The Diversity Dividend

Abstract

That international arbitration lacks diversity should come as no surprise. In the U.S., modern arbitration owes part of its popularity to the backlash against President Jimmy Carter’s diversification of the federal judiciary. Arbitration may have served as a refuge for those wishing to avoid having their dispute decided by an African American or a woman. With arbitration, parties could avoid the ongoing diversity efforts in both federal and state courts. While there are more African American and female arbitrator candidates than there were forty years ago, diversity efforts are still met with resistance, especially with speed and diversity pitted as competing goals. Through his work on fast-track international commercial arbitration, however, Professor Benjamin G. Davis demonstrated that diversity supports speed: the two are complementary. The creation and replicability of fast-track international commercial arbitration is an example of a dividend that was made possible by a moment of diversity, inclusion, and equality at the International Chamber of Commerce (“ICC”). It is also a story that invites one to consider what international dispute resolution might be like if, in 1991, the ICC had had policies or practices that excluded people on the basis of race. Likewise, it invites one to consider what international alternative dispute resolution might look like now, if racial inclusion efforts had begun for more institutions, more intensely, years prior. The fast-track international arbitration story serves as a reminder that diversity has paid dividends in international commercial arbitration and can do so in the future.