Party-Selected Judges and Arbitrators in International Proceedings - Research Paper Example

Party-Selected Judges and Arbitrators in International Proceedings Introduction In international legal proceedings, whether judicial or arbitral, parties may be given an opportunity to select or appoint a judge or arbitrator of their choosing to the judges’ or arbitration panel. Under the Statute of the International Court of Justice, for example, parties are given the prerogative to appoint an ad hoc judge who will sit in the court during the period the case is being heard. On the other hand, under the Rules of Arbitration of the International Chamber of Commerce, an international representative body of the largest group of business organisations located in more than 130 countries, 1 the parties select their arbitrators, a practice mirrored in other arbitration proceedings, making it a defining characteristic of the process. In both types of proceedings, party-selected or party-appointed judges and arbitrators are seen as a positive way of encouraging parties to resort to international legal processes in resolving conflicts. This is primarily because the act of appointing or selecting judges or arbitrators gives parties the feeling of control, to a certain extent, of the proceedings rather than being totally overwhelmed or alienated by a proceeding whose rules and practices may be distinctively different from their respective municipal and local laws and practices. 1.0 Ad Hoc Judges in International Proceedings 1.1 Background Article 31 of the ICJ Statute provides that when the judge of a chamber has the same nationality with one or more parties, this in itself does not inhibit him from sitting and participating in the case. However, the other party is automatically granted the prerogative to appoint another person, called ad hoc judge, of its own choosing to sit in the Court as well. In the event no such condition occurs, both parties have the right to appoint each judge of their respective choosing. 2 Thus, in South West Africa Cases, 3 South Africa was allowed to appoint the Judge President of the Cape Provincial Division, Mr. Justice J T van Wyk, to sit in the Court. Similarly, John Dugard, a South African International Law professor, was appointed by Rwanda as its ad hoc judge in a case against Congo. 4 5 Also, in the 1984 case of Gulf of Maine,6 Canada was allowed to appoint one ad hoc judge, whilst in a 1992 case the state parties El Salvador and Honduras both appointed ad hoc judges of their respective choosing, 7 during the creation of the chamber for that particular case in 1989 and when the case was appealed in 2002 by El Salvador. Court chambers of the ICJ have no defined number of judges and may theoretically be made up of a lone judge and as many as practicable but nine is considered the quorum of the full Court, hence, a chamber with more than seven judges is thought impractical. In the cases aforementioned, there were five judges sitting in their respective chambers with two of them serving as ad hoc judges. 8 1.2 Role, Desirability and Independence of Ad Hoc Judges in ICJ Chambers Section 1, Article 31of the ICJ Statute conditions party-appointment of ad hoc judge with the presence in the Chamber of a judge who is a national of the state of the other party. The implied rationale of the appointment of the ad hoc judge is to counterbalance such presence. This point of view however, is cast with doubt by the third provision in the same article, which states that in the event this is not present, then the parties may proceed to appoint judges of their own choosing. Thus, the ‘counterbalancing’ idea seems to give way in favour of the theory that the real role of ad hoc judges is to encourage state parties to resort to the ICJ to settle international disputes. But more significantly, however, the role of the ad hoc judge is to aid the Court in understanding the point-of-view of the parties so that the former can fairly assess and issue appropriate decisions. The advantage that an ad hoc judge’s presence gives is that he is in the best position to understand the perspectives of the state party having originated from the same state. He therefore, plays the role of a legal mediator between the state party and the Court, employing his or her expertise of the national laws of the state. Although the Court is expected to apply the same law for all parties and all cases with similar issues, it is important for the Court to be apprised first of all relevant issues and facts. 9 The practice of giving the parties the power to appoint ad hoc judges has been criticised as being a remnant of an old practice common in arbitration proceedings. It has been assailed as improper in a court that is characterised as permanent. Nevertheless, the ICJ does not only have a legal function but also political and diplomatic as well. It does not only adjudicate and resolve conflicts but also functions to encourage states to resolve their conflicts and disputes through peaceful means with it as a mediating party. The ICJ must not only show competence but also encourage trust. Having a judge in Court that understands one’s position who can help expound on pertinent issues, necessarily gives a state party more confidence to resort to and submit itself to the jurisdiction of the Court. This is a positive effect not only on the parties but on the ICJ as well and this is evident from the history of the ICJ. Records show that except for one single time, state-parties never fail to exercise this right when granted, perceiving it to be part and parcel of their legal strategy. 10 Moreover, the criticism that the practice is affecting the credibility of the ICJ is not correct because ad hoc judges are often perceived to be not in the same league as regular judges, including national judges. Regular judges are elected through processes in the General Assembly and Security Council, something that ad hoc judges do not go through, although both types of judges are of equal stature as so provided in the Statute. Moreover, ad hoc judges are seen to be exercising different functions vis-à-vis regular judges because whilst the latter clearly takes into consideration the case in its entirety on the basis of the facts and issues presented to it, the ad hoc judge is considered to be limited in his or her concerns. Thus, the difference is perceived as decision-making as opposed to clarificatory. 11 The bottom line is that ad hoc judges serve a psychological go-between the state party appointing it and the Court. The prerogative to appoint ad hoc judges of their own choosing ensures a party that it has an ally in Court, who is part of the Court itself. 12 Moreover, appointing an ad hoc judge is an indication of participation in the proceeding and will make the state party more likely to abide by the ICJ decision, providing a psychological estoppel to potential defiance of an adverse ruling. Considering that the ICJ’s jurisdiction is based on the voluntary acquiescence of state parties, such a perception and appearance that can lead to party confidence in the Court is indeed a positive achievement. 13 2.0 Party-Selected Arbitrator 2.1 Background Arbitration proceedings are generally classified into administered (or institutional) and ad hoc. The distinction between the two is that administered arbitration is one that is overseen by an arbitral institution whilst an ad hoc arbitration is supervised by the arbitration tribunal. In both cases, parties may agree to appoint their arbitrators although this is more certain in ad hoc arbitration because accepting the jurisdiction of an arbitration institution carries with it the implication of recognition of its authority to appoint arbitrators. On the other hand, arbitration proceedings in ad hoc arbitration are generally determined by the parties. 14 Most contracts between parties, insert a clause that provides for arbitration details in the event that disputes arise in the future. At the ICC, parties are allowed to nominate their choices of arbitrators and in the event of lack of consensus; the ICC Court makes the appointment on the basis of the recommendations of the National Committees. ICC records showed that in 2007, the National Committee recommendations were made the basis of 77% the Court’s appointments, the parties agreed to make the appointment in 19% of the cases and in 4% of the cases, the ICC Court made direct appointments. 15 2.2 Role, Desirability and Independence of Party-Appointed Arbitrators The appointment of arbitrators by the parties to the proceeding is made during the preliminary phase of the process and it makes up the one most single stage of the proceeding for the parties. The selection of arbitrators is often intertwined with the direction of the conduct of the arbitration during the main stage and the potential of ability of either party to obtain fair hearing. There are two occasions where parties select and appoint arbitrators in an arbitration proceeding. First, parties individually appoint one arbitrator each in a three-arbitrator proceeding. The arbitrator a party must choose must be independent of the party appointing him. Second, both parties must agree as to the presiding arbitrator should be although the parties can delegate this aspect to the arbitrators they have already chosen. 16 Parties are limited by international rules on arbitrator selection and private communication with arbitrators for the purpose of discussing the merits of the case in selecting or influencing the arbitrators they personally appointed to the arbitration panel, but a party can still appoint an arbitrator that can subtly favour his case. For example, international arbitration rules require a party to choose an arbitrator who is not a national of the state of which he, she or it is an origin of, unless the other party agrees. 17 The requirement of independence and impartiality of arbitrators are basic requirements in arbitrator selection and is expressed in various ways by the different rules of international arbitration. Independence is often measured by the absence of past and present connection between the parties and is therefore easily discernible, whilst impartiality is often linked with one’s state of mind and is therefore more difficult to discern. 18 Nevertheless, the parties can still influence the conduct of the proceeding with their choices of arbitrators and still be within the bounds of arbitration rules. For example, it would be best for a party to appoint an arbitrator with a “style’ of arbitration that will distinctly shape the direction of the arbitration that will most benefit it. If the party wants the arbitration to imitate the arbitration style of a particular domestic arbitration model, the party should choose an arbitrator coming from that particular locale who has served an important position in the past as a practicing judge or counsel. Thus, if a party wants a London arbitration kind of proceeding because the rules and procedures of London arbitration best served his position, he could appoint an English Queen’s Counsel or a retired High Court judge. But if the party wants to stay out of the London style of arbitration as much as possible, the best arbitrator to appoint is one who is engaged in the active practice of international arbitration such as a continental professor of law. 19 There is indeed a saying known in the arbitration world as “An arbitration is only as good as the arbitrator,” which emphasises the importance of the arbitrator selection process. 20 Although the role of party-appointed arbitrators, also called co-arbitrators, are not precisely outlined in various international arbitration rules, the consensus is that they serve the important function similar to those of party-selected judges in international proceedings, that is, they clarify a party’s position in a way that could be understood by the entire arbitration tribunal or panel. This is not tantamount to “blindly espousing the case of the appointing party.” 21 A survey conducted showed that there is no particular overwhelming preference for list-appointed arbitrators over party-appointed arbitrators, implying that even party-appointed arbitrators are seen as neutral parties and hence, party-appointed or list-appointed arbitrators are not expected to conduct themselves differently from each other. Like the party-appointed judges in international legal proceedings, the ability of parties to partly control the arbitration proceeding through selection of arbitration has a positive effect of giving parties confidence and trust in the arbitration process. 22 3.0 Conclusion In internal legal and arbitral proceedings, party-selected and party-appointed arbitrators and judges play distinctive useful and practical roles. Firstly, their presence encourage parties to submit themselves to the court or arbitral body’s jurisdiction asured by the idea of the presence in court or tribunal of someone who can help them clarify and expound on their positions vis-à-vis international laws. It has been established that parties never fail to use this prerogative especially in international courts and tribunals implying the trust and reliance given by parties to this process. Secondly, party-appointed judges and arbitrators serve as useful guides and interpreters of municipal laws that may present some variation from internationally accepted international laws. Moreover, it has been established that the public does not degrade the court or tribunal’s credibility simply because of the presence of such party-appointed judges or arbitrators because ad hoc judges do not undergo the extensive election process that regular judges go through, in the case of the ICJ, and that arbitrators are not expected to veer away from independent conduct because their reputation as arbitrators in the international stage are at stake. In this sense, party-selected or party-appointed judges or arbitrators are a desirable practice in international legal proceedings if only because they encourage the use of peaceful resolutions to conflicts. References: Case Concerning Armed Activities on the Territory of the Congo (DRC v Rwanda), Provisional Measures 2002 ICJ Reports 219; (2002) 41 ILM 1175. Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, 12 October 1984. Drahorzal, C.R. & Naimark, R., Towards A Science Of International Arbitration: Collected Empirical Research (Kluwer Law International, 2005). Dugard, J. International Law: A South African Perspective, 3rd Edn (Kluwer, Cape Town 2006). Gill, T. D. Litigation Strategy at the International Court: A Case Study of The Nicaragua V. United States Dispute (Martinus Nijhoff Publishers, 1989). Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), 11 September 1992. Links to ICC Member Companies http://www.iccwbo.org/id19696/index.html. McIlwrath, M. & Savage, J. International Arbitration and Mediation: A Practical Guide (Kluwer Law International, 2009). Merrills, J.G. International Dispute Settlement, 4th Edition (Cambridge University Press, New York 2005). Rubino-Sammartano, M, International Arbitration Law and Practice, 2nd Edn (Kluwer Law International, The Netherlands 2001). Singh, N. The Role and Record of the International Court of Justice. Martinus Nijhoff Publishers, 1989. South West Africa (Ethiopia v El Salvador) and South West Africa (Liberia v South Africa) 18 July 1966. Statute of the International Court of Justice. Read More