Ref. Ares(2016)7145736 - 22/12/2016
Ref. Ares(2017)1963547 - 13/04/2017
Appointment of
Adjudicators to a
Multilateral Investment
Court
Meg Kinnear
ICSID Secretary-General
December 14, 2016
Experts Meeting - Geneva
Vital to Success of the Court
• Nomination and selection process implements the
qualifications established for adjudicators
• Personal Qualifications: high moral character; independence
& impartiality
• Experience Qualifications: legal experience (academic, judge,
counsel); other professional experience
• Knowledge Qualifications: related to specialized mandate of
court: public international law, international investment law,
case management skills, language requirements
2
Basic Questions
• Number – How many adjudicators?
• Nomination & Selection – How are they named?
• Duration – How long do they serve on the Court?
• Case assignment – How are they named to individual cases?
3
…No “Magic” Number
• Same number of judges as Contracting Parties
• ECtHR:
47 judges
• ECJ:
28 judges
• Smaller number of judges than Contracting Parties
• ITLOS:
21 judges
• ICJ:
15 judges
• Iran-US Tribunal: 9 arbitrators
• WTO AB:
7 members
4
Number – Criteria to Consider
• Expected workload
• Number of cases; timeline; divisions; tasks; and support
• Flexibility
• Absences; language; conflict; nationality; administrative tasks;
Full-time vs Part-time
• Cost
• Representativeness
5
Number – Representativeness
• Equitable geographic distribution
• Principle legal systems of the world
• Gender distribution
6
Indicia from the Current System
• Caseload: around 70 new cases per year, with 75% based on IIAs
(52 cases)
• Rate of settlement or discontinuance before award: 34%
• Average length of case: 3 years
• Usual tribunal size: 3 persons
• Arbitrator time spent per case: average of 53 days a year per case
• Rate of applications for review: about 41% for ICSID annulment
and 68% for WTO AB
7
Factors Affecting Number of
Adjudicators Needed
• Number of cases initiated per year
• Size of divisions (1, 3, 5…)
• Mandatory time frames for completion of cases
• Rate of settlement
• Scope of review mechanism (grounds and standard of review)
• Extent of Secretariat support
• Administrative duties of adjudicators
8
How Are They Chosen? Nomination
• Usually a 2 step process: (1) nomination, then (2) selection
• Nomination Methods:
• By Contracting States: directly (ITLOS)
• By other groups: “National Groups” (ICJ)
• By an independent body: Regional Judicial and Legal
Services Commission (RJLSC) (Caribbean Court of Justice) or
screening process by an independent body (Art. 225 TFEU
Panel)
9
How Are They Chosen? Selection
• Selection Methods:
• By Contracting States: vote (ITLOS) , common accord (CJEU),
or by consensus (WTO AB)
• By a separate organ: UN General Assembly and Security
Council for the ICJ
• By an independent body: Regional Judicial and Legal Services
Commission (RJLSC) of Caribbean Court of Justice
10
Duration – How Long Do They Serve?
•
Length of tenure – no magic number
• ECtHR:
9 years
non renewable
• ICJ:
9 years
renewable once
• ECJ:
6 years
renewable once
• Iran-US Tribunal: indefinite
• WTO AB:
4 years
renewable once
•
Rotation process
•
Renewability
11
Case Assignment
• Usually, the Rules of the Court or its working procedures
provide how to allocate specific adjudicators to a specific
case
• Decision of the Court (ICJ)
• Distribution by lot – Drawing list (Iran-US Tribunal, CJEU, ECtHR)
• Rotation (WTO AB)
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Conclusions
• No uniform number in international courts
• Traditionally, States are primarily/exclusively involved in the
nomination and selection procedures
• Recent trend to independent body for candidate screening
• Terms generally between 4 to 9 years; rotation and
re-election must be factored in
• Important to decide whether smaller divisions will hear
cases/certain stages and if so, how these are determined
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