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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])
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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 jurisdiction.
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’ qualifications.
- 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] Further options include a stipulation that the Court be “broadly representative” of its membership, as in the WTO,[2] or that “equitable,”[3] “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 absolute.
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] 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] 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 following:
- 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 explain.
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.
* 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 series.
** 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.
[5] E.g., Advisory Opinion OC-20/09, Inter-Am. Ct. H.R. (Sept. 29, 2009).
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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 (www.ccsi.columbia.edu).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at [log in to unmask].
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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
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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
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