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Introductory Remarks by Susan Franck

Published online by Cambridge University Press:  28 March 2018

Susan Franck
Susan Franck*
Affiliation:
American University Washington College of Law.
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Extract

The American Society of International Law (ASIL) agreed, in 2017, that it was appropriate to have an entire panel at the Annual Meeting dedicated to exploring the value of women in international adjudication. Although the panel occurred at 9:00 a.m. on the Saturday before Easter, we were pleased that the room was sufficiently packed—with men and women—that there was standing room only.

Type
Valuing Women in International Adjudication
Information
Proceedings of the ASIL Annual Meeting , Volume 111 , 2017 , pp. 289 - 293
Copyright
Copyright © by The American Society of International Law 2018 

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Footnotes

*

Meg Kinnear and Liesbeth Lijnzaad did not contribute remarks for the Proceedings.

This panel was convened at 9:00 a.m., Saturday, April 15, 2017, by its moderator, Susan Franck of the American University, Washington College of Law, who introduced the panelists: Kate Parlett of 20 Essex Street; Josephine Dawuni of Howard University; Meg Kinnear of the International Centre for Settlement of Investment Disputes; and Liesbeth Lijnzaad of the Netherlands Ministry of Foreign Affairs.*

References

1 Franck, Susan D., Freda, James, Lavin, Kellen, Lehmann, Tobias & van Aaken, Anne, The Diversity Challenge: Exploring the “Invisible College” of International Arbitration, 53 Colum. J. Transnt'l L. 429 (2015)Google Scholar; Grossman, Nienke, Achieving Sex-Representative International Court Benches, 110 AJIL 82 (2016)Google Scholar; Grossman, Nienke, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2017)Google Scholar; Kenney, Sally J., ‘Breaking the Silence: Gender Mainstreaming and the Composition of the European Court of Justice’, 10 Feminist Legal Stud. 257 (2002)Google Scholar; Linos, Katerina, Introduction to Symposium on Nienke Grossman, Achieving Sex-Representative International Court Benches, 110 AJIL Unbound 84 (Sept. 19, 2016)Google Scholar, at https://www.asil.org/blogs/introduction-symposium-nienke-grossman-``achieving-sex-representative-international-court.

2 PennLaw, Women in International Arbitration, PennLaw, 23:03-27:53 (Mar. 27, 2017), at https://www.youtube.com/watch?v=bac95jZZkAA.

3 Franck et al., supra note 1, at 473–74.

4 Id. at 474.

5 Id. at 475.

6 Id.

7 Franck et al., supra note 1, at 474–57; Mary L. Clark, Judicial Retirement and Return to Practice, 60 Cath. U. L. Rev. 841, 873–74 n.216 (2011).

8 2014 data from the Council of Europe, which uses the Council's self-reporting methodology, demonstrated that: (1) in England and Wales, only 30 percent of the judiciary was female; and (2) in Northern Ireland and Scotland, 23 percent of the judiciary was composed of women. Council of Europe, European Judicial Studies: Efficiency and Quality of Justice , CEPEJ Studies No. 23 (2014 data) 101 (2016 ed.), at http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2016/publication/REV1/2016_1%20-%20CEPEJ%20Study%2023%20-%20General%20report%20-%20EN.pdf. Although, overall, the judges in national courts at all levels through Europe were generally balanced at 51 percent women and 49 percent men, men tended to have more senior and prestigious appointments. Council of Europe, European Judicial Studies: Efficiency and Quality of Justice—Overview of the Report (2014 data) 21 (2016 ed.), at http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2016/publication/REV1/2016_1%20-%20CEPEJ%20Study%2023%20-%20Overview%20-%20EN.pdf.

9 See infra Kate Parlett, Valuing Women as Counsel in International Adjudication, ASIL Proceedings (identifying the large number of women practicing as solicitors and barristers—and elite Queen's Counsel—in England and Wales).

10 Smith, Chloe, Rush for Gender Balance Could ‘Destroy’ Judiciary, Claims Sumption, LawGazette (Sept. 25, 2015)Google Scholar, at https://www.lawgazette.co.uk/practice/rush-for-gender-balance-could-destroy-judiciary-claims-sumption/5051136.article.

11 Grossman, Nienke, Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?, 12 Chi. J. Int'l L. 647 (2012)Google Scholar.

12 In 2011, Elsa Kelly was the first woman appointed. In June 2017, ITLOS elected two more women: Neeru Chadha and Liesbeth Lijnzaad. International Tribunal for the Law of the Sea, Press Release: Election of Seven Members (June 14, 2017), at https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_260_EN.pdf.

13 Grossman, Achieving, supra note 1, at 82–84.

14 Kumar, Shashank & Rose, Cecily, A Study of Lawyers Appearing Before the International Court of Justice 1999–2012, 25 Eur. J. Int'l L. 893, 904–17 (2014)Google Scholar.

15 Franck et al., supra note 1, at 453.

16 Franck, Susan D., Empirically Evaluating Claims About Investment Treaty Arbitration, 86 N.C. L. Rev. 1, 81–82 (2007)Google Scholar (finding roughly 4 percent of treaty arbitrators were women but identifying that women were in roughly 11 percent of the caseload); Greenwood, Lucy & Baker, C. Mark, Getting a Better Balance on International Arbitration Tribunals, 28 Arb. Int'l 653, 656–65 (2012)Google Scholar (suggesting roughly 5 to 7 percent of arbitrators were women); Greenwood, Lucy & Baker, C. Mark, Is the Balance Getting Better? An Update on Issues of Gender Diversity in International Arbitration, 31 Arb. Int'l 413, 471 (2015)Google Scholar (“our ‘best estimate’ should probably be revised upward, to around 10%”).

17 Franck et al., supra note 1, at 453–54.

18 For those providing information about gender and work experience, the average number of cases as counsel was twenty-four (SD = 46.66; n = 476). While men had worked on an average of twenty-six cases (SD = .87), women had worked on an average of fifteen cases (SD = .86). A t-test comparing group differences revealed that the gender gap was statistically meaningful, with men reliably having worked on more cases than women (t(474) = 2.329; p = .02; r = .11; n = 476). A nonparametric test of medians was marginally significant (U = -1.819; p = .069).

19 There was also a meaningful difference between the age of counsel, with men being reliably older (t(515) = 6.998; p < .001; r = .29; n = 517)—with the average female counsel being 42 (SD = .877) and the average male counsel being 50.6 (SD = .549) years old. A partial correlation, which controlled for the effect of age, was unable to detect a reliable relationship between gender and the number of cases as counsel (r(466) = –.056; p = .23).

20 Greenwood & Baker, Getting Better?, supra note 16, at 418–19; Lucy Greenwood, Unblocking the Pipeline: Achieving Greater Gender Diversity on International Arbitration Tribunals, 42 Am. Bar Ass'n, Int'l Law News (Spring 2013), at https://www.americanbar.org/publications/international_law_news/2013/spring/unblocking_pipeline_achieving_greater_gender_diversity_international_arbitration_tribunals.html; see also infra note 27 and corresponding text.

21 Statistics are on file with ICSID. Additional material will be published in forthcoming editions of The ICSID Caseload—Statistics.

22 Caroline Simson, Change Afoot, But Work Remains for Diversity in Arbitration, Law360 (Apr. 5, 2017), at https://www.law360.com/articles/909771/changes-afoot-but-work-remains-for-diversity-in-arbitration.

23 The SCC reported 279 appointments, thirty-nine of which were female. Stockholm Chamber of Commerce, New SCC Statistics on Appointments of Female Arbitrators (June 30, 2016), at http://www.sccinstitute.com/about-the-scc/news/2016/new-scc-statistics-on-appointments-of-female-arbitrators/.

24 International Chamber of Commerce, ICC Court Sees Marked Progress on Gender Diversity (May 31, 2017), at https://iccwbo.org/media-wall/news-speeches/icc-court-sees-marked-progress-gender-diversity/.

25 See, e.g., American Association of University Women, Barriers and Bias: The Status of Women in Leadership (2016), at http://www.ncgs.org/Pdfs/Resources/barriers-and-bias.pdf (discussing leadership challenges in many economic sectors); Kenny, Sally J., Which Judicial Selection Systems Generate the Most Women Judges? Lessons from the United States, in Gender and Judging 461 (Schultz, Ulrike & Shaw, Gisela eds., 2013)Google Scholar; Malleson, Kate, The Position of Women in the Judiciary in England and Wales, in Women in the World's Legal Professions 175, 177 (Schultz, Ulrike & Shaw, Gisela eds., 2003)Google Scholar (observing that “women are disproportionately situated at the lower end of the judicial ranks”); Ulrike Schultz, ‘I was Noticed and I Was Asked…’ Women's Careers in the Judiciary: Results of an Empirical Study for the Ministry of Justice in Northrhine-Westfalia, Germany, in Gender and Judging, supra, at 145 (discussing the relatively small number of women in Germany's most elite courts); Asmussen, Nicole, Female and Minority Judicial Nominees: President's Delight and Senators’ Dismay?, 37 Legis. Stud. Quart. 591 (2011)Google Scholar (observing that female and minority judicial nominations in the United States take longer and are less likely to be confirmed).

26 See Am. Bar Foundation, First Chairs at Trial: More Women Need Seats at the Table—A Research Report on the Participation of Women Lawyers as Lead Counsel and Trial Counsel in Litigation (2015), at https://www.americanbar.org/content/dam/aba/marketing/women/first_chairs2015.authcheckdam.pdf (conducting a study related to U.S. district court cases and finding that “[i]n civil cases, men are three times more likely than women to appear as lead counsel and to appear as trial attorneys”).

27 Parlett's presentation and written commentary referred to the student study Retaining and Advancing Women in Law Firms. Anna Jaffe, Grace Chediak, Erika Douglas & Mackenzie Tudor, Retaining and Advancing Women in National Law Firms, Stanford Law School Women in Law Policy Lab Practicum (May 2016), at https://law.stanford.edu/publications/retaining-and-advancing-women-in-national-law-firms/. Others have identified similar concerns. Sterling, Joyce S. & Reichman, Nancy, Overlooked and Undervalued: Women in Private Practice, 12 Ann. Rev. L. & Soc. Sci. 373 (2016)Google Scholar (providing recent data on women lawyers in private practice, with some data from other countries, and looking at a variety of structural impediments to women's advancement including composition of compensation committees, credit for client business, job segregation, billing, performance evaluation, and implicit bias).