SCC Spotlight Talk: Lindsay Gastrell

Lindsay, you are involved in several initiatives to promote diversity in international arbitration. Can you explain why is diversity important in our field? 

As international arbitration practitioners, we have the privilege of working in a truly global areas of legal practice. It is an interest in different cultures, languages and identities that first drew many of us to this field and keeps us engaged every day. So, we are particularly well-placed to capture the benefits of diversity. 

The benefits are real. Study after study has demonstrated that diverse groups outperform homogenous groups on metrics including profitability, value creation and decision making. In the realm of international arbitration, cultivating a more diverse pool of talent can help us cater our services to the needs of a global clientele, whereas failing to do so could jeopardize the perception of arbitration as fair and legitimate.

What has been done so far to promote diversity in the arbitration community, and how much progress has been made? 

Over the last decade, there has been an impressive effort to improve gender diversity in our field, particularly on arbitral tribunals. Well-known initiatives include Arbitral Women, the Equal Representation in Arbitration Pledge, Mute Off Thursdays and ICCA’s cross-institutional task force on gender diversity. Arbitral institutions have made it a priority, publishing statistics on gender and selecting women for more appointments. As a leading example, the SCC filled 54 % of its institutional appointments with women in 2022. The initial progress is worth celebrating: female representation on tribunals has grown from under 10 % ten years ago to more than 25 % today. However, parties still appoint male arbitrators in overwhelming disproportion. And while equal numbers of men and women enter the legal profession in many jurisdictions, female representation drops considerably at senior levels. 

For other forms of diversity, progress has been slow and difficult to measure. However, a  number of promising initiatives have emerged, including: Racial Equality for Arbitration Lawyers (REAL), the Ray Corollary Initiative, the African Promise, the ICC’s Disability and Inclusion Taskforce and forthcoming LGBTQIA network, and Burford’s Equity Project to finance cases led by women and racially diverse attorneys. 

What more can the international arbitration community do to capture the benefits of diversity we discussed? Are there specific obstacles to overcome?

Like many, I am increasingly concerned about the threat that “diversity fatigue” poses to sustained progress. Most of us have experienced it in some form. Perhaps you are scrolling through LinkedIn and think, “oh, not another diversity in arbitration event.” Or your firm requires perfunctory diversity training that cuts into fee earning. Whatever the benefits of diversity may be, it is difficult to engage when we are tired of the discussion, feel that we are being lectured, or are demoralized by the lack of results. 

I will not pretend to know the antidote for diversity fatigue, but it surely involves less jargon and more action. To that end, many of the initiatives I mentioned have identified concrete steps that individuals in different roles can take right now to promote diversity in the arbitration community. For example, the Ray Corollary Initiative recommends including at least 30 % diverse candidates on arbitrator lists, based on empirical research showing that when less than 30 % of a slate of candidates is diverse, the chance of selecting a diverse candidate is nearly zero. 

Another critical component is data collection, as seen in our initial work on gender diversity. Before statistics on arbitrator appointments by gender were widely available, the problem was nebulous and easy to ignore. Today, the expectation that all institutions publish such statistics not only allows us to monitor progress; it incentivizes institutions to seek out and appoint qualified female candidates. 

Finally, it is worth recalling the importance of “allies.” Throughout history, movements to empower marginalized groups have always depended on external support. It is no different in our field. Already, the efforts of many cast as “stale, pale males” have been critical to our progress on gender diversity. Looking forward, we all can be an ally in respect of some forms of diversity – and we will need to be if we want to transform international arbitration into a truly diverse and inclusive field.