There is a well-known confession attributed to Pastor Martin Niemöller, the German clergyman who survived the Nazi concentration camps. He described, with devastating simplicity, how he said nothing when the Nazis came for the socialists, said nothing when they came for the trade unionists, said nothing when they came for the Jews — and then found, when they came for him, that there was no one left to speak. The College of Commercial Arbitrators cited that confession in the amicus brief it filed in the United States Court of Appeals for the District of Columbia Circuit. We filed our brief in support of the four law firms that resisted Executive Orders issued by the Trump Administration. The court will hear arguments on May 14.
I am a commercial arbitrator. For most of my career, commercial arbitration had nothing to do with politics. Arbitrators resolve contract disputes, business disagreements, commercial conflicts. We sit in hearing rooms, weigh evidence and argument, write reasoned decisions. We are, by training and temperament, people who stay in our lane. The idea that our professional organization would file a brief in a constitutional law case involving Executive Orders targeting law firms was not, two years ago, something I would have predicted.
And yet here we are. And the Niemöller confession is why.
The Executive Orders at issue in this case — directed at prominent law firms, threatening their clients with the loss of federal contracts, suspending security clearances, directing government agencies to shun firms that represent clients the administration dislikes — are not, on their face, about arbitration. They are about court litigation. About law firms. About the independence of lawyers. That is not our lane, one might argue. We are arbitrators. We are a professional organization, not a civil liberties group. We should wait and see what happens.
That argument is what Niemöller warned against.
The Nazi regime moved against arbitration within weeks of seizing power — in April 1933, less than two months after the Reichstag Fire Decree suspended civil liberties. The Soviet Union abolished private arbitration after the 1917 revolution and replaced it with a state-controlled administrative apparatus that bore arbitration’s name but served the government’s interests. Francoist Spain restricted arbitration between 1953 and the end of the Franco era such that the number of proceedings held under that regime’s arbitration law could be counted on one hand. These were not coincidences. Authoritarian regimes understand that arbitration — a system in which parties can resolve their conflicts before neutral decision-makers, free from state interference — is incompatible with concentrated power. When regimes move against lawyers and courts, arbitration comes next.
The United States is not Nazi Germany, Franco’s Spain, or the Soviet Union. But the pattern — target the lawyers first, then extend control to the dispute resolution mechanisms they inhabit — is part of the historical record. We would be irresponsible to wait until the pattern plays out before we speak out.
Commercial arbitration does not exist in isolation from the legal system. It depends, structurally and fundamentally, on an independent judiciary to confirm, enforce, and vacate awards when necessary. It depends on lawyers who can advocate freely, without fear that zealous representation of an unpopular client will bring government retaliation down on their firm. And it depends on arbitrators — many of whom work at law firms — who can render decisions based on the law and the facts, free from concern as to whether the outcome might invite government retaliation.
When the Executive Orders direct federal agencies to terminate security clearances or contracts with law firms that represent disfavored clients, they not only threaten those firms. They threaten every arbitrator who practices at a firm and knows, consciously or not, that a ruling the government dislikes could carry professional consequences. Unlike federal judges, arbitrators have no life tenure or salary protected by the Constitution. We depend on our reputations and on the confidence of parties who choose us to decide their disputes. We are, in this sense, perhaps more vulnerable than judges to the pressure the Executive Orders create.
The brief the College of Commercial Arbitrators filed asks the D.C. Circuit to affirm the lower court judgments striking down the Executive Orders as unconstitutional. The brief does not take sides in many of today’s legal controversies. What it does is explain, from the perspective of people who administer independent dispute resolution, why the rule of law is not an abstraction. It is the foundation on which commercial arbitration stands. When the rule of law is threatened, it threatens us as well and all those who come before us to resolve their disputes.
Niemöller’s confession is a warning about the cost of waiting rather than acting. It is also, implicitly, an instruction: speak before it is too late, while there are still others who can speak with you and for you. The College of Commercial Arbitrators chose to speak now. That is what the moment required. What happens to the independence of lawyers, arbitrators, and judges is not a matter for insiders alone — it is the question of whether any of us, in a business dispute or any other, can count on a neutral and fearless advocate or decision-maker when we need one.
Oral argument in Perkins Coie LLP v, United States Dep’t of Justice will be heard on May 14, 2026 in the D.C. Circuit Court of Appeals. The College of Commercial Arbitrators will be there.
Dana Welch is a nationally recognized arbitrator with more than two decades of experience resolving complex commercial disputes. She has served as an arbitrator in over 450 matters across industries, including high-stakes corporate, financial, and technology cases, and is a member of leading arbitration panels including the AAA, ICDR, and CPR. A Fellow of the College of Commercial Arbitrators, the Chartered Institute of Arbitrators, and the American Bar Foundation, she is also recognized in Best Lawyers in America and as a Northern California Super Lawyer in ADR. She is on the Tech List® of the Silicon Valley Arbitration and Mediation Center. Prior to becoming a full-time neutral, she was a commercial litigator at major law firms including O’Melveny & Myers and Ropes & Gray. She also served as General Counsel to a technology-focused investment bank. Her experience gives her a deep understanding of the legal system’s reliance on independent counsel and neutral decision-makers, and the practical implications when that independence is threatened.
Read the CCA’s press release regarding the broader arbitration and rule-of-law implications raised ahead of the May 14 hearing.
