Well, some say life will beat you down
Break your heart, steal your [3] crown
So I’ve started out for God-knows-where
I guess I’ll know when I get there
I was brought back to the numbers in this article by Dr. Katherine Simpson titled “ International Commercial Arbitration Diversity: The Numbers Are Askew” written for the JURIST – Professional Commentary dated June 17, 2020, when my attention was drawn to an exchange last summer between very distinguished international arbitration practitioners on the subject of diversity.
As background, you will remember that Dr. Simpson’s study of the top American international arbitration practice groups noted that:
As of June 11, 2020, of the 3434 attorneys who appeared on their firms’ websites as part of a “Legal500 top US international arbitration practice group”, only 54 people (1.5%) maybe people of African descent. Seventeen (17) of these 37 practice groups appear to have NO attorneys who are of African descent. If this is the full picture, it would mean that there are perhaps 1017 attorneys at the top US international arbitration practices who do not have (and perhaps never have had) a black attorney as a co-worker. (Please see the full chart and sources here)
So the exchange that caught my attention is transcribed below:
Chiann Bao: Right, this next question is about diversity in arbitration. In particular, this individual would like to know what your views are on the lack of diversity – ethnic diversity – in arbitration, especially those of African and African-American descent, and what measures should be taken to address it?
Jan Paulsson: Well the thing you have to have are individuals who are attracted to this type of practice. We’ve had some experience of very gifted individuals of diverse national backgrounds, educational backgrounds, racial backgrounds what have you whom we would have loved to join my firms – different firms I have been in – but who had so many offers that we were just disappointed. Several occasions like that.
At the same time, we are conscious of the fact that we have generated extremely competitive environments and it’s not a very wise idea to take someone just to look virtuous and put that somebody into an environment which is extremely competitive where they have a learning curve which at the origin might put them ill at ease. It is not a good thing.
So you go for you look at the individuals who are extremely competitive and the competition for them is extremely high.
So I am looking forward to the day when the numbers are far greater.
I have spent a lot of time [in] Africa and I’ve seen in some of the capital cities of Africa a new generation of lawyers coming up who are extremely good. So I think there is great hope that they will be attracted to arbitration.
I think in the last maybe they tended to migrate to Europe and the most ambitious ones have entered fields of capital finance and things like that, not so much arbitration.
Remember arbitration in leading international law firms represents even in the most active ones 3,4, 5 percent of the turnover. It’s a small area of practice. And that might explain some of this.
But I’m very optimistic about this.
–Transcript of Jan Paulsson, Neil Kaplan, and Chiann Bao interview diversity question July 2, 2020, Conversations with Neil, Delos Dispute Resolution.
C’mon man.
In my memory, the international arbitration groups in the ’80s and 90’s at Coudert Freres in Paris (as it then was) or Freshfields in Paris never had an African-American lawyer hired in the international arbitration practice group during the time Paulsson was at either. Nor, I wonder, was there a nomination of an African-American as an arbitrator.
Full disclosure: I declined an offer at Coudert New York and at White and Case, New York when I was coming out of law school as I wanted to go to Paris where my soon-to-be fiancée was, and do international work from there. When I asked about starting in the Paris office with the Coudert Paris Office and the White and Case New York Office, both wanted me to start in New York and one said “we’ll see after a couple of years about Paris.” I understood that answer as a polite “never going to happen.” So I found a job on the business side. Over time, I had come to think that my pitch (“I am Mr. International”) was just not compelling enough to get me a start in a Paris Office. I learned later that the “My fiancée lives in Paris” pitch might work better. It turns out that in this past year or so, I have since learned of a similarly situated American white man coming out of law school in the same time period who had an offer from Cleary in New York facing the same pressure to start in New York from Cleary and who had a fiancée in Paris. And he pitched Coudert Paris and was directly hired at Coudert Paris. Just saying. Hmmm.
As to Africans, I have a memory of African interns at Freshfields but not sure if they were in the international arbitration group.
If I have that wrong, please correct me.
For those African-Americans or Africans with a US nexus, I think this is useful information to have to see what you are up against as a person attracted to this area of practice.
I know that the above response from a distinguished international arbitration practitioner can be very discouraging to an African-American. But, this is written to encourage, not to discourage you.
The above revealing exchange helps all to really know the playing field on which they are seeking to play as an African-American or an African wanting to work in international arbitration practice. It helps you see what is likely the way those at the top of the field who are American whites may think about them.
I just want to say that I personally do not buy this series of rationalizations in this exchange which can be summarized as:
- We tried to get the unicorn but failed each time over 40 years. They were not attracted to international arbitration.
40 years of not attracting black unicorns but managing to hire non-blacks? C’mon man. Please get real.
- We did not want to get someone who was not a unicorn just to be virtuous as they (note they, not us) would be ill at ease as they went down the learning curve.
It is as if the black unicorn had to be practice ready to be an arbitrator from the first day that they came to work in an international arbitration group.
This reminds me of the adage taught I dare say to all African-American children by their parents that they need to “Work Twice as Hard To Get Half as Far.” This adage was actually the title of a speech I made to the International Arbitration Club of New York last August 13, 2020.
And, like in a pickup basketball game, while I might generously spot these distinguished American international arbitration practitioners 50 years since Brown v. Board of Education of ignorance or lack of awareness of the issue of racial diversity in American international arbitration groups and nominations of arbitrators, these folks are at least on notice since 2003 when I published, that “Houston, there is a problem of diversity here”.
As to first-day readiness to be an arbitrator that would normally have matured over 10-15 years of practice, please note that no leader of international arbitration was practice ready on their first day. I remember them starting out buying the ICC Arbitration book at the ICC as young attorneys. All of the leaders of arbitration went down a learning curve and were mentored on that path by senior lawyers.
I remember my third day in 1986 at the ICC International Court of Arbitration when the Court replaced a Sole Arbitrator. In two or three weeks a case was brought between the parties at the Obergerichts des Kantons Zurich and, as it was my case, I had to prepare the ICC response to the request of the Zurich Court to explain the decision. What was wonderful is that President Gaudet, Secretary-General Stephen Bond, and General Counsel Sigvard Jarvin made it clear that I was the “point man” and they both expected me to and had confidence that I would figure it out. And so I did with plenty of feedback from them and the other counsels at the time as I prepared the statement. We were successful in having the Court administrative decision to replace the sole arbitrator accepted at the Cantonal and Swiss Supreme Court levels.
Moreover, and this part of the comment was really offensive, offering a black person a job is not about one being perceived as virtuous, just like offering a job to a white person is not about one being perceived as virtuous. It is about giving that person a job. If they do the job and excel, great. If there is a difference between what the job requires and their skill set as they develop, then one finds them a path to another place.
Tying virtuousness to the act of hiring a black person is sickening. C’mon man. Please get real.
- In some (distant) future, he hopes this will change.
This “hope” for a distant future enshrines the lack of diversity now when these leaders have the power to change it in a way that means the current leading practitioner does not have to be more self-reflective about his or her inability to recruit African-Americans or Africans. And, most importantly, these leaders let themselves off the hook by feeling no impetus to change a thing about how all this operates as they sit in their apex positions in the field. In a way, they are asking for those after them to do the change. But, here is the rub, those after them will be the ones that they trained in the way they did which included always looking for and never quite attracting the mythical black unicorn. This artful dodge is really just a reproduction of hierarchy through a further generation with a feeble “hope” of change for those kept outside looking in. C’mon man. Please get real.
- We’re a small group at these top firms.
It is a small place and again the comfort level issue seems present. This view is very ironic in a field that is essentially about the capacity to do cultural gymnastics working with parties and arbitrators from around the world. C’mon man.
- Don’t even think of these people as potential arbitrators.
What is not said struck me: nothing about looking at African-Americans or Africans to be nominated as arbitrators in responding to the question about diversity. Hiring the black unicorn yes but we do not get them. Nominating as an arbitrator the black unicorn who went to work somewhere else? Not even mentioned in the response. Deep. C’mon man.
So let me take up the issue of the arbitrators.
Others have been able to address that issue of arbitrator appointments such as Lucy Reed in her The Math: Caution + Habit + Bias Keynote address delivered at the 15th Annual ITA-ASIL Conference, titled Diversity and Inclusion in International Arbitration,” held in Washington, D.C., USA, on April 4, 2018.
Unfortunately, the math of 1.5 percent African-American lawyers in the premier international arbitration law firms shows that the route to experience in this space for blacks is purposefully a rivulet. And, even if one is in the rivulet, being appointed an arbitrator is like trying to get through the eye of the needle in that rivulet.
In 2021, this is just appalling, but it is what it is.
We can contrast this approach with that of others like Judge Gabrielle K. McDonald, an African-American woman whose experience includes arbitrator at the Iran-US Claims Tribunal and the head of the International Criminal Tribunal for Yugoslavia: federal judge, arbitrator, and head of an international tribunal. When it is posted, people should watch her March 22, 2021 interview with Professor Victoria Shannon Sahani in the Preserving Perspectives: International Arbitrators in Their Own Words series of the Institute for Transnational Arbitration where she speaks with clarity about this issue of diversity
We can also note that the International Council for Commercial Arbitration has a new Diversity and Inclusion Policy which actually mentions race – granted in a long list of diversities – but at least it is mentioned as part of the diversity vision presented. But, given the comments of Professor Paulsson what can we expect if only black unicorns are deemed “worthy”.
International arbitration is a very serious business requiring talent, discipline, hard work, intellect, and a bit of luck. If there was a place where race should not matter, it is in this field. What this means is that in the United States being a white American should not be a prerequisite for an American to get into and prosper in the field.
What I suspect in this lack of diversity is that we are seeing the limits of the imaginations of the leaders of the field. They think of it as a small club. But, the field has easily doubled in the number of cases over the past 20 years as has the size of cases. And, the field is only in its nascent state with respect to the true integration of technology. While those at the top now are digital immigrants, the digital natives below them will take this field to places unimagined. Just like I took the field to international fast track commercial arbitration back in the early ’90s.
I can see a field full of diverse people, but what I do not see in the American part is a field full of Americans of different races. That is appalling in 2021.
Please note that within all the seriousness that is international arbitration, it is fun to work in this field. One does cultural gymnastics every day as one works with persons from around the world on difficult and complex matters under different laws, languages, and places of arbitration. If you have that international bent, there is nothing better. And there are plenty of African-Americans and Africans with a US nexus with that international bent.
C’mon folks. Get real. Use your power for something greater. Wherever you are, insist on making sure that African-Americans and Africans with a US nexus are hired, promoted, and nominated as arbitrators. Not me as I am not interested but there are plenty of black folks as good as or better than the white folks you do hire.
And for those who are stuck in their limits, you are the troubles that I fly over while I think what Bob Dylan said best:
I wish that for just one time you could stand inside my shoes
And just for that one moment, I could be you
Yes, I wish that for just one time you could stand inside my shoes
You’d know what a drag it is to see you – Positively 4th Street, Bob Dylan
So get back in black for, we won’t back down on insisting on African-Americans and Africans with a US nexus getting their shot to change the world.
Benjamin G. Davis, Retired Professor of Law at the University of Toledo College of Law, Ohio.
Suggested citation: Benjamin G. Davis, C’mon Man: Diversity and International Arbitration Slight Return, JURIST – Academic Commentary, April 6, 2020, https://www.jurist.org/commentary/2021/04/benjamin-davis-diversity-arbitration/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
