Roster v. standing body

168. Earlier in this report we have already addressed the distinction between a (i) semi-standing or roster model, in which disputing parties participate in the constitution of the chamber; and (ii) a standing or permanent tribunal model, in which disputing parties play no role in such constitution. In the first option, the assignment of an actual case coincides with the constitution of the chamber. In

402 See supra paras. 90, 97 (on incompatibilities); para. 88 (on salary and financial security); and para. 86 (on security of tenure).

403 By contrast, this section does not deal with internal decision-making procedures (including conduct of deliberations, drafting of the award/decision, and dissenting opinions, if allowed). Although these are important questions that will need to be addressed, they do not relate to composition. They are matters for a different study and, at least as far as deliberations and drafting procedures are concerned, will most likely be addressed in the Rules of the ITI rather than in its Statute.

404 See supra para. 7 and references.

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the second, other methods must be devised to assign a pending case to a chamber. The assumption in the second constellation is that the standing body will decide at least some disputes in chambers rather than in full court. Indeed, if all the disputes were decided in full court, no case assignment issues would arise and the adjudicatory institution would simply rule in the composition that would result from the selection process discussed in section III.C.

169. The choice between a roster and a permanent adjudicatory body is a policy choice that is for States to make. Looking at the big picture, one can highlight the following main advantages and drawbacks of the two models, each of which will have supporters and detractors.

170. A roster model would most likely encounter the favor of those potential disputing parties who value the ability to appoint “their” adjudicator and to influence the choice of the chair. This may apply primarily to investor-claimants, although certain respondent-States may similarly be attached to the “sense of ownership” over the composition process that derives from the disputing parties’

participation in the formation of the adjudicative body.

In this perspective, a roster model would allow disputing parties to select ITI members, among a restricted pool, based on past performance, specific expertise, skills and background, in a way that is similar to arbitration which is often said to favor meritocracy and competence.

171. Furthermore, States favoring a one-State-one-judge model may find a roster preferable to a permanent court or tribunal. As noted earlier, full

405 See generally Veeder (2015), p. 402. In international commercial arbitration, certain empirical studies would appear to confirm that the ability to participate in the selection of the arbitrators remains a key attraction for users. See Born (2014), p. 1639, discussing Christian Bühring-Uhle (2005), A Survey on Arbitration and Settlement in International Business Disputes, in Christopher Drahozal, Richard Naimark (eds.), Towards A Science of International Arbitration: Collected Empirical Research, Kluwer Law International, pp.

25, 33 and the Queen Mary, University of London (2012), 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process, pp. 5-6.

406 See e.g. Charles N. Brower (2013), Remarks at the Leading Figures in International Dispute Resolution Series - The Future Of International Arbitration: Is The Past Prologue?, Interest Group on International Courts and Tribunals, ASIL, 17 January 2013, available at https://www.asil.org/conversation-judge-charles-n-brower-future-international-arbitration quoted in Giorgetti (2014b), p. 472 (opining that disputing party appointment is the “ultimate meritocracy” because an arbitrator’s behavior is continuously scrutinized for potential appointments and “he is somewhere in the world always up for re-election”).

See also Filippo Fontanelli, Koorosh Ameli, Ilias Bantekas, Horia Ciurtin, Nikos Lavranos, Mauro Rubino-Sammartano (2016), Lights and Shadows of the WTO-Inspired International Court System of Investor-State Dispute Settlement, European Investment Law and Arbitration Review, Vol. I, pp. 191-266, 253-254; Susan Franck (2005), The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Fordham Law Review, Vol. 73(4), pp. 1521–1625, 1597;

Thomas W. Wälde (2006), Investment Arbitration and Sustainable Development: Good Intentions - or Effective Results?, Transnational Dispute Management, Vol. 3(5), p. 6.

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representation can be accommodated more easily in a roster than in a permanent court.

States who wish to secure “their” ITI member on the bench without having to compete with more powerful sovereigns in an election battle for limited seats may thus find a roster more attractive.

172. Finally, a roster may strengthen the idea that the process should be viewed as “arbitration”, especially for enforcement purposes, if that were to be the States’ preference.

173. This notwithstanding, a roster presents several drawbacks, which may be viewed as corresponding advantages of a permanent model. First, a roster model would not address the existing criticism of disputing party-appointment which is regarded by many as one of the most critical features of the current system.

The roster system would perpetuate concerns over adjudicator bias in favor of the appointing disputing party and over the resulting excessive power placed in the hands of the chair of the chamber. These concerns were already considered by Broches in the course of the drafting of the ICSID Convention

and have resurfaced recently.

174. Furthermore, one can anticipate that in a roster model, ITI members may be tempted to profile themselves as either pro-investor or pro-State in order to secure appointments, with an ensuing risk of polarization. Compared to the current system, these risks could worsen when shifting to a model where choice is restricted to a limited pool of adjudicators.

175. States may consider these pros and cons when opting for either model. If States wish to make only some adjustments to the existing system, rather than more radical changes, then a roster may be an option. By contrast, if States prefer to pursue the establishment of a permanent body, which departs from the

407 See supra paras. 23-24.

408 See CIDS Report, para. 171.

409 See CIDS Report, para. 171, sections II.D and III.B.

410 See History of the ICSID Convention, Vol. II-1, p. 40 (where Broches noted that the proposed draft convention adopted “what is probably the most usual method for the constitution of an arbitral tribunal”, although it could “be argued that it is the least desirable method because of the danger that each party will look upon the arbitrator to be appointed by it as an advocate. Under this pessimistic assumption the umpire would be the only true arbitrator”).

411 In connection with the debate pertaining to dissenting opinions by party-appointed arbitrators see the sources supra at fn. 93. In a recent ICSID case, a dissenting arbitrator reflected on the role of party-appointed arbitrators within the ICSID system, describing the

“true ethical burden” placed on party-appointed arbitrators “to separate themselves from the interest of those who have selected them to serve”, and concluding that the

“appointment by a party of a judge to rule on the party’s claim creates an unnecessary barrier to pure objectivity” and “an uncomfortable aura of conflict which permeates […]

the proceedings”. See Supervision y Control S.A. v. Republic of Costa Rica, Dissenting Opinion by Joseph P. Klock of 18 January 2017, ICSID Case No. ARB/12/4, pp. 13-14.

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existing

current critical features, but would rather replicate the existing problems.