Catharine Titi’s recent article (Catharine Titi, The nationality of the international judge: Policy options for the Multilateral Investment Court, 280 Columbia FDI Perspectives, June 15, 2020) contemplates policy options for the future Multilateral Investment Court relating to the nationality of its judges; specifically, she focuses on 1) geographic representation in the Court in general and 2) whether smaller divisions of the Court should include national and ad hoc judges. Titi starts from the ideas that the nationality of a judge in an international court is relevant to his or her decision-making, and that courts should be representative of their membership. Id. at 1. She concludes that the Court should only select judges from qualified applicants within its membership, that the Court should strive for some kind of fair geographic representation, and that the Court should probably not allow national judges and ad hoc judges.
Titi writes in favor of limiting judges to the Court’s membership, which she says most international courts also do. She notes that this creates better representation of the member nations, especially given that not every individual country will have a national judge on the bench. Id. She even discusses the idea of growing the membership by promising seats on the Court. She also considers how the Court should frame its goals for geographic representation, noting that it would be more realistic for the Court to try to represent “the principal legal systems of the world” than to try to represent the “main forms of civilization.” Whatever the specific language, the idea is that the Court should strive to have some form of reasonable, equitable, or fair geographic representation of its membership. At the same time, she emphasizes that all judges must be professionally and personally qualified, and representation should not be achieved by compromising those standards.
She begins the discussion of national judges by noting that, if a country is a disputing party, most international courts will allow a judge from that nation to hear the case. Id. When there isn’t a national judge for that country, the country can choose a judge ad hoc. On the other hand, most human rights courts (which usually involve a dispute between private parties and their home nation) do not allow for national and ad hoc judges. Titi writes that the Multilateral Investment Court will mostly hear cases initiated by private parties against foreign states, and that most cases will probably be decided by divisions of three judges (sometimes individual judges). Because of this setup, countries often won’t have a national judge in a panel of three, so they will then select ad hoc judges; this would make the process more similar to arbitration, and more logistically complex. Id. These complexities would be compounded if there is only a single judge rather than a panel, or if investors also claim the right to choose a judge ad hoc. Id. Because of these complexities, she concludes that it could be better to not include national or ad hoc judges for this Court.
While reaffirming her support for these moves, Titi notes that the exact policies the Court should adopt may depend on the overall design of the Court, which is not yet known.
For more information, see Catharine Titi, The nationality of the international judge: Policy options for the Multilateral Investment Court, 280 Columbia FDI Perspectives, June 15, 2020, at 1-3, http://ccsi.columbia.edu/files/2018/10/No-280-Titi-FINAL.pdf.