ICC Canada Arbitration Committee Annual Conference 2022
Including the World: Achieving Equity, Diversity and Inclusiveness
Saumya Augustine*
October 21, 2022 was the final day of CanArb Week 2022, and what better way to end off than the ICC Canada Arbitration Committee Annual Conference?
Including the World: Achieving Equity, Diversity and Inclusiveness
Introduction
The panel was moderated by Todd Weiler (Independent Arbitrator, Arbitra International), who is a member of ICC Canada’s Diversity Committee and Co-Chair of the ICC Task Force on Disability Inclusion and International Arbitration. The panelists were: Nancy Thevenin (General Counsel, US Council for International Business), Dana MacGrath(Independent Arbitrator, Arbitra International), Dr. Ayodele Akenroye (FCIArb, Independent Arbitrator), and Hon. Clément Gascon (Woods LLP; former Justice of the Supreme Court of Canada,).
Weiler began by posing some questions to the audience to gauge their opinions about the level of diversity in the arbitration field. Through raising of hands, the following opinions were expressed:
- Word of mouth is still typically the go-to method of identifying arbitrators;
- They do not rely heavily on online arbitrator directories;
- It would be helpful to have access to resources such as online directories with information about prospective arbitrators;
- Diversity has not been achieved in arbitration generally;
- Arbitration panels at conferences are generally diverse, or at least more so than the profession as a whole;
- Diversity in terms of gender equality has possibly been achieved;
- Diversity in terms of race and national origin of arbitrators and practitioners has not come close to being achieved; and
- Diversity in terms of mental and physical disabilities or neurodiversity has not been achieved.
Weiler then proposed three possible justifications for further efforts to boost diversity: it satisfies a moral obligation, it is in compliance with anti-discrimination laws, and it is good for institutional decision-making. When asking the audience which reason they preferred, they almost unanimously chose the final reason—that diversity is good for institutional decision-making.
Panelist: Nancy Thevenin
Weiler introduced Thevenin, who started off the next part of the panel. She explained that she works with ICC USA and helps with the nomination process for arbitrators. After practicing in Florida for seven years, Thevenin joined the ICC in New York. She noted that when she was in practice, she rarely had the chance to nominate or consider ethnically diverse arbitrators; further, the field was quite male-dominated. Companies did not want to risk having anyone they did not know or were unfamiliar with, which exacerbated the problem.
Thevenin was part of the movement to help bring more women into the field of arbitration. She stated that there has been progress in terms of gender, but not so much with ethnic and racial diversity—an issue that’s becoming an urgent problem in the US. Joining ICC gave Thevenin a unique opportunity to make a difference, as the environment was more conducive to uplifting diversity.
She found that ethnically diverse people were barely being nominated or chosen as arbitrators. At the USCIB, she helped create a task force focused on diversity, equity and inclusion (DEI) in arbitration. The task force focuses on the acute and immediate need to diversify the field in more senior levels, and on opening doors for junior levels and for law students by creating a pipeline to bring more people into the field. They focus on providing more opportunities to nominate arbitrators, to ensure that diversity is at the forefront from the very beginning of the process.
Thevenin also stressed the importance of legitimacy in terms of diversity. She stated that if we are truly a global village, more people who do not look like each other will get involved. If they keep seeing people who do not look like them, the legitimacy of arbitration will be called into question.
She explained this concept using the example of the Jay-Z case. Jay-Z, a famous rapper and artist, was involved in a complex commercial dispute over trademarks to his Roc-A-Fella clothing brand. The contract contained a AAA arbitration Agreement. The AAA provided a list of possible arbitrators, and Jay-Z complained that initially one of the 200 arbitrators listed were African-American. The AAA later provided a list of four possible African-American nominees, but these were unsuitable for various reasons. He and his lawyers argued that they needed to appoint an African-American arbitrator who would understand the unique perspective of their business and the role of hip-hop culture in the African-American clothing market. A court in New York took the complaint seriously and scheduled a hearing on an injunction against the arbitration proceeding, but the AAA finally provided an appropriate list of nominees, and the parties settled. Thevenin explained that if arbitration is going to be consensual, it needs to be fair and there need to be people who represent one of the parties in terms of diversity. Although some people may think that the argument raised was simply a tactic by Jay-Z’s lawyers, Thevenin noted that if it did not have merit, the judge would not have entertained a stay. It brought into question why there were not more African-American arbitrators. Without a sufficient diversity of qualified arbitrators from whom parties can choose, diverse parties will be deprived of the opportunity to nominate arbitrators with the characteristics they deem important.
Panelist: Hon. Clément Gascon
Justice Gascon continued the conversation, and stated that he wanted to share his experience and the approaches of the federal judiciary, where they have seen the exact same issues in terms of diversity. He stated that focusing on DEI is the right thing to do, no matter the reason. However, the challenge is in figuring out how to get the proper result.
For Justice Gascon, three factors come to mind. The first one is the triggering factor: making a place for DEI in the judiciary in Canada has been triggered from pressure from the user. At some point, society has pressured the judiciary to come to grips with the reality of society in terms of its gender and ethnic diversity, among other factors. The second factor is the critical factor, which focuses on bringing the idea to realistic change and ensuring that positive steps are being taken by the institution. The final factor is the hidden factor, where it takes leadership to actively implement DEI.
Panelist: Dana MacGrath
MacGrath turned the discussion toward the role of organizations in the arbitration space in promoting DEI. She first spoke about ArbitralWomen, which is focused on raising the external visibility of diverse talent. By using technology and their communications platform, they have been able to spread the word about talented diverse women in the arbitration field. They have especially been focusing on helping the younger generation of female arbitrators. Arbitral Women has a searchable database on their website, from which one can filter for diversity and other qualifications when looking for arbitrators.
Other initiatives include the Equal Representation in Arbitration Pledge, which aims to increase awareness of the need to promote women and diversity in arbitration. They have national committees around the world, which help facilitate networking among diverse candidates. They also have an Arbitration Search Committee, which will respond to requests specifying various criteria and suggest diverse arbitrators who fulfil those requirements. A similar organization exists for expert witnesses, the Equal Representation for Expert Witnesses Pledge (ERE). MacGrath explained that in her practice she often saw a male testifying expert, whereas the supporting team often included women The ERE focuses on increasing the number of women in leadership roles.
Finally, MacGrath discussed the Racial Equality for Arbitration Lawyers (REAL), for which she was the strategic advisor. REAL launches in January 2021 with the twin goals of increasing the awareness of underrepresentation in the arbitration field, and increasing access to the arbitration community. Access has been addressed thus far through scholarships, which have been afforded to those involved in REAL. MacGrath explained that access at the early stages of one’s career leads to more doors opening, and thus leads to more inclusivity.
Panelist: Dr. Ayodele Akenroye
The final panelist to speak in the discussion was Akenroye. He expressed appreciation for the macro-level work described by Thevenin and MacGrath, and chose to focus his discussion on the micro-level work—particularly on identifying unconscious biases and how they impact decision-making.
Akenroye spoke from his lived experience as a visible minority, moving to Canada and re-building his career after initially qualifying as a lawyer in Nigeria. He told an anecdote from his articling days in Winnipeg, where he was connected with a lawyer from another firm who worked in a niche area of law in which Akenroye was interested. After spending time working there, the lawyer told him that the firm could not hire him as an associate. Akenroye went to the firm he articled with, and they were unable to hire him, either. He later learned that they did not hire him because were concerned that clients would not want to deal with a lawyer who spoke with an an accent. This one decision ended up putting Akenroye back 2-3 years in his career. He stated that this was an example of the economic cost of not paying attention to diversity. He explained that although everyone has an accent, although some accents are more accepted than others. What really matters is ability to do the work.
Akenroye then shifted to the importance of data collection for DEI. It is necessary to determine how many people of colour are being appointed to tribunals, or speaking at conferences, for example. We should not guilt-trip people about diversity, as it is a slow process of gradual improvement.
Q&A
The panel then opened the floor to questions from the audience. One audience member expressed concern that when diverse arbitrators are appointed, it is often for cases with parties from the same place of origin, which risks the arbitrators being pigeon-holed.
Thevenin answered saying that this is a real concern. However, in some cases, such as the Jay-Z case, the party specifically wanted an arbitrator who would share their cultural perspective—and they have the right to request that. Thevenin emphasized that we need to be intentional with respect to DEI, to make sure that people know that there are diverse arbitrators out there. Akenroye jumped in and stated that diverse arbitrators need to be more visible, but we should also be having conversations to ensure that people are comfortable with everyone—not just arbitrators who look like them.
Weiler concluded by thanking the panelists for their insights about diversity and inclusion in the field of arbitration.
* JD Student, Queen’s University Faculty of Law; Co-Editor in Chief, Canadian Journal of Commercial Arbitration.