Judges of the International Court of Justice decide to no longer participate as arbitrators in ISDS cases

In a speech to the United Nations General Assembly on October 25, 2018, Judge Abdulqawi Yusuf, President of the International Court of Justice (ICJ), mentioned that the court has decided to restrict the practice of allowing members to serve in arbitral tribunals. ICJ members have decided that 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.”

Only under exceptional circumstances will the ICJ authorize its members to participate in arbitrations between states, “if the circumstances so warrant.” President Yusuf clarified that even in such exceptional cases, an ICJ judge 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 ICJ judges.