Roses are Red
Violets are Blue
These numbers confess
That there’s something askew

The arena of international commercial arbitration may seem a rarefied arena on which to discuss matters in this time of the murder of George Floyd. International Commercial Arbitration may seem so remote from protests in the street. However, in an article I have recently had published in the Fordham Law Review titled International Arbitration: A New Arbitration Story or Evidence of Things Not Seen the connection is made clearer in a new arbitration story. That article suggests, contrary to the received wisdom, the central role that blacks have actually played in the development of the American version of international commercial arbitration. Further, it suggests that other underrepresented groups are present but are unseen in this process.

This short comment laments the current state of diversity in international commercial arbitration based on newly developed statistics that have been aggregated and analyzed just when a major international commercial arbitration institution, the International Council for Commercial Arbitration (ICCA) has deigned – in the wake of George Floyd’s murder and the movement roiling the world about racism – to release a diversity and inclusion policy on June 9th.

The International Council for Commercial Arbitration “Embraces” Diversity

As one of the foremost fora of international commercial arbitration, the esteemed ICCA (the Valhalla of international commercial arbitration) just announced its Diversity and Inclusion Policy and Implementation Plan. Presented here are the four documents that make up this plan:

• ICCA Diversity and Inclusion Policy
• ICCA Diversity and Inclusion Implementation Plan
• ICCA Non-Discrimination and Harassment Policy
• ICCA Press Release

The Policy commits ICCA and Young ICCA office-holders to uphold the principles of diversity and inclusion, to promote an environment free from discrimination and harassment, and be welcoming of all members of the international arbitration community regardless of sex, gender, religious affiliation, sexual orientation, and race. It further calls on all ICCA Members to “respect and advance these core values in their participation in ICCA’s activities and in their other professional endeavors.”

For someone new to international commercial arbitration, this announcement can be looked at as a welcome development. However, for anyone who has known international commercial arbitration and ICCA over the past 35 or so years as I have, a first reaction of skepticism about such a diversity and inclusion policy development is far more reasonable.

Because of what we have seen and now see, I respectfully demur from any iota of enthusiasm about this development. For, we are well past the times when words would be enough, actions are required. Real concrete actions.

Let us break it down

What We Have Seen

In 2004, when presenting the article “The Color Line in International Commercial Arbitration: An American Perspective,” I noted the following based on my empirical analysis of a survey of the greatest arbitrators and/or counsel in international commercial arbitration from around the world:

On the day I presented this paper, I went to a meeting of international commercial arbitration practitioners at the Association of the Bar of the City of New York. At the table were about twenty people, 17 middle-aged white men from prestigious law firms and law schools, two white women (one American and one French I believe) and me — a middle-aged African-American. I told them to look around this table and look at the lousy job of integration in international commercial arbitration they were doing. Fifty years after Brown, I was the only minority at the table. I found it an irony that, while at the table, I was the only one who no longer wanted to be an arbitrator, a counsel, or an expert in international commercial arbitration. I said we all had to find a way to get more U.S. minorities into international commercial arbitration, an area that I love.

A comment was made that there were significant numbers of women in positions at the ICC International Court of Arbitration. I agreed, saying that when I first arrived at the ICC Court, the arbitration community was concerned about whether a female legal counsel would be respected in cases with parties from the Middle East. Today, half of the legal counsels are women and the Secretary-General and the American legal counsel are white female U.S. nationals. The Middle East concern no longer plays a role that blocks women’s progress.

A young African-American woman as well as a Hispanic-American man who were sitting by the wall were pointed out to me. She had just started five days earlier as a deputy to the white female head of the arbitration section of the United States National Committee of the International Chamber of Commerce. I understood that he was working with the International Centre for Dispute Resolution of the American Arbitration Association. Neither were arbitrators, counsel or experts in the prestigious New York law firms. I pointed out that neither of them were at the table; they were by the wall. Later, after my comments, a place came open at the table with the departure of the non-US white woman and the young African-American woman sat in the vacated seat and began to intervene in the discussion. Time will tell if she will have a significant seat or even be at the head of the table some day.

Later that day, at the session at which this paper was presented, I met with more experienced African-Americans who expressed their frustration to me as they had been told that the only way that they could get appointed to be an international commercial arbitrator was by working in one of the prestigious law firms doing international commercial arbitration in New York. The symmetry with what I had heard 20 years earlier was stunning for me and I wondered if I was watching history repeating itself.

One thing I can do to help end this lockout of U.S. minorities is to start counting heads: make a survey every year of the progress of appointments of U.S. minorities in international commercial arbitration. Access to that information might be one change that might help […] generate more U.S. minorities as international commercial arbitration practitioners. While this is a rarefied space, it is the forward place from which we can look back to Brown and measure America’s true progress in fulfilling the promise of Brown and the promise of international commercial arbitration: elimination of the color line.

In 2014, ten years later in an updated survey article I noted:

While preparing this article, I was asked to provide a legal training for the Secretariat of the ICC International Court of Arbitration this past September in Paris. It was in Room 12 at ICC Headquarters at 38 Cours Albert 1er, the room where so many plenary and special court sessions, PIDA’s, Arbitrator Colloquia, Advanced Arbitrator Trainings and other events of memory had occurred. A few short weeks later, the ICC was moving to its new locale, so this was both a return to a very familiar place and an opportunity to say goodbye in the last training held in that room full of memories. As I walked around the room and shook hands with the counsel, deputy counsel, secretaries, and interns in a room where women held up half or more of the sky, in my mind’s eye I saw the ghosts of sessions in 1980’s when women would have been barely present. As now the stale male though not so pale fellow in the room full of such jeunesse, I was overjoyed to see the progress that had been made which gave me hope for the progress that can still be made in enhancing diversity (and especially American diversity) in international arbitration.

So from 2004 to 2014 the increase in women in international commercial arbitration was noticeable to me, but the lockout of minorities seemed to be continuing.

What We See Now

The depths of the problem of diversity in the American form of international commercial arbitration has just been laid bare. Thanks to the painstaking work of Dr. Katherine Simpson, Esq we can see quite clearly that something is deeply askew in this international commercial arbitration arena.

As of June 11, 2020, she has found that out of the 3434 attorneys in Legal 500’s top US international arbitration practice groups, 54 people (1.5%) may be people of African descent. Seventeen (17) of these 37 practice groups have NO attorneys who are of African descent. This means that there are perhaps 1017 attorneys at the top US international arbitration practices who do not have (and perhaps never have had) a black co-worker as an attorney in their firm. And the firms with one black attorney in the area have been places where those black attorneys have never had another black attorney with whom to share their experiences. (Please see Dr. Simpson’s full chart and sources here)

Katherine Simpson’s work demonstrates that in some firms, people of African descent do not exist in international commercial arbitration. Moreover, in many firms their numbers are appallingly low. Now these are the big players in international commercial arbitration – the American law firms that do that kind of work and are at the top of their field. And yet, somehow, in all their brilliance they show an appalling inability to hire let alone keep people of African descent in these key roles.

What is of particular interest is that the number one firm in the list Debevoise & Plimpton is also considered one of if not the number one American firm in international commercial arbitration practice. Could that openness to have team members who are not all white and male show an ability to identify and grow talent that is lacking at those farther down the list? In a multicolor world, monochromatic thinking has lost its sway. Those who no doubt benefitted from that tight noose on opportunity will be saddened by its demise, but the rest of us rejoice.

Conversely, the frustration with the pitiful pace of integration of people of African descent (let alone other minorities) into American international commercial arbitration practice should help us see what happens when talent is thwarted without opportunity. As I read these statistics, I was brought back to the story of the little known brief legal career of Paul Robeson. It is a story that is emblematic of a person of color being thwarted and having to find another way to show their contribution on the international plane.

After his brilliant collegiate career Robeson graduated from Columbia Law School and was hired by one of the top white shoe firms of his time. He was given an office in the back. His client contact was solely this: periodically, the white partners would bring clients down to see him to talk football or track. But, Robeson never was given any legal work.

One day there was a case with a black person asserting discrimination somewhere that came in and Paul Robeson asked to work on it. The partners in power said no. He was sorely disappointed.

A black maid who cleaned the offices was in his office one day and she was shaking her head. Paul Robeson asked her why she was shaking her head. She said that with all his brains all he does is sit around and talk sports with clients. This stung him greatly.

As he was walking home, he saw there was an audition for “The Passion of Christ” and on the spur of the moment he went in. He auditioned for the role of Simon, carrying Jesus’ cross on the trail of tribulations. As he walked with the cross, he started to sing in his deep bass some old Negro spirituals and the place just erupted. Encouraged by that reaction, he went to the center of the stage and sang a few more.

And as they say, the rest is history.

Robeson was thwarted in showing his greatness as a lawyer because he was not given the opportunity to succeed. So, he found another route to make his greatness known. Firms that are more likely to welcome and nurture that greatness in minorities seem to be doing better in ratings than firms that remain monochromatic.

That is a disservice to the legal profession, disservice to their clients, and might we say a disservice to the ICCA diversity and inclusion implementation policy. Somewhat ironically, while the ICCA Plan indicates that it will ensure diversity among members of ICCA project committees, one cannot overlook the fact that the newly established “diversity” committee is staffed only by 4 women (3 of them white) and one man (from Cairo). As they say on ESPN’s Sports Center “C’mon man.”

I know that persons of color have sought the top jobs at the international arbitral institutions. Some have succeeded in Hong Kong for example. However, at the top international arbitration institutions in the world while there have been Americans to head them up, there have never been Americans of African descent as a President or Secretary General. And outside of America, other than the late Ibrahim Shihata who was both General Counsel of the World Bank and Secretary General of ICSID, no person of color has headed any of these arbitral institutions.

In the law firms, I am not aware of one person of African descent who is heading the international commercial arbitration practice.

So my reaction 66 years after Brown v. Board of Education to the ICCA policy remains one of skepticism. Not one iota of enthusiasm. Not one jot of rejoicing. To comfort me in this skepticism, I note that once I posted my skepticism on a dispute resolution listserv, some of these 37 firms “found” additional 25 persons of African descent since June 11 to put on their websites in their international arbitration practice. No new hires, just adding a line to a resume. Are these 25 “magically appearing Negroes” really doing the work or is this just marketing with blackness by having a picture of someone in the international arbitration group to give the impression of diversity but masking a reality of monochromism?

The ICCA commits to developing “ways to provide increased acknowledgement of and recognition for members who advance the values of diversity and inclusion.” We do not need “white people who like black people” awards. There are plenty of white people of good faith who have helped me in my career, both in the United States and around the world. I have no doubt that these white people have helped others. The problem is not white people of good faith or not, the problem is one of action. I do not care how you feel about me, just get your knee off of my neck.

I have known ICCA for going on 35 years and I know of what I speak. I seek action which means hiring blacks, putting them in arbitration groups, giving them opportunities, advancing them on the arbitration path, and letting their greatness flower. Instead of keeping the proverbial knee on their necks for another 35 years. The time is now and the call is to us.

If you liked this piece, don’t miss Part 2 by Dr. Katherine Simpson, an international arbitrator with offices in the US and London.

Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.

Suggested citation: Benjamin G. Davis, International Commercial Arbitration Diversity: Get Your Knee Off My Neck, JURIST – Academic Commentary, June 17, 2020, https://www.jurist.org/commentary/2020/06/benjamin-davis-international-arbitration-diversity-part1/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org