New Restrictions on Arbitral Appointments for Sitting ICJ Judges

Editor’s Note: This week, in a trio of posts by Callum Musto, Marie Davoise, and Frederic Sourgens, we facilitate discussion on the nature of the International Court of Justice’s judicial function, and the occasional international arbitration appointments accepted by individual judges of the World Court. In view of H.E. President Yusuf’s October 2018 report to the U.N. General Assembly, what can be expected of the Court with respect to managing future arbitral appointments that could be issued by appointing authorities or party nominations for the Court’s individual jurists – whether in inter-State or mixed arbitral disputes?

On 25 October, in the annual address of the President of the International Court of Justice to the General Assembly, President Yusuf announced that the Court had decided to adopt new restrictions on its sitting Members acting as arbitrators in inter-State and mixed arbitration. He said:

The Court is cognizant of the fact that, while the judicial settlement of disputes offered by the Court is enshrined in the Charter, States may, for several reasons, be interested in settling their disputes by arbitration. In such instances, Members of the Court have sometimes been called upon by States to sit on the arbitral tribunals in question dealing in some cases with inter-State disputes while in others with investor-State disputes – a testament, of course, to the high esteem in which the Court’s Judges are held by the international community. Over the years, the Court has taken the view that, in certain circumstances, its Members may participate in arbitration proceedings. However, in light of its ever-increasing workload, the Court decided a few months ago to review this practice and to set out clearly defined rules regulating such activities. As a result, Members of the Court have come to the decision, last month, that they will not normally accept to participate in international arbitration. In particular, they will not participate in investor-State arbitration or in commercial arbitration. [pp. 11-12, my emphasis]

President Yusuf elaborated that while sitting judges would no longer be allowed to arbitrate in mixed proceedings, they would be permitted to do so in ‘exceptional’ circumstances in inter-State disputes, provided that their judicial activities are given ‘absolute precedence’:

… in the event that they are called upon, exceptionally, by one or more States that would prefer to resort to arbitration, instead of judicial settlement, the Court has decided that, in order to render service to those States, it will, if the circumstances so warrant, authorize its Members to participate in inter-State arbitration cases. Even in such exceptional cases, a Member of the Court will only participate, if authorized, in one arbitration procedure at a time. Prior authorization must have been granted, for that purpose, in accordance with the mechanism put in place by the Court. Members of the Court, will, however, decline to be appointed as arbitrators by a State that 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. [pp. 11-12, my emphasis]

It does not appear that the Court has elected to make formal amendments to its Rules or to include a Practice Direction reflecting the new appointment policy, but rather for individual judges and the President to manage appointment requests on an individual basis. The difference in approaches taken between inter-State and mixed arbitration presumably reflects the significant jurisdictional and substantive overlaps between the Court’s activities and many inter-State arbitrations — especially under Annex VII UNCLOS — and the comparatively smaller pool of eligible arbitrators to fill these roles.

Compatibility of arbitral appointments with the Statute of the Court

The issue of sitting judges’ extra-judicial activities is a thorny one. Until recently, sitting ICJ judges have continued the long-standing practice (going back to the PCIJ) of accepting arbitral appointments and have acted as arbitrators in a significant number of proceedings, especially under Annex VII UNCLOS and numerous international investment agreements.

The new policy must be viewed against the backdrop of heightened concern amongst a significant group of States and the public around aspects of investment arbitration. The Court’s change of direction follows a report released by the International Institute for Sustainable Development in November 2017 highlighting that sitting ICJ judges had acted as arbitrators in 90 investor-State disputes. The IISD report emphasised the large sums sometimes paid to arbitrators and raised concerns about the compatibility of arbitral appointment with judges’ performance of their functions under the Charter and the Statute of the Court. The report’s authors argued that arbitral appointment ‘appears to entangle the ICJ in situations that undermine its reputation for independence as the highest authority on public international law’ and considered that ‘[a]s international investment arbitration continues to expand, the entanglements will become more pervasive and complex.’ [p. 5]

At first glance, the arbitral appointment of sitting ICJ judges indeed appears to run counter to Article 16(1) of the ICJ Statute, which provides that:

No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.

The question arises, however, whether acting as an arbitrator on an ad hoc basis qualifies as an ‘occupation of a professional nature’. In the past the Court has regarded arbitral appointment as consistent with Article 16(1), provided it did not require a judge to address matters which would later fall for the Court to settle, or otherwise interfere with the judge’s capacity to fulfil their judicial functions (see, e.g. December 1995 ACABQ report, UN Doc. A/C.5/50/18; Report of the International Court of Justice, 1 August 1995 – 31 July 1996, UN Doc. A/51/4).

To a large degree the Court’s new policy does not break from its established practice. It is notable that in his address, President Yusuf did not declare that arbitral appointment is incompatible with judges’ functions under the Statute, nor did he refer to Article 16. This suggests that although the Court has decided to limit appointments in the interests of pursuing greater efficiency, it continues to regard appointment as in principle consistent with Article 16. The implication seems to be that if the Court’s work-load were ever to shrink, judges might once again be permitted to accept higher numbers of arbitral appointments.

A step forward for the Court, a step backward for arbitration?

Given the growth in the Court’s docket — and especially the recent growth in time-sensitive provisional measures applications, as illustrated inter alia by the Jadhav, Ukraine v Russia, Qatar v UAE and Iran v US proceedings — the move toward reducing sitting judges’ extra-judicial commitments can only be welcomed.

However, while perhaps a step forward for the Court, the impact of the Court’s new policy will likely be felt — although perhaps not for some time — outside the Peace Palace. By limiting arbitral appointment, the pool of top generalist public international lawyers available to arbitrate in inter-State and investor-State proceedings has now been further restricted. This may affect the quality of arbitral reasoning, particularly in ISDS. The appointment of sitting (and former) ICJ judges has acted as a buffer against the tendency within both inter-State and (especially) ISDS to appoint increasingly specialised arbitrators, often to the detriment of the appropriate and accurate consideration of issues of general international law. One cannot help but think that this loss of expertise will have negative effects. Whether the remaining pool of generalists will be sufficient to cover the gap remains to be seen. However, given the number of ongoing proceedings currently involving ICJ judges — and that it appears that the policy will only affect future appointments — it will be some time before we see the results of the Court’s new policy.