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<xTITLE>The African Promise</xTITLE>

The African Promise

by Hiro Aragaki
September 2019

Indisputably

Hiro Aragaki

Diversity in ADR is an important topic of late.  For example, it has been the subject of numerous conversations on listservs, at conferences, and between in-house and external counsel.  Providers such as JAMS and the AAA have rolled out key initiatives designed to promote diversity–some of them years before Jay-Z made headlines when he claimed that the lack of qualified African-American arbitrators on the AAA’s LCC panel amounted to race-based discrimination.

Fewer people may realize that diversity is also a topic of great interest outside the U.S.  One example of that is the recent “Africa Promise” circulcated by Dr. Emila Onyema (SOAS University of London), Dr. Stuart Dutson (Simmons and Simmons LLP London) and Mr. Kamal Shah (Stephenson Harwood LLP London).  The Promise is effectively a pledge by counsel, corporate end-users, States, arbitral institutions, academics, and others to “improv[e] the profile and representation of African arbitrators especially in arbitrations connected to Africa” and to promote the idea that “African arbitrators should be appointed as arbitrators on an equal opportunity basis.”  In particular, the Promise asks us 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.

The promise comes on the heels of the SOAS Arbitration in Africa Survey (see my blog post here), which found among other things that that “there is a disproportionate imbalance in the appointment of African arbitrators in international disputes.”  Out of a total of 191 respondents who serve as counsel or neutral in arbitrations, for example, the survey found that 74% felt that Africans are not adequately represented in international arbitrations involving African parties or seated in Africa. Some reasons given were poor regard for and negative stereotypes of Africans as arbitrators, and perhaps even as arbitration counsel. Surprisingly, this bias exists among Africans as well: “Africans,” one respondent explained, “do not nominate Africans for international arbitration. They prefer foreign arbitrators.”

Anyone may sign on to the African Promise, which is available here.  So far the signatories have predominantly been located in Africa but there is no reason why others who are committed to diversity arbitration and fighting implicit bias in neutral selection, no matter in what context or geographic region, should not also sign on.  I hope the African Promise will inspire similar pledges around the world.

Biography


Hiro Aragaki joined the Loyola faculty in 2011.  His scholarly interests cluster around the intersection of contract and procedure.  He has written extensively on federal arbitration law and on interest-based dispute resolution in the public sphere.  His work has appeared in the University of Pennsylvania Law Review, the UCLA Law Review, and the Yale Law Journal Online, among others. His most recent work, Equal Opportunity for Arbitration, was selected for presentation in the Civil Litigation & Dispute Resolution category at the Stanford/Yale Junior Faculty Forum.  In 2011, he traveled to Dhaka, Bangladesh, to train judges and lawyers in mediation and to provide advice on the design of an effective court-connected ADR program.



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