Reading Time: 19 minutes
Publication Date: 1 June 2023
INTERVIEW WITH
Jose Angelo (Anjo) David
Hometown: Metro Manila, Philippines
Professional Admission: Philippine Bar
Current Location: Washington D.C., U.S.A.
Current Position: Foreign Associate, GST LLP
Table of Contents
Education
Arbroad: Hi Anjo, welcome to Arbroad! As a Filipino-qualified lawyer, your path towards becoming a lawyer is quite long: four years each for your bachelor’s degree and Juris Doctor (J.D.), plus about six months each for the bar preparation and waiting for the bar results. Taken together, it’s almost nine years. You met lawyers from different jurisdictions, some of whom probably spent significantly less time to become lawyers. Did you ever feel that the path that you took was unnecessarily long?
Anjo: It’s true that in the Philippines it takes nine years to get the bar license (law degree and the license). If compared to, for example, the U.S., maybe it’s not that different – in the U.S. it takes a year or two less. So we can say that more or less the U.S. and the Philippines’ experiences are similar.
During my LL.M. year, I of course met people from different jurisdictions. Some of them obtained their law degrees as their first degree. While I had to do Political Science (as my pre-law degree) for four years before taking my J.D., students in other jurisdictions could go straight into law school.
There are pros and cons to this system. Let’s start with the disadvantages of having a long study period. Obviously, as a person ages, they would just prefer to be more stable, to be able to achieve some other personal milestones. You may feel like you’re too old to be doing master’s or to shift to a different profession. This was something that I had to consider because I did my master’s degree five years after I graduated from law school in 2014. But others, if they come from jurisdictions with a shorter law degree program, they would go into the LL.M. program much younger than we do coming from the Philippines.
At the same time, I would say that the advantage of getting that type of degree program and then working a few years as I did, it really helped me to assess what I wanted to do. I could compare it with some of my classmates, who went directly from their undergraduate law degrees into their master’s degree. Some would tell me that they were not sure if that’s really what they wanted, if they chose the right field. This may be because they haven’t experienced a lot in terms of being in practice.
If you ask me, though, in hindsight, would I change anything about the Philippine legal education? I would say that the J.D. program contained a lot of subjects that I never was engaged in, even when I was practicing in the Philippines. Perhaps, the goal would be to find a middle ground, for example allowing the students to take some elective courses. Overall, I would not say that my law track was unnecessarily long. I would just say that there were some aspects of it, some courses that were unnecessary in the sense that a person wouldn’t be able to practice all of them in the first place.
Arbroad: You earlier mentioned that you took Political Science as your undergraduate degree. Why did you choose Political Science as a pre-law degree and how does this degree help you in your career as an international lawyer?
Anjo: In terms of choosing Political Science as my undergraduate degree, I would say it was a mix of factors within my control, and others, more circumstantial. Upon graduation from high school, I think it was hard to definitively say that I knew what I wanted already. Growing up, my parents also said that I could take Political Science as it was a good pre-law degree. So, this was shaped by a lot of things, shaped by experiences, family. In the end, the only choices for me were pre-med and pre-law degrees. I ended up choosing Political Science because I was primarily interested in the liberal arts in high school, and I felt that I would be using my skills more to my advantage if I started out there.
In terms of my Political Science background – was I ever able to apply it? I would say that, to a certain degree, yes. The courses that I took during this degree were primarily about political systems, political institutions, and international relations. I’ve always been curious about these topics. And then going to law school, I noticed that the courses that I liked the most were those related to international law and the constitutional law in the Philippines, the structure of the government, and administrative law. Eventually, that led me into what I’m doing now – my primary practice is investment arbitration. Here, the ability to understand how each government works and understanding the nuances of those administrations are essential.
The Oblation Plaza at the University of the Philippines [HomerSingson, CC BY-SA 3.0]. Anjo obtained his Bachelor’s degree in Political Science from the University of the Philippines.
Arbroad: During your legal studies at San Beda University, you were trained using the Socratic method, which is used in almost all law schools in the Philippines. As you did your LL.M. in the U.S., you now also have a first-hand experience of the Socratic method in the U.S. Since arbitration proceedings are adversarial, do you think it would be best for the universities to adopt the Socratic method in teaching arbitration courses?
Anjo: I would say that it really depends on the course. When I was doing my Master’s here in the U.S., I did take, for instance, some courses that were more skills-based, as opposed to theory-based courses. For the skill-based classes, we did have cross-examination simulation, for instance. That really helped. I think the benefit of having a Socratic method there, even in a course devoted to enhancing your skills, is that it gives you some kind of system to identify your flaws. These are the things that you need to watch out for when you are doing a cross-examination, an opening argument, a direct examination, or even writing a pleading.
In terms of other courses, I would say that the Socratic method allowed me to be more wary about identifying issues in a case. But the Socratic method, because it is restrictive, also has its own disadvantages. One of them is that sometimes the professors would be so restrictive that they don’t get to impart to the students the skill of being a good advocate by looking at the issue from different perspectives.
I think that a balance must be struck. Professors should be able to bridge that gap. Professors must ensure that the students learn that skill of advocacy, of looking at different sides of cases and crystallizing the issue, and then allowing the students themselves to formulate the issues of the case. Because my belief is, especially now that I’ve been practicing since 2014, sometimes a case is won not so much on the evidence you have, but because of how you frame the issue in a particular case.
San Beda University in San Miguel, Manila, Metro Manila [Urban Roamer, 2018].
Arbroad: The Philippine bar examination is notorious for being extremely difficult. Prior to the pandemic, its average passing rate was only about 20 to 30%. In your view, is it still worth the time and effort for Filipino law graduates, whose intention is to eventually work as international arbitration practitioners, to take the Philippine bar exam? Or do you think that it would be better for them to just take bar exams in other jurisdictions, like New York for example, since the graduates can take the New York bar without a U.S. law degree?
Anjo: First of all, if we are talking about international arbitration, it’s not really tied to any particular jurisdiction. For instance, I’m not qualified in New York and yet I am able to practice international arbitration because I’m not dispensing advice on U.S. law, New York, D.C., or any other jurisdiction here in the U.S.
If I may deconstruct the question further: do we need a bar for the purposes of international arbitration? One may arrive at the conclusion that the answer is yes. First, because being qualified in a certain jurisdiction, for instance in the Philippines, allows us to talk to our potential clients and say that, if they do have any need relating to the Philippines, we would be able to appear there in courts. So that’s one practical and concrete advantage of that.
Secondly, as for a more specific question about the way the bar exam in the Philippines is structured – is it responsive to the needs of an aspiring international arbitration practitioner? My answer would be no. Because again, the bar structure is making you take all of the courses, labor law, IP law, etc., which might not be necessary for practicing international arbitration. Given that, perhaps, the Philippine legal education should be able to entertain the idea of allowing a student to take an exam tailored to a particular specialization. Medical doctors, for instance, have to take a certain number of years of residency and then take another exam for that particular specialization. I think lawyers should be able to do that. If you want to do international arbitration, then maybe there should be an exam for that. Some institutions (like CIArb) already offer certifications in international arbitration.
Arbroad: After several years of working in the Philippines, you did your LL.M. at Harvard. Why did you think it was necessary for you to do an LL.M.? And why at Harvard?
Anjo: To give our readers a background, I worked for the Philippine government, specifically in the Office of the Solicitor General. Most of the work that we were doing, I would say like 60-70%, was constitutional law, constitutional litigation, some civil cases, some criminal cases. And then maybe a good 10% of international arbitration. Even in constitutional litigation, there were some aspects of international law.
There is an arbitration practice in the Philippines, but right now it’s mostly domestic. In the Philippines, when I was working for the government, I had the pleasure of representing it in investment arbitration and litigation, and at least one international commercial arbitration. So yes, I was able to practice international arbitration, but it was very limited because at the end of the day, we had foreign counsel anyway. They, in turn, would need your assistance for more Philippines-specific questions. So I would say that you’re in the back seat of international arbitration practice as opposed to being the ones who are doing it. There are some changes now. To my knowledge, the Philippine government is now having one or two cases which they are doing on their own without the assistance of foreign counsel, and I think that is a good development.
When I did my Master’s, it was initially not my intention to work abroad. It was my intention to go back to the Philippines and use whatever it was that I studied at Harvard for the benefit of the government, or to form my private practice. It was only after one semester at Harvard that I took an arbitration course, and then in the second semester I was taking another one and I realized, “You know what? This is something that I would want to do and that I would really want to practice.”
So, my thinking was, if I go back to the Philippines, I wouldn’t be able to experience international arbitration the way that I understood it from my Harvard courses. I think that was the turning point for me. With a student visa, you get one more year of Optional Practical Training. I thought, “Okay, why not try it for a year?” Eventually, I just fell in love with the practice of international arbitration.
Why Harvard? For many practical reasons. The first among them was that they gave a generous mix of financial grant and financial loan, as compared to other law schools in the U.S. Second, I initially wanted to take more constitutional law courses. The Philippine Constitution was inspired largely by the American Constitution and I wanted to do a comparative analysis of them, which eventually was my paper before graduation. I also wanted to take international law courses, and Harvard offered a good international law program. I thought that going to Harvard, focusing on constitutional law and international law, would give me that kind of credential and credibility regardless of whether I went back to the Philippines or moved to the U.S.
Harvard Law School Library in Langdell Hall [Chensiyuan, CC BY-SA 4.0].
Arbroad: What was your favorite course at Harvard? And what is your most memorable lesson from it?
Anjo: I would say that my favorite subject was Contemporary Issues in International Investment Arbitration with former ICSID Secretary-General Professor Ko-Yung Tung. This course was the most memorable to me as well, not only in terms of the material, but also because of the interaction with my classmates. It was a good mix of LL.M. and J.D. students, and I saw different perspectives. That was an eye-opening experience for me to see the perspective of people coming from developing countries, from more developed countries, from different racial backgrounds, from different gender backgrounds. Whenever we were discussing one or two particular issues for every day of the course, that unlocked for me the curiosity for this fascinating field.
Arbroad: If a foreign lawyer is coming to Harvard for LL.M., what is the one thing they shouldn’t miss out on?
Anjo: The lobster rolls and clam chowder come from Boston [laughing]. But aside from these two things that I miss, I would say that they shouldn’t miss out on establishing long-standing relationships with their peers. I do maintain friendships, professional relationships with some of my classmates, be it from international arbitration or outside of the field. It has helped me to just open my mind to more than what I experienced or knew from the Philippines. That kind of openness, open-mindedness, further seals my determination, my commitment to this field.
Arbitration practitioners only come in when a dispute happens anyway, as opposed to, say, policy makers or many practitioners who are always at the forefront of the field, who try to shape the industry. When you make a contract, you try to put some details in it, try as much as possible to avoid a dispute, and then a dispute happens. Engaging in a discussion with these lawyers helps me understand the way the problem happened. Perhaps there’s a certain language in the treaty or in the contract that they could have added, deleted, or changed, that would have prevented the dispute. That kind of engagement at the professional level is very enriching, as much as the personal relationships that I have with my classmates from Harvard. Some of them remain to be my good friends and we meet once or twice a month to catch up because, you know, we have shared experiences not just as classmates but as immigrants as well. So if there’s one thing that I would do again in Harvard, all things being equal, that would be maintaining good relationships.
Career
Arbroad: After briefly being in private practice in the beginning of your career, you worked as an Associate Solicitor at the Office of the Solicitor General of the Philippines. Could you share with our readers some insights on working as a litigation lawyer in a governmental body?
Anjo: To begin with, it was challenging. The way that people think of the government is that it’s a monolith, it has its own mind – but no, not really. You work with different people, different agencies; they have different interests, some of them competing with each other, some of them competing with yours as a government lawyer. Some of them are even competing up to the President level or the national level. So there are many tensions you have to balance. Of course, certain restrictions also apply, for instance, the opinion of your seniors. So this balancing exercise was one of the most challenging parts of it.
Another challenging part of this job was geographical. The Solicitor General’s Office in the Philippines is not divided into particular regions. It’s all based in Metro Manila. But we work in different parts of the country, and there are more than 7000 islands. Obviously not all of them have courts. But in terms of having to travel, it is a problem, because aside from the Philippines being an archipelago, there is also a variety of languages. Sometimes, for instance, I would go to a particular city where I don’t speak the vernacular; the locals do speak English, they do speak Filipino, but they prefer speaking the vernacular. This is something that was a struggle.
Another big challenge is trying to make sure that, as a lawyer, you separate your own personal opinions, trying to balance them with the interests of the administration that is currently in power. That’s one thing that really changed me when I was in the government. When I came in, I had been appointed to the position of Associate Solicitor under one administration, and then a few months later I worked under a different administration. I saw that there were differences in opinions. Your ability as an advocate to separate yourself, to be more clinical about a certain case you may have a strong opinion about, is important. At the same time, if you are able to hurdle that, it does help you think of issues that other people might not see or identify.
At the end of the day, it was fulfilling because you do know that you are working for the government, you get to say in court, “I am Jose Angelo David, appearing on behalf of the Republic of the Philippines” or “of the People of the Philippines.” You feel like you can contribute even a small thing for your own country or for other people in cases that matter to them.
Makati City, Metro Manila. The Office of the Solicitor General, which is the “law firm” of the Republic of the Philippines, has its headquarters in Makati City.
Arbroad: Once you have completed your Master’s degree at Harvard, you made a new step in your career working now for GST LLP in Washington D.C. Was it difficult to secure a position at an American law firm as a foreign-trained lawyer, or are Harvard LL.M. graduates “sold like hotcakes” in the U.S. legal market?
Anjo: I thought it would be easier [laughing]. But it was not. First, I think the U.S. employers are primarily interested in J.D. graduates because of the dictates of the market. I hope it changes. When I was applying, some positions would really say: “J.D. is required.” This means that regardless of which school you come from, Harvard or any other university in the U.S., even if you are the top student in your LL.M. class, you just wouldn’t get the opportunity.
Second, Harvard LL.M. is a generalist program. So, you have that extra step, the hurdle of having to prove that you are really interested in a particular sphere of law you want to work in, at the bare minimum. Then also, show that you have the skills in international arbitration. Often that could be shown by a good transcript, and, obviously, the experience that you had from before. So I wouldn’t say that Harvard per se makes it easier for you to get a job. I think that it is very important to try to figure out already as early as you apply for different schools, what you want to do with your degree. And if you don’t get that, will your degree still give you the flexibility, given what you will study on that program?
As for the experience of getting a job here in the U.S., let me start by saying that when I applied for a job, it was under abnormal circumstances of the pandemic. Before the U.S. shut down, I went to a couple of interviews. Some of the firms said that they were interested and were moving me to another interview round. Then the pandemic hit. Nothing. Silence. No emails, no responses to my emails. Some firms ultimately said that they were not hiring anymore because of the pandemic. So that was a struggle. There were even one or two people who I knew whose offers were rescinded because of the pandemic.
There are some jobs that are more flexible and more open to LL.M. students, especially when it comes to international arbitration. I think that the foreign lawyers should take advantage of that. Include in your top one priority those firms or those opportunities that do not discriminate between J.D. students and LL.M. students. You wouldn’t want to be wasting your time preparing for interviews with employers that just won’t give you that opportunity. Hone your resume, hone your credentials more, because you do know that to a certain degree you are competing with other people from your LL.M. class and other LL.M. students from the U.S. Try to get noticed.
For instance, my job. Around May or June 2020, there was this program at the Columbia Center for Sustainable Investment at Columbia University. This was a training for investment arbitration, and I participated. There were maybe three or four firms that participated, and one of them was GST. At the end of the training, there was a mock arbitration, and at that point at the start of the pandemic, it was a Hail Mary. I decided that I would just participate in that mock arbitration. If I do get a job from it, good. If I don’t, still good, I got to participate in the experience.
After the mock arbitration, I just sent out emails again saying, “Dear [whoever], I am aware of the current economic situation, I don’t know if you have any openings,” – because I looked at their websites and there weren’t any openings – but I said, “If you are interested, I would like to send you my resume, a writing sample, and perhaps we could schedule an interview.” I took that step, and it worked out. I was able to get a job at GST.
If anything, I guess the lesson or tip is… do something that will show your future employer that you are worth employing. Because at the end of the day, you have to remember that this is a market. They are hiring because they think that you’re responding to a certain business need. And if you are able to package yourself – obviously with the right credentials – as someone who can address that business need… I think this increases your chances of being hired. Just take a leap of faith.
Capitol Hill, Washington, D.C., U.S.A.
Arbroad: You work in a boutique law firm, dealing exclusively with the matters of international law. However, some graduates want to pursue a career in ‘big law’ firms. What’s your view on comparisons between boutique law firms and ‘big law’ firms in the U.S.?
Anjo: Being in a boutique law firm – because they are composed of a few individuals unlike in big law firms – you can really get into the nitty-gritty of a case.
When I was starting on the job, the first few tasks I was assigned to do were research memos. It wasn’t really writing a pleading yet. I guess the reason for that was because the firm wanted to assess my research and writing skills, as they had to establish some baseline. Then, after one or two months, they made me write pleadings already. It started as one or two sections in a 200-page pleading. Eventually, a few months in, they would ask me to write an entire pleading, to second-chair in a hearing, to prepare the speeches, to prepare their rebuttal arguments. I don’t know if that’s something that happens in a big law firm. But based on what I know from my friends, the learning curve is different because you have more people in a big law firm. You get to rely more on more senior people for those kinds of tasks as opposed to those who are starting out. This might be different as well because of my previous experience – I was already writing pleadings and conducting witness examinations back in the Philippines.
Another difference being in a boutique law firm is that it has really encouraged me to put myself out there even more in terms of academic conferences and writing. Being a part of a boutique law firm, you’re in a small group and you want to get noticed so that you gain a better presence in the market, so that you establish your name even further as part of your firm and as an individual. You have that extra motivation to get yourself published, to learn more about the field. Again, I don’t know what the answer is for big law firms. I do know, though, that some big law firm associates also engage in writing because that would be tagged as some kind of non-billable work in addition to billable work they do for their clients. But to me, not having to think, “Okay, I need to write because it’s something that I need to bill” – it’s liberating. I get to write because I want to write something, because I really want to think about these issues.
The third difference would be, I would say, being able to work with fewer individuals. This is more of a structural thing. You get to really know your colleagues not just as professionals, but as individuals. You get to talk about their backgrounds. You get to talk to them about their work. You get to talk to them outside of work. It becomes more and more personal. Obviously, there are some pros and cons to that because you don’t want to be too personal with your colleagues. At the same time, being able to know what they can and can’t do or do or don’t want to do – it helps you to improve your relationship with them for purposes of work and outside of work.
Arbroad: Apart from your career in a law firm as a legal practitioner, you also have an impressive record as a law professor. How do you manage to handle your professional role as a foreign lawyer in the U.S. and your academic activities?
Anjo: I would say that my work takes priority, obviously, over my other more academic or professional engagements. And the beauty of international arbitration is that you get to know your schedule in advance. You have it laid out for the entire year or two.
I would say, another important factor is my level of interest at any given moment. Sometimes I would build up my academic work or my “engagement” on an issue that I’m working on for work, for my cases, save for confidential details of a case. There are some issues that you can isolate and work on from an academic perspective. That’s how it gets to complement my work and my academic engagements and vice versa. For instance, there was a time when I was working on a case – this is public anyway – and it was an annulment proceeding. An annulment proceeding at the ICSID means that generally no new evidence is allowed, but we were able to get and convince the tribunal to admit new evidence. At the same time, in a forum that was presenting for the Young Institute of Transnational Arbitration (Young ITA Global Forum), I sat as a regional delegate for Asia and I submitted that issue for discussion.
Being in that forum helped me to understand issues that I never saw before, because I was focused on them as an advocate. But participation in a forum just helps you to open up your mind to other perspectives. This can enrich you then on how you address your own case. You see the loopholes and the gaps in your own argument. That’s another life-hack that I would like to impart. If you’re working on a case in practice, try to mirror that in your academic engagements.
Racial Diversity in Arbitration
Arbroad: Earlier this year, we had an interview with Laura Halonen, and she told us that she wishes for the discussion on diversity in arbitration to start taking the next steps, as before it had been more often centered on gender diversity. Would you agree with that? And if so, why do you think the arbitration community often fails to look beyond gender diversity?
Anjo: I wouldn’t say that gender diversity and racial diversity are mutually exclusive. They intersect. We should be able to address them together, not separately, and, perhaps, there are other aspects of diversity that we may want to look into. In terms of disability, for instance, making arbitration more accessible as a field.
In terms of racial diversity, I do agree that there is a need to open it up more to people who look like us, who come from different backgrounds, from different ethnicities. One may want to have racial diversity as a means to a certain end. And I don’t necessarily disagree with it. For instance, some would say, “We need it because we want to open up different perspectives in international arbitration.” This will perhaps aid in increasing the quality of decisions, in making sure that the arbitrators know the different interests, the competing concerns of the people who appear before them.
The only difficulty about it is that it’s hard to measure. How does racial diversity really increase the quality of awards and decisions? How do we even measure the quality of an award? So I would talk about racial diversity not as a means to a certain end, but because racial diversity in and of itself should be the norm.
For instance, in the context of investment arbitration, specifically in the ICSID, let me go over the statistics very quickly. So far, there have been 910 cases registered before the ICSID applying the ICSID Rules or the Additional Facility Rules. Cases from Western Europe account for 8% of the entire caseload of the ICSID. Arbitrators, conciliators or annulment committee members who are of Western European origin or nationality account for 46% of that composition. Imagine the disparity: 46% of arbitrators – I just call them arbitrators in general, but that includes conciliators and annulment committee members – are of Western European origin or nationality. Yet only 8% of the ICSID’s caseload comes from Western Europe. And again, 20% of the arbitrators are North American. But in terms of cases, only 5% are North American.
Now let’s look at it from the other perspective. Eastern European and Central Asian arbitrators account for 3% of the entire composition. But in terms of cases, 26% of the cases come from Eastern Europe. The disparity continues. Sub-Saharan Africa – 2% of arbitrators and 14% of the caseload. Middle East and North Africa – only 4% of the arbitrators come from the Middle East or North Africa, and 11% of the cases in the ICSID are from Middle Eastern or North African countries.
This is a disparity that I think needs to be addressed. One – I guess, for the purposes that other people have argued, but two – just for the fact that the practice itself should reflect the caseload.
In addition, there is something that people from Western developed countries cannot contribute but people from developing countries can, and that is the perspective of an “outsider.” Coming from developing countries, we can provide the perspective of an immigrant. Many developing countries also have more interest in asserting their regulatory powers as a way to improve their economic and political systems. That’s something that people from more developed countries may probably not understand.
So those are perspectives that I can contribute to the table. I do think that there’s more work that needs to be done in terms of racial diversity. Happily, there have been some efforts. The ICSID has consistently been talking about this issue, especially in the context of the UNCITRAL Working Group discussions on having a multilateral investment court, on how we compose that court: where the people should come from, where the arbitrators should come from. There have also been discussions in other bodies like the International Chamber of Commerce. I think that it is a welcome development.
Arbroad: Being a Filipino, have you ever experienced a different treatment in the legal community abroad?
Anjo: Being in international arbitration in the U.S., you get exposed not only to American arbitration practitioners, but also to arbitration practitioners of other backgrounds. There has been a tendency that the norm in this practice is to be more welcoming and open to people from different backgrounds than where you come from. So I wouldn’t say that there’s anything strikingly different.
There are some comments here and there. For instance, like, “Oh, Anjo, I didn’t know that you write English so well or you speak English so well,” which to some extent I don’t even know how to respond to. There is a way to respond by saying, “Oh, because for a few years we were colonized by the United States,” you know, or “because we had English as a medium of instruction, and the government just thinks that English should be used as a lingua franca in our country.” I would say there are some comments like that, but never in a way that affected my access to the job.
I do know that it becomes more sensitive, for instance, if you’re excluded from a case because of language. I know some associates from other law firms who are, for instance, not able to participate in any Spanish cases because they don’t speak Spanish, even though the tribunal is bilingual. That’s a hurdle that they need to overcome. Fortunately, in some firms, it is possible to participate in a case if the tribunal is bilingual.
I do know there’s a counter argument to that: why is there an English-speaking tribunal to resolve a case where all the documents are in Spanish? And I see the merit in it. Because it’s true: why is an English-speaking tribunal, sometimes composed of all three English speakers, going to resolve any case in a Latin American country in a language that’s not native to them? You have to translate the documents. It doubles the costs. Some nuances in the language are lost in translation. These are concerns that I think go back to racial diversity. Perhaps if there were more arbitrators from a background similar to the cases that are appearing in the ICSID, then maybe this wouldn’t be an issue or a problem.
Now, someone may answer, “But the parties get to choose their arbitrators.” Yes, that’s true. However, it’s not an absolute choice. You get to select from arbitrators that either come from the list of arbitrators of ICSID, but even for those outside of the list, obviously, as counsel you advise your client, “Okay, we think that this is an arbitrator who’s going to be impartial for the case, qualified for the case, has the competence”, and mostly they come from certain jurisdictions who have had the advantage of being the first in the field. They’re either in Western Europe or North America.
It was difficult for me to imagine being in this practice because there are very few of us who were in this practice before. Hopefully, we get to the point where it doesn’t have to become an issue anymore, that we get to see people who look like us, who speak like us – I would say, to a certain degree, think like us, and understand our concerns. So that we don’t feel like we need to prove ourselves, and that we are of the same caliber as our peers who have been in this practice, in this profession, for decades more than us.
Arbroad: Speaking of appointing arbitrators, there is this cliché that clients would normally prefer to see an old Caucasian male on the panel. While we see some improvements on the part of the institutions already, the situation with party appointments seems still to be quite concerning. Do you think that there is anything that can be done to address this problem, maybe with the help of the law firms representing these clients?
Anjo: I would start even earlier. It is a question of access. The issue of race intersects with so many other issues: economic status, educational attainment, etc. If law firms, if arbitral institutions gave more opportunities to people outside of Western Europe and North America, if they invested, for instance, in scholarships for people outside of these regions, the picture would be different.
They do have some discussions, but I think that’s not enough. If I don’t have the money to study and get a formal education, then how do we even get there anyway? I think there should be more of that – trying to really increase access. Again, not to discredit what the institutions are doing – they have been systemically making a lot of efforts to improve diversity. But it starts with access: making sure that we even have the educational attainment, the credentials to be on a par with people from North America and Western Europe. This is to make sure that in the future, the clients won’t have to choose someone based on how they look, based on the color of their skin, but because they see that the people have the same credentials. Another suggestion is perhaps to increase the capacity of universities in our home countries to train students in international arbitration so that they don’t even need to go abroad and study.
Unfortunately, that’s the current system. It’s going to take a while to reach a point of expertise in our home universities. So, perhaps, right now the best course would be to offer scholarships to applicants outside of Western Europe and North America to study international arbitration.
Arbroad: Let’s now take a look at the fee earners. Some firms make supporting statements for minority groups but would only hire lawyers with a specific bar membership and/or prefer native speakers of certain languages. Do you think that such requirements are justified for international arbitration lawyer positions? Do you think there may be a more balanced approach to this issue?
Anjo: Being in the practice of investment arbitration for the past three years, it has given me some perspective into why firms do what they do. For instance, a firm may be hiring someone who speaks Spanish. I see that’s important because many cases originate from South America. If a firm is looking for someone who speaks Spanish, I think that’s justified. That’s something that the market dictates.
However, I think that the firms should also be willing to train their lawyers for certain languages as opposed to imposing it as a disqualifier. Well, if the firm is catering only to Latin American countries, then it might be a challenge. But for firms that are catering to clients outside of Latin America, I don’t see a reason why language in and of itself should be a disqualifier.
On bar membership, again, it is also tricky. I’m working with a firm. We do appear in court cases as well as in enforcement proceedings, where bar membership is required – in New York and D.C., but I don’t appear in those cases. So I’m not required to have a bar membership to that extent. However, in some firms they do require it, because of, again, a business need. They’re saying, “Okay, we want all our lawyers to have this just in case we have a case that in the future will need their appearance in court.”
As for the middle approach, the firms should be able to identify a business need for individuals in certain parts of their work. Maybe they don’t have to write pleadings or work directly with the clients if they can’t speak a particular language. In my firm, for example, I am lucky enough that even if I don’t deal directly with the clients, I still prepare memos in English. Then those memos are the ones that are discussed by the partners of the firm in Spanish with the clients.
There is some middle ground here. I wouldn’t give a blanket statement that bar membership or language requirements should be removed altogether. I do understand where the business need is coming from. But in terms of finding a middle approach, there are some gaps that we can address at this point.
Arbroad: What is one more step that could be taken to improve racial diversity in arbitration?
Anjo: I guess one more step that we can take towards achieving this goal of racial diversity – and this is something that I would say as advice for myself, for all of us and for everyone who may be reading it – is to assert ourselves, that we can actually be part of this practice. I know that this is a very complex, if not a complicated thing to do. It’s affected by so many factors, cultural among them. I noticed that when I was starting my LL.M., I was more timid than I usually am. I am fairly extroverted but when I was starting my LL.M., I wouldn’t even raise my hand because I was afraid that others would laugh at my English, or that they wouldn’t understand me because of my accent, or that my ideas weren’t good enough.
I think breaking ourselves free from these self-imposed restrictions will help a lot to increase racial diversity in the field. Racial diversity is a systemic issue, and yes, there are many systemic ways to resolve the problem. But at the same time, we also have to do our part to make sure that we are recognized and that we put ourselves out there as much as we can.
Blitz Poll
Arbroad: Written submissions or oral arguments?
Anjo: Oral arguments.
Arbroad: Learning or teaching?
Anjo: Teaching.
Arbroad: Singing or dancing?
Anjo: Singing! [smiles]
Arbroad: Could you give us a movie recommendation?
Anjo: Everything Everywhere All At Once.
Arbroad: Cooking at home or eating out?
Anjo: Cooking at home. I have a Gordon Ramsay book behind me, so… [laughs]
Arbroad: Apple or Android?
Anjo: Android.
Arbroad: Massachusetts or Washington, D.C.?
Anjo: Ooph… Washington, D.C. Sorry, Massachusetts. [laughs]
Arbroad: Where is the best coffee in D.C.?
Anjo: This might sound so basic, but Blue Bottle Coffee.
Arbroad: Where does the road lead?
Anjo: The roads leads to… I would say, the four of us being arbitrators in the future. So there you go. [laughs]
Advice
Arbroad: What advice would you give to an arbitration lawyer wanting to move jurisdictions?
Anjo: Okay. Just one piece of advice – give it a chance. Just take a chance. It’s scary. I’m still scared, you know.
There are so many visa issues as well, immigration issues. I am just going to share this very quickly to anyone who is interested in working in the U.S. So, you get your academic visa, which is for one year or for the extent of your program, and then another year of Optional Practical Training which costs somewhere between 300 to 600 U.S. dollars. You get to extend your stay in the U.S. for one more year. Then after that, you have to get your work visa. There are different kinds, but generally the preference of employers would be to take people with H-1B visa, and H-1B visa is a lottery. Say out of the thousands that applied, only a certain percentage of that will get the H-1B visa.
I was not fortunate enough to get that visa, so I had to apply for a different kind of visa, the O-1 visa. It’s specific to individuals. They call it the “extraordinary ability” visa. I wouldn’t go as far as calling myself extraordinary [laughs], but it’s basically a visa that requires you to prove some level of experience, some number of years of experience, publications, credentials in order to get that visa. For those who intend to work here in the U.S., that option is available, especially when you have the qualifications, the experience, the credentials to get that visa. And those who don’t have it yet, then perhaps this interview will now be the call for you to start working on your credentials, so that in the future, if you’re someone who’s unlucky and doesn’t get the H-1B, then you have that option of getting the O-1 visa.
So again, even if it is scary, take the chance. It’s a very interesting field. You get to see interesting people. This opportunity [to be part of Arbroad’s Interview Series], for instance, is already proof of that.
*The interview was conducted on 11 March 2023.