A New Beginning in International Adjudication?

THE AUTHORS: Somesh Dutta and Dmytro Koba

International Court of Justice (ICJ) — the principal judicial organ of the United Nations with 15 full-time members/judges is entrusted with the responsibility of advancement of international justice. Since its establishment as a successor of the Permanent Court of International Justice (PCIJ) after the end of the World War II, it has remained the most popular institution for the settlement of disputes between States. Over the years, the scope of international adjudication has broadened constantly from traditional inter-state adjudication to investor-state disputes (in the form of investment arbitration) and transnational disputes of commercial nature (in the form of international commercial arbitration). Resultantly, because of the overall credibility of the individuals performing judicial functions at the ICJ, they have also been preferred as adjudicators in other forms of international adjudication processes referred to herein.

Considering above-mentioned, it would be interesting to note that Article 16 of the Statute of the Court restricts members of the Court from exercising any political or administrative function or getting engaged in any other occupation of a professional nature. Irrespective of such restrictions, current and past ICJ judges have worked or are currently working as arbitrators (or annulment committee members at the International Centre for Settlement of Investment Disputes [ICSID]) in investor–state dispute settlement (ISDS) matters.

With the help of the search engine for international law developed by Jus Mundi, we analyzed, within a short period of time, that 3 sitting judges are also acting as arbitrators in ISDS matters. These 3 judges, at the same time are engaged in 8 pending cases before the Court and apart from being engaged in these 8 cases, they serve as arbitrators in 10 pending investment arbitrations (out of these 3 judges, 2 are engaged in 4 investment disputes each, and 1 judge in 2 investment disputes). Moreover, there are judges who have accepted arbitral appointments offered by a State which is a party in a case pending before the Court.

It is possible to discover more detailed information about ICJ judges in investment arbitration cases by using Jus Mundi Judges and Arbitrator Filter to make your own analytical research depending on your research needs.

The accepted practice of participation by the members of the Court in other judicial or quasi-judicial activities was highlighted in a report submitted by the Court to the United Nations General Assembly. However, the same was in an inter-state arbitration context, and without any reference to investor-state arbitrations or commercial arbitration matters.

Decision by the Members of the ICJ on Extrajudicial Activities

The incumbent President of the Court Judge Abdulqawi Ahmed Yusuf through his recent speech during the seventy-third session of the United Nations General Assembly informed the global community that considering the Court’s ever-increasing workload, Members have decided that they will not normally accept to participate in international arbitration. In particular, they will not participate in investor-State or in commercial arbitration matters. However, in exceptional circumstances, they can participate in inter-state arbitrations, but with the limitation of one arbitration procedure at a time.

Further restrictions include the obligation to decline arbitrator appointment offered by a State if it is a party in a case pending before the Court, even if there is no substantial interference between that case and the case submitted to arbitration. In addition to these conditions, it was clarified that judicial activities of the members at the Court would take absolute precedence over other quasi-judicial function and prior authorization would be required for an arbitral appointment, in accordance with the mechanism put in place by the Court.

The primary reason triggering such a decision on arbitral appointments is the increase in the workload of the Court. However, the same can be analyzed from a perspective of advancing accessibility to international law. ICJ judges have sat as arbitrators in around 10% of all known investment treaty cases during their tenure. This preference for individuals who already serve as judges at international institutions may not be a choice but a compulsion for the interested parties. Accessibility to international law, despite its impact on the public at large at a global level, remains limited, and there is a dire need to promote the same if we aim to see a large pool of qualified and credible candidates who can contribute as judges or arbitrators, and if we are truly dedicated to the advancement of international justice. The decision to regulate extrajudicial activities of the members of the Court not only addresses the ongoing backlash against ‘moonlighting’ but can also be seen as the beginning of a new era in international adjudication as it will encourage specialized adjudication workforce at a global level to deal with different types of disputes.