Blog: Appointment of International Judges and Arbitrators: Perspectives from Different Institutions
On 18 October 2019, we put together a joint BIICL/University of Liverpool event on the appointment of international judges and arbitrators. The idea was to look at common trends and divergences between various international courts and tribunals with a particular focus on legitimacy and the rule of law.
Diversity as legitimacy
I presented my views on the split between the public and private adjudication and how it may undermine the legitimacy of various institutions. For instance, the largest groups of states which appear as respondents in investor-state disputes are Latin American and the CIS states. However, the largest groups of adjudicators come from Western Europe and North America. This creates an apparent geographical mismatch absent in international courts or even commercial arbitration where arbitrators are usually experts in applicable domestic law.
My experience participating in conferences of UNCTAD and UNCITRAL suggests that some developing states feel that the foreign arbitrators pass judgements on sensitive matters without knowing much about the national laws, traditions and policies of the affected regions. That undermines the effectiveness and legitimacy of the investor-state dispute resolution system.