Restrictions in appointing sitting International Court of Justice judges in arbitration proceeding

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.


The Background:


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 (