant tension of considerations might hold back interesting and positive initiatives from bringing about rapid change”.

SOLUTIONS AND THE FUTURE

The ERA Pledge has shown what can be achieved in a short time by raising awareness and providing lists of practitioners.

The same model was used for the African Promise, which according to its web site is focused on “improving the profile and representation of African arbitrators”, by establishing “concrete and actionable steps”, including fair representation on committees, panels, counsel and arbitrator appointees.

The ‘New List’, a list of arbitration professionals of African descent was compiled in February 2020 by Katherine Simpson of Simpson Dispute Resolution and Nancy Thevenin of Thevenin Arbitration & ADR, raising the profile of qualified diverse professionals by collating their information and credentials.

“It is important that diversity initiatives be embraced by the entire community and by all stakeholders – we are seeing for gender that institutions have really embraced the need to be inclusive,” says van Haersolte-van Hof, pointing out that 48% of LCIA-appointed arbitrators are female as of 2019; in contrast with appointments by parties and co-arbitrators which lag far behind.

Sarkodie states: “I am a fan of the measurement, recording and publishing of data to address the issue, if you don’t know where you are and your direction of travel, it is very hard to measure and judge what needs to be done.” He suggests changes to the selection and appointment of arbitrators, “perhaps on a blind selection basis”.

Onyema is optimistic: “There are some of us who started in arbitration in the 1990s who can see we have made a lot of progress, we talk about it and it is difficult to attend a conference now without hearing the word ‘diversity’ which is great, as it creates awareness.”

“The next stage is to begin to see some action, more diverse people being appointed and nominated, and people beginning to shift their perceptions,” she concludes.

By Robert Li