SELECTIVE REPRESENTATION BODIES
21. A threshold issue in the design of the composition of a permanent dispute settlement body is the number of members and, in this respect, whether States wish to establish “full representation” or “selective representation” bodies. In full representation bodies, each State has an adjudicator on a permanent basis, usually a national of that State; in selective representation courts, there are fewer seats than the number of States parties to the court’s statute.
31It is convenient to treat this distinction first, as it impacts other considerations, such as the identification of the requirements (section III.B) and the procedure for the selection of the members (section III.C).
22. This distinction is only relevant for multilateral, rather than bilateral, standing bodies. In permanent courts or tribunals with two contracting parties
31 For this distinction, see generally, Ruth Mackenzie, Kate Malleson, Penny Martin, Philippe Sands (2010), Selecting International Judges: Principle, Process, and Politics, Oxford University Press, pp. 7-10. For the avoidance of doubt, it should be stressed that in none of these two models are the adjudicators viewed as “representatives” of a contracting party, as in the modern conception of the international adjudicatory function, international judges and arbitrators do not “represent” their home country, but act in their personal capacity and must be independent and impartial. See infra at III.B.4.
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only, each contracting party will normally be entitled to appoint an equal number of members. Thus, at the Iran-U.S. Claims Tribunal (“IUSCT”), the two contracting parties each appoint one third of the tribunal’s members, and these members appoint the remaining third, including the tribunal’s president.
32For these purposes, the standing bodies provided in the Canada-EU Comprehensive Economic and Trade Agreement (“CETA”) and the EU-Vietnam Free Trade Agreement (“EU-Vietnam FTA”) may be classified as bilateral, because there are essentially two sides in the appointment process (although they of course include all of the EU Member States, in addition to the EU and the non-EU trade partners).
3323. With regard to multilateral adjudicatory bodies, examples of full representation or “one-State-one-judge courts” include regional courts such as the Court of Justice of the European Union (“CJEU”)
34and the ECtHR.
35Tellingly, no global court or tribunal follows this composition model. By contrast, there are a number of selective representation courts on both the regional
36and global level. The most important international courts and tribunals on a universal scale, the ICJ, the ITLOS, the International Criminal Court (“ICC”), and the WTO AB, all comprise a lower number of adjudicators than contracting parties. In those
32 See Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (“Claims Settlement Declaration”), 19 January 1981, 20 ILM 223, 230 (1981), Art. III(1). If no agreement is reached between the contracting party-appointed members, the appointment is made by an appointing authority. See IUSCT Rules of Procedure, 3 May 1983, Section II.
33 Thus, in the CETA, appointments are made by a Joint Committee (which, pursuant to Art. 26.1, comprises “representatives of the European Union and representatives of Canada”). The Joint Committee appoints fifteen tribunal members, of whom five shall be nationals of a Member State of the EU, five shall be nationals of Canada, and five shall be nationals of third countries (Art. 8.27.2). The Joint Committee also appoints members of the appellate tribunal, in a number to be later established by the Joint Committee. See Art. 8.28.3). Similarly, in the EU-Vietnam FTA, Chapter 8.II, Section 3, Art. 12(3) and Art.
13(2). Unless indicated otherwise, all references to the EU-Vietnam FTA should hereinafter be understood as references to Section 3 on Dispute Resolution under Chapter II of Chapter 8 of the EU-Vietnam FTA.
34 Treaty on the Functioning of the European Union (“TFEU”), as amended by the Treaty of Lisbon (2007), 2008 OJ C 115/47, Art. 253.
35 ECHR, Art. 20.
36 See Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court of Human and Peoples’ Rights (“Protocol on the African Court”), OAU/LEG/MIN/AFCHPR/PROT.1 rev.2 (1997), Art. 11; Agreement Establishing the Caribbean Court of Justice, 14 February 2001, Art. IV; American Convention on Human Rights (“ACHR”), 21 November 1969, 1144 UNTS 123, Art. 52;
Statute of the Inter-American Court of Human Rights (“IACtHR Statute”), October 1979, OAS Res No. 448, Art. 4.
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courts and tribunals, the number of members composing the body varies between 7 and 21.
3724. For the ITI, the choice between full or selective representation and, if the latter is adopted, the determination of the number of adjudicators, will mainly depend on the following factors. First, the larger the multilateral basis, the more difficult it is to ensure that each State has “its” ITI member. Indeed, a permanent body with a high number of members is expensive and complex to manage. It is thus not a surprise that global international courts and tribunals show a preference for selective representation.
38This said, fully representative courts with large membership do exist too, although not at the global level.
39Second, the choice between a permanent and semi-permanent (roster) model may impact the number of ITI members. Indeed, in a roster system in which the disputing parties may choose the decision-makers for specific disputes from a list of pre-selected ITI members, a one-State-one-judge model is easier to implement than in a permanent setting. Moreover, whether it is conceived as fully representative or not, the number of members in a roster model is likely to be higher than on a permanent body. Indeed, the purpose of a roster is precisely to offer disputing parties
some choices. Furthermore, a higher number is more easilyaccommodated, in terms of costs and manageability, in a roster than in a permanent body, as in the former the extent of the ITI members’ institutional functions will necessarily be more limited than in the latter.
25. Second, within the ITI option, the first-instance level body is likely to comprise a higher number of members than any second level (appeal, annulment or other). This is the consequence of the fact that appeals would not be filed in all cases and, thus, fewer cases would be adjudicated at the second-level. It would be in line with existing international courts and tribunals comprised of two instances, in which the total number of members on the appellate body is lower than on the full first-instance bench.
40For the ITI option, one could even design a
37 The WTO AB is composed of seven members (see DSU, Art. 17(1)); the ICJ is composed of 15 judges (see ICJ Statute, Art. 3(1)); the ICC of 18, divided in three divisions – Pre-Trial, Trial, and Appeals (see Rome Statute of the International Criminal Court (“Rome Statute”), 1 July 2002, 2187 UNTS 90, Art. 36); and the ITLOS of 21, (see Statute of the International Tribunal for the Law of the Sea (“ITLOS Statute”), UNCLOS, Annex VI, Art. 2(1)).
38 See, e.g., WTO AB; ICJ; ITLOS; ICC.
39 For example, 47 States are contracting parties to the ECHR and the ECtHR, established under that Convention, is a one-State-one-judge court.
40 See the ICC, in which the pre-trial and trial divisions include no less than six judges, whereas the appeals Division is composed of the President and four other judges. Rome Statute, Art. 39(1); the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), in which three trial chambers are composed of nine judges each (three permanent, six ad litem), and the appeals chamber consists of seven judges. Statute of the International Criminal Tribunal for the Former Yugoslavia, as amended by GA Re 1877, (“ICTY
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“blended” system, in which the first-instance level is fully representative and the second-level body is selectively representative.
26. Finally, the number of adjudicators composing the ITI may need to evolve over time, due to increasing membership of contracting parties and/or increasing caseload. The latter aspect is in turn likely to depend on the former. As more States join the ITI Statute and incorporate the new dispute resolution options into new IIAs or opt into them for existing IIAs, more disputes will become subject to the jurisdiction of the ITI. The ITI Statute may thus foresee the possibility of an increase in the number of adjudicators. Existing international courts and tribunals provide illustrations of these sorts of adjustments.
4127. More specifically, in a full representation ITI, the number of adjudicators will be adjusted each time a new contracting party joins the Statute. In a selective representation model, revision clauses may set out a procedure for the gradual increase in the number of adjudicators. For example, a procedure to increase the adjudicators may be triggered once a certain level of State membership is reached (without this implying full representation)
42or, irrespective of any growth in treaty membership, once an upsurge of cases makes an increase of ITI members necessary or appropriate.
43Statute”) 7 July 2009, 32 ILM 1159 (1993), Arts. 11-13 ter; the EU-Vietnam FTA, in which the first instance tribunal consists of nine members (Art. 12(1)), whereas the appeal tribunal is composed of six members (Art. 13(2)). However, once a case is assigned to the appellate body, the latter normally decides in a larger composition than the first-instance tribunal, which in turn may be motivated by the greater importance attached to the second-level decision. For instance, three judges are assigned to hear a case at the ICTY trial chamber, while the appeals chamber hears each appeal by a bench of five judges, ICTY Statute, Arts. 12(2), 12(3).
41 See e.g. Claims Settlement Declaration, Art. III(1), first sentence (“The Tribunal shall consist of nine members or such larger multiple of three as Iran and the United States may agree are necessary to conduct its business expeditiously”, emphasis added); Rome Statute, Art. 36(2) (“The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1 [i.e., 18 judges], indicating the reasons why this is considered necessary and appropriate”); CETA, Art. 8.27.3 (“The CETA Joint Committee may decide to increase or to decrease the number of the Members of the Tribunal by multiples of three. […]”); EU-Vietnam FTA, Art. 12(3) (“The Trade Committee may decide to increase or decrease the number of the Members of the Tribunal by multiples of three. […]”).
42 For instance, once the ITI Statute enters into force with X ratifications, the ITI may be composed of Y members; if the State membership were to increase to X + 10, the total number of judges would increase by Z; and so on.
43 See examples cited in fn. 41 above.
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B. WHO OR THREE KEY REQUIREMENTS:COMPETENCE, DIVERSITY AND