IISD Welcomes ICJ Judges’ Decision to no Longer Participate in Investor–State Arbitration

GENEVA, October 27—Members of the International Court of Justice (ICJ) have decided they “will not normally accept to participate in international arbitration” and, “in particular, they will not participate in investor–State arbitration or in commercial arbitration.” International law experts at the International Institute for Sustainable Development (IISD) welcome the news.

In a speech to the United Nations General Assembly on October 25, Judge Abdulqawi Yusuf, President of the ICJ, described how Members of the Court have “sometimes been called upon by States to sit on … arbitral tribunals … dealing in some cases with inter-State disputes while in others with investor–State disputes.” He went on to mention that, in light of its ever-increasing workload, the Court has recently decided to review this practice and to set out clearly defined rules regulating such activities.

Is “Moonlighting” a Problem? The role of ICJ judges in ISDS, released by IISD last year, found that sitting judges of the International Court of Justice have worked as arbitrators in at least 90 investor–state dispute settlement (ISDS) cases.

“IISD has raised a number of issues in relation to ICJ judges acting as arbitrators in investor–state disputes. Our November 2017 paper created a public discussion about the issue,” said Nathalie Bernasconi-Osterwalder, Director of IISD’s Economic Law & Policy program. She co-authored the study with Martin Dietrich Brauch, an Associate and International Law Adviser with IISD.

Bernasconi stated: “IISD welcomes the news that ICJ judges will, from now on, no longer participate in investor–state arbitration or in commercial arbitration. This move will go a long way in ensuring the ICJ’s reputation for independence as the highest authority on public international law remains intact.”

The ICJ is the principal judicial organ of the United Nations. It has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by states (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized UN organs and agencies of the system. The Court is composed of 15 judges elected for a nine-year term by the UN General Assembly and the UN Security Council.

In the future, the Court will, under exceptional circumstances, authorize its members to participate in state–state arbitrations, “if the circumstances so warrant.” President Yusuf clarified that even in such exceptional cases, a Member of the Court will only participate, if authorized, in one arbitration procedure at a time, and provided that the appointment as an arbitrator is not by a State that is a party in a case pending before the Court. This contrasts with current practice pursuant to which some judges increasingly served as arbitrators in several investor–state arbitrations at the same time, alongside their function as members of the International Court of Justice.  

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