International arbitration does not lack critics. A particularly common criticism is the absence of cultural and ethnic diversity among arbitrators. In the words of Sarah François-Poncet of Salans, some twenty years ago, the usual suspects are 'pale, male, and stale'. Despite numerous initiatives to support and encourage diversity, and the diversification of the pools from which candidates are selected, there is still much progress to be made. The problem is particularly acute when it comes to African arbitrators.
Indeed, a few months ago, in a trademark and contract dispute with clothing company Iconix Brand Group Inc., African-American rapper and entrepreneur Jay-Z complained that only three of the more than 200 arbitrators on the American Arbitration Association’s Large and Complex Cases database identified as African-American, leaving him with “no choice at all” to appoint a candidate. Jay-Z’s counsel held that the lack of ethnic diversity deprived litigants of color of a meaningful opportunity to have their claims heard by a panel of arbitrators reflecting their backgrounds and life experience, which would constitute unconscious racial bias and would in fine void Jay-Z’s agreement to arbitrate.
In parallel, London University’s School of Oriental and African Studies (SOAS) published its Arbitration in Africa Survey – Domestic and International Arbitration: Perspectives from African Arbitration Practitioners. The survey reveals that, although African disputes are well represented in international arbitration, the same cannot be said for African arbitration practitioners, whether as counsel, arbitrator or tribunal secretary. This raises concerns, particularly among African arbitration practitioners. The SOAS survey concludes that the top three reasons for the under representation of African arbitration practitioners in international arbitration are:
- poor perception of African arbitration practitioners (by their foreign colleagues) as lacking in expertise and experience;
- bias by appointors in favour of foreign counsel and arbitrator; and
- Africans not appointing fellow Africans as arbitrators.
Following Jay-Z’s complaint and the survey, Dr. Emilia Onyema of SOAS and other arbitration practitioners have circulated “The Africa Promise“, a pledge by counsel, arbitrators, representatives of corporates, States, arbitral institutions, academics and others. The Africa Promise has two general objectives:
- to improve the profile and representation of African arbitrators; and
- to appoint Africans as arbitrators, especially in arbitrations connected with Africa.
In particular, The African Promise encourages participants in the arbitral process to ensure that, wherever possible:
- committees, governing bodies and conference panels in the field of arbitration include a fair representation of Africans;
- in arbitrations connected with Africa lists of potential arbitrators or tribunal chairs provided to or considered by parties, counsel, in-house counsel, arbitral institutions or otherwise include a fair representation of African candidates;
- States, arbitral institutions and national committees include a fair representation of African candidates on rosters and lists of potential arbitrator appointees, where maintained by them;
- where they have the power to do so, counsel, arbitrators, representatives of corporates, States and arbitral institutions appoint a fair representation of African arbitrators especially in arbitrations connected with Africa;
- statistics for nominations and appointments (split by party and other appointment) of African arbitrators especially in relation to arbitrations connected with Africa are collated by arbitral institutions and made publicly available; and
- senior and experienced arbitration practitioners support, mentor/sponsor and encourage Africans to pursue arbitrator appointments and otherwise enhance their profiles and practice.
Herbert Smith Freehills is an enthusiastic supporter of initiatives that promote a more diverse and inclusive arbitral community, including in matters relating to the African continent, such as AfricArb.
In support of this initiative, Herbert Smith Freehills encourages all stakeholders who are committed to making a difference to sign The African Promise (available here) and to remain committed to the cause.
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