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*Columbia FDI Perspectives*
Perspectives on topical foreign direct investment issues
No. 280  June 15, 2020
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Alexa Busser ([log in to unmask])
The nationality of the international judge: Policy options for the
Multilateral Investment Court
* <#m_4893558299835610362__edn1>
Catharine Titi** <#m_4893558299835610362__edn2>

It is a view generally held that the nationality of judges on the
international bench can impact their decisions by making them partial to
their home countries. This presumption of partiality attaches especially to
judges who arrive on the bench after a career in government as legal
advisors, administrators or politicians. Concerns are also voiced about ad
hoc judges selected by disputing parties—much like arbitrators—when the
disputing parties lack a judge of their nationality (“national judge”) on
the bench. But if national and ad hoc judges are met with suspicion,
nationality also legitimizes international courts. Courts must be
representative of their membership, which entails including diverse
nationalities in their ranks. The presence of national and ad hoc judges
can be an important consideration when countries submit to a court’s

In light of the efforts to establish a Multilateral Investment Court (the
Court), this *Perspective* considers policy options in relation to the
nationality of judges, focusing on two issues.

First is the issue of geographical representation in the composition of the
Court as a whole. Since the Court is likely to start out as plurilateral,
its statute should account for the fact that its membership will evolve and
that ultimately not all countries will have a national judge on the bench.
In particular:

   - The drafters of the Court statute should consider limiting
   representation to the Court’s membership. This is consistent with most
   international court statutes and ensures better representation of the
   Court’s membership, since all available seats are reserved for members’
   judges. In order to obtain initial momentum, it is possible to entice new
   members by promising seats on the Court, although this is a perilous
   enterprise that requires the utmost care and screening of judges’
   - The Court statute must decide on the desired type of geographical
   representation. While the International Court of Justice’s representation
   of the “main forms of civilization” is an unlikely candidate,
   representation of “the principal legal systems of the world” is a plausible
   alternative.[1] <#m_4893558299835610362__edn3> Further options include a
   stipulation that the Court be “broadly representative” of its membership,
   as in the WTO,[2] <#m_4893558299835610362__edn4> or that “equitable,”[3]
   <#m_4893558299835610362__edn5> “reasonable,” “so far as is reasonable,”
   or “fair” geographical representation be assured.
   - Ultimately, the statute should accommodate two sometimes conflicting
   objectives: representativeness and the guarantee that judges possess the
   necessary personal and professional qualities and qualifications. Both
   representativeness and qualifications broadly understood are essential to
   the credibility and success of the Court. However, while representation is
   relative (“broad,” “equitable,” “fair”), the need for qualified judges is

Second is the question of national and ad hoc judges in the composition of
particular divisions constituted to hear a dispute.

Generally, international courts settling interstate disputes permit
national judges to hear a case when their home country is a disputing
party. In the absence of national judges, these courts’ statutes typically
allow countries to choose a judge ad hoc (irrespective of nationality).[4]
<#m_4893558299835610362__edn6> By contrast, in cases involving individual
applicants, human rights courts—with the exception of the European Court of
Human Rights—exclude national and ad hoc judges.[5]
<#m_4893558299835610362__edn7> Remarkably, in this case, victims often have
the nationality of the offending country, so that the country’s national
judge is also the victims’ national judge.

As with human rights courts, the Court’s principal workload will involve
disputes initiated by private parties against states—although, since the
claimant is a *foreign *investor, the state’s national judge will not be
the investor’s national judge. Docket pressures and considerations of
efficiency will probably require that cases be decided by divisions of
three judges (or even by single judge formations). This implies the

   - If national and ad hoc judges are allowed, respondent countries will
   often lack a national judge in the division of three, and ad hoc judges
   will be selected. Ad hoc judges in multiple small divisions will make the
   process redolent of arbitration and a logistical burden on the Court.
   - If countries are entitled to choose a judge ad hoc, investors will
   claim the same right. If both countries and investors are granted this
   right, the operational challenge becomes greater.
   - National judges in single judge formations are even more difficult to

In short, the likely function of the Court (mixed disputes heard by small
divisions) makes national and ad hoc judges inapposite to investor-state
disputes. It may therefore be desirable for the statute to disallow
national judges and ad hoc judges.

The drafters of the Court statute should consider limiting the Court’s
composition to its membership and employ a formula such as “fair
geographical representation” or equivalent without compromising on judges’
qualifications. For the composition of particular divisions, the better
arguments are in favor of doing away with national judges and ad hoc
judges. Ultimately, however, concrete policy options can be identified once
the Court’s probable overall design is known.

* <#m_4893558299835610362__ednref1> *The Columbia FDI Perspectives are a
forum for public debate. The views expressed by the author(s) do not
reflect the opinions of CCSI or Columbia University or our partners and
supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed
** <#m_4893558299835610362__ednref2> Catharine Titi ([log in to unmask]),
Dr iur., FCIArb is a Research Associate Professor at the French National
Centre for Scientific Research (CNRS)-CERSA, University Paris II
Panthéon-Assas. The author wishes to thank Peter Muchlinski, August
Reinisch and an anonymous peer reviewer for their helpful peer reviews.
This *Perspective* does not take into account regional integration courts.
[1] <#m_4893558299835610362__ednref3> Statute of the International Court of
Justice, Art. 9.
[2] <#m_4893558299835610362__ednref4> WTO Dispute Settlement Understanding,
Art. 17(3).
[3] <#m_4893558299835610362__ednref5> Statute of the International Tribunal
for the Law of the Sea, Art. 2(2);
Statute for the International Criminal Court, Art. 36(8).
[4] <#m_4893558299835610362__ednref6> ICJ Statute, Art. 31
ITLOS Statute, Art. 17
[5] <#m_4893558299835610362__ednref7> E.g., Advisory Opinion OC-20/09,
Inter-Am. Ct. H.R. (Sept. 29, 2009).
*The material in this Perspective may be reprinted if accompanied by the
following acknowledgment: “Catharine Titi, The nationality of the
international judge: Policy options for the Multilateral Investment Court,’
Columbia FDI Perspectives, June 15, 2020. Reprinted with permission from
the Columbia Center on Sustainable Investment (***
A copy should kindly be sent to the Columbia Center on Sustainable
Investment at **[log in to unmask]* <[log in to unmask]>*.*

For further information, including information regarding submission to the
*Perspectives*, please contact: Columbia Center on Sustainable Investment,
Alexa Busser, [log in to unmask]

*Most recent Columbia FDI Perspectives*

   - No. 279, Hania Kronfol, ‘Leveraging corporate tax incentives to
   attract FDI: design and implementation considerations,’ June 1, 2020
   - No. 278, Karl P. Sauvant, ‘A G20 Facility to rekindle FDI flows,’ May
   18, 2020
   - No. 277, Peter Muchlinski, ‘Regulating multinational digital platform
   enterprises: The case of Uber,’ May 4, 2020

*All previous FDI Perspectives are available at *
*. *

*Other relevant CCSI news and announcements*

   - *July 13-24, 2020:* CCSI will be offering a *condensed online* Executive
   Training on Investment Treaties and Arbitration
   lieu of an in-person training, that will be available *free of charge to
   government officials.* Applications from government officials are still
   being accepted here
   - *September 8-11, 2020:* CCSI will host the Global Research Alliance
   for Sustainable Finance and Investment 3rd Annual Conference
   - CCSI and partners call for ISDS moratorium during COVID-19 crisis and
   who are interested in adding their names to this sign-on can express their
   interest in doing so here

Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Columbia Center on Sustainable Investment
Columbia Law School - Earth Institute
Ph: (212) 854-0689
Fax: (212) 854-7946
*Copyright © 2020 Columbia Center on Sustainable Investment (CCSI), All
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*Karl P. Sauvant, PhD*

*Resident Senior Fellow*
*Columbia Center on Sustainable Investment*
Columbia Law School - The Earth Institute, Columbia University
435 West 116th St., Rm. JGH 825, New York, NY 10027
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