By Rachael Smith
This is Part II of a two-part series.
Next up at the conference was Defining the Issues, with panelist Professor Anna Spain Bradley, Melinda N. Hodgson, and Professor Anne Marie Whitesell, moderated by Professor Won Kidane.
Professor Anna Spain Bradley (Assistant Vice Provost for Faculty Development and Diversity, University of Colorado Law School, Boulder, Colorado) started with the question, what is the meaning of diversity? To answer this question, she began with a series of questions. First, she asked “why is diversity challenging?” Then she questioned why historically people of color are not part of the creation of the arbitration process; instead, men from mainly Anglo-European nations are representing the world. There is also the issue of party selection, which means that arbitrators’ appointments are not permanent, so each panel creation is a new start. She then moved on to “why diversity is important?” noting briefly that it is good for business as it cultivates innovation, adds legitimacy to the process, and reflects more broadly the norms throughout the world. Next she asked, “what do arbitrators look like?”–a hard question to answer as it cannot be answered without talking about identity. Identity is created in context; after all, who we are is not about discrete boxes, but rather an intersectionality of many categories. In addition, identity is a legal definition in the United States.
Taking all of the above questions into account, she inquired about “how . . . these factors interact with decision making and implicit biases.” Professor Bradley examines these issues through the lens of neuroscience. Especially in the case if implicit bias, the link between fear response, as processed by the amygdala, and the emotions linked with decisions has been clearly documented. The most familiar example is the Project Implicit, commonly known as the Harvard implicit bias test. In this context, it is fair to say there are no humans, and no arbitrators, who are truly color or gender blind. However, there are steps that one can take to relearn this cognitive process to allow for a better decision-making process. The test, which is open and free on-line, can be used as a tool to enhance the decision-making process and to examine the role power plays in the decision-making process.
Next Professor Anne Marie Whitesell (Professor and Director of International Dispute Resolution Programs, Georgetown University Law Center, Washington, D.C.) addressed the role institutions play in international arbitration diversity. She started with a brief history of the International Chamber of Commerce (ICC), noting key dates and developments – see the ICC’s website for details of the history. As part of the historical context, the standard by which those who practiced in the field were judged by was if “he was of good sense and sound judgment.” Currently the ICC does collect the percentage of women who are selected as arbitrators. She noted that while institutions like the ICC can and do take the lead in ensuring diversity, they are limited by the requirements of the case – i.e. each case requires a certain set of skills and expertise. However, when women are not selected, the impact on their future ability to gain opportunities, which will allow them to develop and diversify their skills in international arbitration, are still more adversely impacted; without opportunities to demonstrate their skills and expertise, they cannot gain the needed experience. Lastly, she noted that while institutions, like the ICC, are an important part of the change, they are not the only actors and that other parties need to address this issue.
Mélinda N. Hodgson (Foley Hoag LLP, New York) reviewed the role of the practitioner. At its most simple, they need their clients to act on their advice. Clients will only do so if they trust the experience, qualifications, and substantive and subject expertise of their attorneys, along with their record of accomplishments and ultimately their efficiency in the arbitral process. One way to address this is to broaden the access to objective data. This would answer the clients’ need to find a diverse pool of practitioners– as it would address not just gender diversity but also cultural and regional diversity. This would also provide the type of objective record of experience and the documentation of accomplishment of those practitioners who are unknown to a client. This added knowledge would also make the pledge of taking an extra five minutes of creating a list of characteristics more powerful.
Professor Whitesell concluded the panel with a discussion of the power dynamics of the arbitral tribunal itself. Generally, the presiding arbitrator holds a key role. They are expected to be the most persuasive, as well as to help create consensus. They are expected to have experience, professional respectability, and to be held in high regard within the international arbitration community. If they are not diverse, there is more of a likelihood of lack of diversity. As previously mentioned, this is a reflection of unconscious biases of choosing those who look like oneself. Having outlined the problem and various components that lead to a lack of diversity, the next step was how to address these issues.
The next panel, A Critical Look at Solutions, with panelist Lucy Greenwood, Professor Catherine A. Rogers, Professor Nassib G. Ziadé, was moderated by Caroline S. Richard and had many recommendations. The panel started with Caroline S. Richard (Freshfields Bruckhaus Deringer US LLP), who outlined a list of instructions. First, take the time to do the needed research and use the tools that are available – everything from the taking an extra five minutes to using institutional databases (e.g., ICC). Second, take the proactive steps of challenging oneself instead of using the defense of what is already familiar; instead shift focus to who would be the best fit for the needs of the arbitration in terms of the nature of the case and for the needs of the clients. Lastly, international arbitration has always been “global” as a practical matter, but the representation of regional powers and emerging markets improves particular expertise and adds legitimacy to the arbitration process.
Lucy Greenwood (GreenwoodArbitration, Houston, Texas) reemphasized the points above as the right thing to do in themselves, but also as part of better business practices. She stated that international arbitration requires cooperation by all the parties. One way to ensure cooperation and participation in the arbitration process is to reflect the diversity of the case and parties. Diversity of the groups has the added benefit of challenging groupthink; with a diverse group, the calculations of risk and the mitigation of risk are improved as they challenge underlying assumptions that could be incorrect.
Greenwood also discussed how unconscious biases could be seen in the percentage of women – 16 percent is the diversity ceiling. This is not to be confused with merit – the 16 percent does not reflect the relative pool of women, in either the number of women or the number of qualified women within that pool. For an excellent and more detailed discussion of the lack of diversity with statistical information, see Getting a Better Balance on International Arbitration Tribunals (28 J. London Ct. Int’l. Arb. 653(2012) (full text freely available)) and the update to the article above, Is the Balance Getting Better? An Update on the Issue of Gender Diversity in International Arbitration (31Arb. Int’l.413 (2015)).
Greenwood also discussed how inclusion is another way to address lack of diversity, by welcoming newcomers to the field. Through conferences, moot court competitions, young arbitration groups and publications (most importantly, newcomers as authors and co-authors), the field will reflect more of the pool of qualified women in this field. This also creates more opportunity for new practitioners to demonstrate their competence in a complex field.
Richard, the moderator, then asked, what role institutions play in creating solutions. Professor Nassib G. Ziadé (Chief Executive Officer, Bahrain Chamber for Dispute Resolution (BCDR-AAA), Manama, Kingdom of Bahrain), answered first and stated that in fact they do have a role, but it is important not to forget the role of parties and counsel. He also pointed out that these steps would also address the issue of legitimacy, as more diversity of practitioners means fewer conflicts of interests and less requirements of the wearing of different hats at the same time. Institutions are also involved in the development of the next generation through training and guidance, which can create diversity based on experience and a solid record of accomplishment. He next discussed the use of codes of conduct to address the issue of parties reporting their own data. Institutions can also improve the overall transparency process by making their appointment process more transparent. He concluded by noting that while there is still a lot of work to be done, notably there is evidence that once an arbitrator from a diverse background is selected they are given a fair chance.
Professor Catherine A. Rogers (Pennsylvania State University – Dickinson School of Law and the School of International Affairs, Founder and Executive Director, Arbitrator Intelligence, State College) agreed with the need for more information. She went on to discuss how academia and the overall education process can help. She mentioned how U.S. law students are not encouraged to go abroad as part of their legal education, unlike many law students from other countries. This means that U.S. law students do not have the advantage of gaining some familiarity with another legal system. This lack of investment by academia in international arbitration is also reflected by the dearth of scholarships or even the utilization of internships to support and cultivate the next generation.
Professor Rogers next discussed how the use of data about an arbitrator can be problematic; for example, in the law firm context, the same list of names is recycled over and over again. While using a pre-approved list seems efficient, an important evaluation process is bypassed. It is important to evaluate the object of the case and consider the needed characteristics of the arbitrators to meet the needs of the case. This issue can be corrected with better collection of information to address the issue of gender diversity, multilingual competency, and regional diversity.
Richard mentioned how using the Harvard biases test makes it easier for all to see objectively the problem of unconscious biases. Once this issue is known and objectively verified, it is easier to take concrete steps. These steps include internet training, but also the use of external groups such as Alliance for Equity to hold training sessions. This could create better business practices, which tend to generate more business, which is better for all.
Professor Rogers ended the panel with two observations. One, the meaning of diversity is rapidly evolving, and two, international arbitration is getting more complex and more nuanced.
Due to time limitations, Professor Susan D. Franck (Chair, ITA Academic Council, American University Washington College of Law, Washington, D.C.) remarks were brief but concise. She stated that there is no one size fits all for solutions to creating more diversity. Arbitration institutions, as well as clients (either nations or commercial parties), all need to determine how to best utilize the pledge. Lastly, all in the field of international arbitration can be the change that will bring more diversity to the field.
For some more readings on this topic of diversity and international arbitration, see the Selected Papers and Articles from the conference. For background and basic introduction on international arbitration, Redfern and Hunter on International Arbitration is an excellent resource. A resource for more information about practitioners in the field of international arbitration is The Culture of International Arbitration and the Evolution of Contract Law, by Joshua Karton. Lastly, for a quick oral history about both the book above, and the history of international arbitration, see interviews with Mr. Redfern and Mr. Hunter (freely available online).