Nationality and Representation in the Composition of the International Bench: Lessons from the Practice of International Courts and Tribunals and Policy Options for the Multilateral Investment Court
CERSA Working Papers on Law and Political Science 1/2020
78 Pages Posted: 29 Jan 2020 Last revised: 10 Feb 2020
Date Written: January 15, 2020
There is little doubt that the nationality of the international adjudicator matters. Judges sitting on international courts have often arrived on the bench after a career in government and may identify with the interests of their home state. Empirical data shows that a judge called to decide a case involving the state of his or her nationality (national judge) tends to vote in its favour. Yet nationality is not only relevant as an argument to discredit a judge who is seen as partial to his or her home state: it also confers legitimacy on international dispute settlement. International courts must be representative of their membership and representation calls for the inclusion of diverse nationalities in their ranks. In light of the ongoing efforts to establish a multilateral investment court, the paper considers nationality and representation in the composition of international courts and tribunals. It reviews, on the one hand, nationality and geographical representation on the court as a whole and, on the other, the presence of national judges and judges ad hoc in specific chambers or divisions. The paper assesses the reasons that lead different courts and tribunals to regulate nationality and representation differently, it analyses newly-collected data and draws normative conclusions. Ultimately, it makes policy suggestions for the multilateral investment court. Its overarching thesis is that an international court must be representative of its membership but that the presence of national judges and judges ad hoc in particular chambers or divisions depends on the function of a court. In relation to the multilateral investment court, the paper expresses scepticism about the presence of national judges and judges ad hoc in divisions of three constituted to decide investor-state disputes.
Keywords: international courts and tribunals, multilateral investment court (MIC), investor-state dispute settlement (ISDS), nationality, representation, geographical representation, judge ad hoc, ICJ, ITLOS, Inter-American Court of Human Rights, European Court of Human Rights, composition of a court, ICSID
JEL Classification: K33, F02, F02, F13, F21, H77, E22, K41, K49, K40, K39, K30, K20, K29, K10, K19
Suggested Citation: Suggested Citation