Luiza Leão Soares Pereira
LL.B. (UFRGS, Brazil), LL.M. PhD Candidate (University of Cambridge, UK).
The President of the International Court of Justice, Judge Abdulqawi Ahmed Yusuf, announced a significant change in ICJ policy about sitting judges’ ability to act as arbitrators. The main features of the policy, announced in President Yusuf’s annual address to the UN General Assembly of 25th of October 2018 (https://www.icj-cij.org/files/press-releases/0/000-20181025-PRE-02-00-EN.pdf), are as follows:
Judges may no longer sit in investor-State or commercial arbitration [pp. 11-12].
In inter-State disputes, Judges will request the authorization of the Court to act as arbitrators [pp. 11-12].
Judges, if authorized by the Court, may only participate in one arbitration procedure at a time [pp. 11-12].
Judges must refuse appointment by parties of pending cases before the Court, independent of connection between the subject matters of the disputes.
Article 16 of the ICJ Statute provides that ‘no member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature”, but, notwithstanding some controversy in the 1990s (see Davoise https://www.ejiltalk.org/cant-fight-the-moonlight-actually-you-can-icj-judges-to-stop-acting-as-arbitrators-in-investor-state-disputes/), it had been established practice for PCIJ and now ICJ judges to accept arbitral appointments.
More recently, however, the tide started to turn. Concerns about arbitral appointments and propriety have arisen with regards to double-hatting in investment disputes in academia (Puig http://www.ejil.org/article.php?article=2495&issue=120 and Langford, Behn and Lie https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2978531) and practice (Philippe Sands and Thomas Buergenthal have spoken against the phenomenon). This is must be seen against the backdrop of increased opposition to ISDS more generally. Specifically on ICJ Judges, a damning report of the think tank International Institute for Sustainable Development (https://www.iisd.org/media/sitting-international-court-justice-judges-worked-arbitrators-least-90-investor-state-cases), compiled information on the practice of ICJ judges’ ‘moonlighting’ as arbitrators in investment and inter-State disputes.
Although President Yusuf cited the Court’s ‘ever-increasing’ caseload as a reason for the decision, there is no doubt that the Court was mostly motivated by criticism. The unprecedented defeat in the re-election of UK Judge Christopher Greenwood, one of most prolific judge-arbitrators cited in the IISD ‘Moonlighting’ Report, might have helped signal to the Court that it must take impartiality and its appearance seriously.
The ICJ’s decision to impose restrictions on judges’ extra-judicial activities will put a stop to the judicial propriety and impartiality concerns raised in the IISD Report, and potentially increase the credibility of the institution, and, by default, of ISDS. The Report argued that, being paid hourly rates as arbitrators and fixed rates by the Court, Judges had an incentive to spend less valuable hours on ICJ cases. It also raised anxieties about the judges rendering judgments on the basis of what would get them on the side of appointing states. Since the ICJ may have a role in deciding challenges to arbitrators in individual disputes, the Report pointed out that conflicts of interests could arise. Suspicion that employees of the Court were being used to aid judges in these proceedings could also prove problematic. All of these problems were solved by the new policy.
Another potential positive externality of this policy is the increase in the diversity of arbitral appointees. The phenomenon of repeat-players in arbitration has been documented extensively, and evidence of the lack of diversity of the arbitration ‘mafia’ is abound. Keeping out some of the repeat-players may stimulate parties to appoint outside the ‘old boys club’.
However, the new policy also presents potential downsides. Firstly, ICJ judges are knowledgeable general international lawyers. The same is not necessarily true of other repeat players in arbitration, who may experts in other fields. Removing the former from the pile of repeat arbitrators may lead to decisions less informed about international law, and decrease the cohesion of an already naturally fragmented system (for a similar opinion see Musto, https://www.ejiltalk.org/new-restrictions-on-arbitral-appointments-for-sitting-icj-judges/).
Moreover, the removal for ICJ judges potentially increases ethical problems within the arbitration ecosystem. In a small and close-knit community, members are (1) individually indoctrinated in best practices and thus aware of what are acceptable policies, and (2) externally regulated by the threat of exclusion from the ‘club’, that will most certainly disclose and internally punish transgressors. Arguably¸ judges of the International Court of Justice, for whom reputation amongst peers and states clients is very important, are less likely to act improperly. There is thus an argument that ICJ judges are less susceptible than others to external pressure. Removing them from the pool of potential arbitrators may lead to more substantive ethical problems, and further decrease in the trust in arbitration more generally.
Some preliminary remarks:
The Court’s decision to regulate the participation of judges in extra-judicial activities comes in response to increased scrutiny and criticism about the practice of judges ‘moonlighting’ as arbitrators, especially in investment cases. The fact that the Court would listen to criticism is commendable, and its new policy could appease fears about bias and impropriety, as well as stimulate an increase of diversity in arbitration appointments. However, removing ICJ judges from the pool of investment arbitrators may deprive an already strained system from players with international law expertise and high ethical standards. It will be interesting to see whether the benefits of the Court’s new policy will outweigh its costs.