In July, as part of its Cocktails and Conversations webinar series, JAMS brought together industry leaders to explore concrete ways to promote diversity and inclusion in international arbitration.
Mark Smalls, senior vice president, CMO and chair of the JAMS Diversity Committee, recently continued the conversation with Amanda Lee, an international arbitrator and founder of Careers in Arbitration. They discussed Lee’s idea of creating an arbitrator shadowing protocol (ASP).
Mark Smalls: What is the idea behind the arbitrator shadowing protocol?
Amanda Lee: The idea is to create a system by which arbitral institutions nominate aspiring arbitrators to shadow or observe arbitral proceedings, affording them an opportunity to observe the inner workings of a tribunal. Institutions that adopt the ASP would apply a common set of rules governingarbitr the shadowing scheme.
The ultimate purpose of the ASP is to facilitate the development of a cohesive network of global opportunities for the next generation of diverse arbitrators, enabling them to gain sufficient practical experience and exposure to the role of arbitrator.
Mark: Why is creating a common protocol for arbitral institutions to follow so crucial?
Amanda: Right now, parties are—understandably—often unwilling to take a chance on an untested arbitrator, and institutions are reluctant to put their reputations on the line and appoint someone without experience. Of course, without appointments, new arbitrators can’t gain experience. So it’s crucial that the arbitration community take steps to encourage the next generation of young and/or diverse arbitrators and develop ways of addressing the “chicken and egg” experience problem.
Mark: What about informal shadowing opportunities?
Amanda: The availability of ad hoc opportunities to shadow a tribunal is typically dependent on whom, not what, an aspiring arbitrator may know. That means that aspiring arbitrators from established international law firms based in major arbitral seats are likely to have the greatest number of opportunities to develop contacts that will permit them to shadow arbitral proceedings. The result is that aspiring arbitrators from less traditional backgrounds and those based outside major arbitral seats are less likely to have such opportunities. This is unfair.
Mark: The ASP hinges on the support of arbitral institutions. Why are they so important in the process?
Amanda: They’re responsible for appointing a significant number of arbitrators, and they play a key role in administering arbitral proceedings. So engaging arbitral institutions in the shadowing initiative can create the most opportunities for aspiring arbitrators to gain practical exposure. The key is to build the shadowing scheme into the process of administering arbitral proceedings and normalize observation by aspiring arbitrators.
Mark: How would the protocol work?
Amanda: Arbitral institutions would commit to appointing a shadow arbitrator to any suitable proceeding where the parties make no objection to such appointment. That may mean amending institutional rules to provide for the automatic appointment of a shadow arbitrator absent any party objection.
Mark: What kinds of reporting requirements would you like to see?
Amanda: Institutions should make their appointment process transparent. They should maintain records of shadow arbitrators appointed and the basis for their selection. Such data should be shared to demonstrate how the scheme is operating and to enable institutions and the international arbitration community to evaluate its success.
Mark: What concerns could parties have regarding including shadow arbitrators in their matters?
Amanda: Parties may have confidentiality concerns. They need to be satisfied that in no circumstances will non-public information be disclosed. Arbitral institutions may need to develop appropriate methods by which shadow arbitrators access the record and correspondence relating to their proceedings. Email may not be sufficiently secure, for example. Shadow arbitrators would have to maintain confidentiality. Other safeguards may include conflict checks.
Mark: What kind of support do you hope the ASP will get from law firms and other employers?
Amanda: I hope they would recognize the benefits of arbitrator shadowing, and the insights into arbitrator decision-making that it would provide, in the same way that judicial clerkships are prized and valued. And I hope they would support any qualified employee who wants to participate in arbitrator shadowing.
We all benefit from diversity in decision-making, so developing arbitrators from a broader range of backgrounds is in everyone’s interest.
Mark Smalls is senior vice president and chief marketing officer at JAMS. He oversees marketing and communications strategy for the company globally and provides leadership to the managers tasked with business development responsibilities. His extensive marketing background includes advertising, branding, market research, public relations, website development and online marketing. Mr. Smalls currently chairs the JAMS Diversity Committee and serves on the JAMS Foundation board.
Amanda Lee is an arbitrator and consultant at Costigan King. Her practice focuses on disputes arising from the automotive, hospitality and recycling sectors. She founded Careers in Arbitration in 2019 to make opportunities in the field more accessible. Ms. Lee is a member of the board of ArbitralWomen and an ambassador for REAL (Racial Equality for Arbitration Lawyers). She serves on the advisory board of the Indonesia International Arbitration Center and the ICDR Y&I Global Advisory Board.