Diversity and the Principle of Independence and Impartiality

in the Future Multilateral Investment Court (MIC)

Katia Fach Gómez*

Abstract: This article starts from the assumption that the future Multilateral

Investment Court (MIC) will be shaped by a new and different type of international

investment adjudicator (IIA), and it focuses on the diversity issues that will need to be

addressed during the court’s creation. In this article, diversity is understood in a broad

sense that includes questions related to IIA gender, race, geographical origins and legal

background. The article argues that diversity may in fact evolve into one of the MIC’s

key collective composition rules. It also sets out some of the grounds in favour of

diversity in the MIC, and considers the specific ways in which diversity may permeate

the constituent process for the MIC roster and its modus operandi. A further common

thread is provided by the links between diversity and the principle of independence and

impartiality, which will be a crucial MIC duty.

Keywords: Diversity, Gender, Independence, Impartiality, International

Judge, International Court, European Union, Multilateral Investment Court.

*
This chapter is part of a research project financed by the Humboldt Stiftung. The author is tenured
Professor of Private International Law at the University of Zaragoza (Spain), member of the Institute of
European Law and Regional Integration (IDEIR) at the Complutense University of Madrid, and member
of the Spanish research projects DER2016-80568-R (subprograma Retos) and e-Procofis S 14/3 DGA.
[email protected]. Please use this citation when citing this work: Katia Fach Gómez,
“Diversity and the Principle of Independence and Impartiality in the Future Multilateral Investment
Court”, in 17 The Law & Practice of International Courts and Tribunals, nº 1, 2018.

Electronic copy available at: https://ssrn.com/abstract=3100951

 1.! Introduction

Party-appointed arbitrators have always been a cornerstone of the classic

investor-state dispute settlement (ISDS) system. Their incisive elimination by the

European Union (EU) in texts such as the EU-Vietnam FTA, TTIP, and the 2016 CETA

represents a genuine shake-up, the effects of which are yet to be felt. The appearance of

new committee-appointed figures in the form of “members of the tribunal”, or “judges”

in some of these documents has generated a lively debate between defenders of the

classic system and others who applaud this radical change.

In recent years the EU has also promoted the setting up of a multilateral

investment court (MIC), (both in some of the texts referred to here and also in parallel)

in which party-appointed arbitrators would be replaced by “tenured, highly qualified

judges, obliged to adhere to the strictest ethical standards”.1 In connection with this, the

European Commission has recently released a Recommendation which, if adopted by

the Council, would enable the EU to take part in negotiations for a convention

establishing a MIC.2 UNCITRAL is also expected to give some consideration to

implementing a new international investment adjudicator (IIA) profile, and in July 2017

entrusted its Working Group III with a broad mandate to work on a possible reform of

ISDS3.

1
http://trade.ec.europa.eu/doclib/press/index.cfm?id=1608.
2
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1505306108510&uri=COM:2017:493:FIN.
3
http://www.unis.unvienna.org/unis/en/pressrels/2017/unisl250.html. The latest document drafted at the
time of writing states that: “If it wishes to consider to pursue reforms to the ISDS regime, the Working
Group may wish to examine, among other questions: (…) Whether reforms to address specific issues (for
instance (..) party-appointment and consequential issue relating to arbitrators’ independence and
impartiality) might sufficiently meet those policy objectives (…). Possible adjustments to the existing
ISDS regime may include: Alternative methods for appointing arbitrators (see document A/CN.9/917,
paras. 26 and 27), such as streamlining the appointment process and designing a system with a pool of
members that would form a new adjudicative body. The Working Group may wish to note that a

Electronic copy available at: https://ssrn.com/abstract=3100951

 Taking as a starting point the assumption that any future MIC will be shaped

by a different type of IIA, it seems necessary to study these somewhat mysterious IIA

figures in more depth.4 This article therefore focuses on one very specific issue5: the

diversity considerations to be worked on from the perspective of implementing these

international initiatives. Understood in a broad sense that includes gender issues as well

as aspects related to race, geography and legal background,6 diversity is a particularly

relevant topic. It connects with key considerations such as the MIC independence and

impartiality7 as well as with the goals of transparency, effectiveness, credibility and

legitimacy that seek to hold sway in the international investment system.

The close connection between diversity and independence in the context of a

future MIC was recently raised by the Belgian government in a request for a European

forthcoming supplemental report by CIDS will address the matter of appointment of decision-makers
(arbitrators/adjudicators) (see also document A/CN.9/917, paras. 33-39)”, Possible reform of investor-
State dispute settlement (ISDS). Note by the Secretariat, 18 September 2017, A/CN.9/WG.III/WP.142,
https://documents-dds-ny.un.org/doc/UNDOC/LTD/V17/067/48/PDF/V1706748.pdf?OpenElement.
4
The latest EU documents pay surprisingly little attention to the figure of the MIC judges. In addition, the
brief allusions in the TTIP context are neither especially precise nor enlightening: “the judges would have
very high technical and legal qualifications, comparable to those required for the members of permanent
international courts such as the International Court of Justice and the WTO Appellate Body”. Reading
Guide to the Draft text on Investment Protection and Investment Court System in the Transatlantic Trade and Investment
Partnership (TTIP). http://trade.ec.europa.eu/doclib/press/index.cfm?id=1365. The reflection made public in the context of
CETA, where it is pointed out that increasing MIC membership would require designing a review clause capable of facing these
challenges (e.g. in terms of geographical representativeness of adjudicators) is more precise. Discussion paper. Establishment of a
multilateral investment dispute settlement system Expert meeting 13 and 14 December 2016, Geneva,
http://trade.ec.europa.eu/doclib/docs/2017/january/tradoc_155267.12.12%20With%20date_%20Discussion%20paper_Establish
ment%20of%20a%20multilateral%20investment%20Geneva.pdf. See also infra Section 4.
5
Other issues connected with this topic, such as the analysis of statistics showing that women and
minorities are clearly underrepresented in the professional context of international arbitration, as well as a
good number of implemented or proposed measures aiming at remedying this situation, have already been
addressed in the article: Katia Fach Gómez, “Diversidad y género en el arbitraje internacional: entre los
hechos y los anhelos”, en K. Fach Gómez (ed.), La política de la Unión Europea en materia de derecho
de las inversiones internacionales/EU Policy on International Investment Law (2017), 279.
6
The notion of diversity can encompass a broad range of elements, among which the following stand out:
gender; race and ethnicity; culture; geographical issues; age (generational diversity); religious and
political beliefs; sexual orientation; socioeconomic status, and functional diversity – a term coined to
replace the notion of disability. A broad concept of diversity would also encompass what can be referred
to as diversity of experience, which covers factors such as global mindset and cultural fluency: Vivian
Hunt, Denis Layton, and S. Prince, Diversity Matters (2015), 1.
http://www.diversitas.co.nz/Portals/25/Docs/Diversity%20Matters.pdf. Reflecting on the notion of
diversity, Ingrid A. Müller, “Diversity and Lack Thereof Among International Arbitrators-Between
Discrimination, Political Correctness and Representativeness”, Transnational Dispute Management,
Special Issue on Dealing with Diversity in International Arbitration (2015) 1.
7
For the sake of brevity, the term “independence” is used throughout this article when referring to the
complex notion of “the principle of independence and impartiality”.

3
Court of Justice opinion on whether the investment court system (ICS) established in

CETA is compatible with EU law. More specifically, an opinion is pending on whether

appointing CETA members to the tribunal and the appeals body is consistent with the

right to an independent and impartial judiciary.8

2.! Diversity and the Multilateral Investment Court

With the MIC’s creation now likely to take place in the near future, it is worth

reflecting on the basis for justifying the inclusion of diversity criteria in this court. It

may also be useful to undertake a brief comparative review to determine whether the

diversity-related decisions taken when shaping other international tribunals may be

relevant to the configuration of the MIC.

2.1. Some Grounds for Favouring Diversity in the MIC

The first issue that inevitably arises when the topic of diversity in the MIC is

addressed concerns the need for and benefits of including groups categorized as

“underrepresented” in the new court. A thorough analysis of the issues presented in this

section would merit a genuinely interdisciplinary study focusing entirely on these

issues; even so, a few brief comments on three possible, but not exclusive, justifications

for diversity in the MIC may nevertheless be useful.

8
Note that the comparative parameter in this issue comes from the judicial context (“the right to an
independent and impartial judiciary”). This connects with a relevant characteristic of the MIC proposal
supported by the EU: it is openly promoted as a public justice system, which is honoured to resemble
national judicial systems at various points. That is why not only international courts but also national
legal systems are useful references in the context of this article. See for example, Council of Europe.
“Plan of Action on Strengthening Judicial Independence and Impartiality”, CM(2016)36 final,
https://rm.coe.int/1680700285.

4
 Very simply, the "difference theory", argues that minorities provide a unique

contribution to adjudicatory activity because of their different values and world view.9

The fact that their participation may lead to different outcomes from those produced by

a more homogeneous panel must therefore not be valued negatively.10

Another current of thought rules out this argument, either because it is

empirically questionable or because it is considered insufficient in itself and therefore

needs to be reinforced by others. The “legitimacy theory” holds that if an adjudicatory

body is to have public trust, it has to implement a diversity policy.11 It is now generally

agreed that investment awards - and therefore the awards to be made by a MIC -

produce effects on the daily lives of ordinary people, which is why adjudicatory

mechanisms need the approval of an increasingly sophisticated and globally connected

society.12 In this context, notions such as the public perception of fairness and the sense

of impartiality play a highly relevant role.

A third current takes a step forward and highlights the rule of law. Diversity

in adjudicatory courts is a logical and necessary sign of democratic representation.13 A

democratic society requires courts to be representative institutions, and all the more so

9
Tracy Robinson, “Why Diversity Matters”, in CEJIL, The Selection Process of the Inter-American
Commission and Court on Human Rights: Reflections on necessary reforms, 2014,
https://cejil.org/en/position-paper-no-10-selection-process-inter-american-commission-and-court-human-
rights-reflections; Gus Van Harten, “The (lack of) women arbitrators in investment treaty arbitration”,
FDI Perspectives (2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005336.
10
From this perspective, the price to pay for non-biased and fairer outcomes might be a lower degree of
predictability.
11
Focusing on gender issues in the judicial context, Kate Malleson, “Justifying Gender Equality on the
Bench: Why Difference Won’t Do”, Feminist Legal Studies (2003), 1.
12
Interesting in this regard is the extensive list of key stakeholder categories that the EU Consultation
Strategy has identified. http://trade.ec.europa.eu/doclib/docs/2016/october/tradoc_154997.pdf.
13
“Having professional dispute resolvers and professionals of both genders (and of racial, ethnic and
class diversity as well) is essential for the democratic representation of the parties in disputes”. Carrie
Menkel-Meadow, “Women in Dispute Resolution: Parties, Lawyers and Dispute Resolvers”, Dispute
Resolution Magazine, Spring (2012), 5, 8. Reflecting on the European context, Armin von Bogdandy and
Christoph Krenn, “On the Democratic Legitimacy of Europe’s Judges. A Principled and Comparative
Reconstruction of the Selection Procedures” in Michal Bobek (ed.), Selecting Europe’s Judges, 2015,
162.

5
if they are international courts. Sensu contrario, a homogeneous court is not sustainable

from the rule of law perspective14.

2.2. Diversity in other International Courts

A brief review of hard and soft law in the field of international courts and

tribunals shows that diversity has not yet acquired the status of a general and substantial

requirement in the supranational judicial context. The texts consulted for this article

devote much of their attention to outlining the judges’ individual qualifications, and

when dealing with collective requirements15 such as diversity, generally limit

themselves to including specific references that fail to cover all the main subtypes of

diversity.

There are, nevertheless, notable exceptions and initiatives: the 2004 Burgh

House Principles on the Independence of the International Judiciary states that,

“procedures for nomination, election and appointment should consider fair

representation of different geographic regions and the principal legal systems, as

appropriate, as well as female and male judges”16, while the 2011 Resolution of the

Institute of International Law includes the phrase, “States shall ensure an adequate

geographical representation within international courts and tribunals (…) the relevant

14
In the words of Jean-Marc Sauvé, President of the panel set up by Article 255: “[The Article 255
Committee] thus making its contribution (to a work that far exceeds it): the strengthening of the rule of
law and justice in Europe". (Author’s translation). Intervention de Jean-Marc Sauvé, vice-président du
Conseil d’Etat de France, Président du comité prévu par l’article 255 du Traité sur le fonctionnement de
l’Union européenne, devant la Commission des affaires juridiques du Parlement européen, Bruxelles,
(2013), http://www.conseil-etat.fr/content/download/3457/10399/version/1/file/2013-05-30_audition-au-
parlement-europeen.pdf.
15
Also called “collective composition rules” (in contrast to “individual selection criteria”). Ruth
Mackenzie, Cesare P. R. Romano, Yuval Shany and Phillippe Sands, Manual on International Courts and
Tribunals (2010).
16
ILA Study Group on the Practice and Procedure of International Courts and Tribunals, in association
with the Project on International Courts and Tribunals. 2.2: “While procedures for nomination, election
and appointment should consider fair representation of different geographic regions and the principal
legal systems, as appropriate, as well as female and male judges, appropriate personal and professional
qualifications must be the overriding consideration in the nomination, election and appointment of
judges”, http://www.ucl.ac.uk/laws/cict/docs/burgh_final_21204.pdf.

6
procedures [of selection of candidates] shall be such as to ensure the selection of

candidates (…) without any discrimination, in particular on grounds of sex, origin or

beliefs”.17

The most complete positive text on diversity in international courts is

probably Article 36.8 a) of the 1998 Rome Statute of the International Criminal Court

(ICC): “The States Parties shall, in the selection of judges, take into account the need,

within the membership of the Court, for: the representation of the principal legal

systems of the world; equitable geographical representation; and a fair representation

of female and male judges.18 It is also worth mentioning the gender practice developed

by the European Court of Human Rights (ECHR) regarding its judges, which will be

addressed later,19 and also the classic reference in Article 9 of the Statute of the 1946

International Court of Justice: “The electors [States] shall bear in mind (…) that in the

body as a whole the representation of the mains forms of civilization and of the

principal legal systems of the world should be assured”.20 This approach has been

reproduced in a regional context in texts such as Article 14.2 of the 2004 Protocol to the

African Charter on Human and Peoples' Rights on the Establishment of the African

Court on Human and Peoples' Rights: “The Assembly shall ensure that in the Court as a

whole there is representation of the main regions of Africa and of their principal legal

traditions”.21

17
Resolution of the Institute of International Law. The Position of the International Judge: “States shall
ensure an adequate geographical representation within international courts and tribunals (…)
Procedures of selection of candidates both at the national and international levels should support the
above-mentioned principles and should, as necessary, be improved to that end (…) In any case, the
relevant procedures shall be such as to ensure the selection of candidates having the required moral
character, competence and experience, without any discrimination, in particular on grounds of sex,
origin or beliefs”. http://www.idi-iil.org/app/uploads/2017/06/2011_rhodes_06_en.pdf.
18
http://legal.un.org/icc/statute/99_corr/cstatute.htm.
19
See infra section 4.3.
20
http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf. An almost identical text appears in Article 2.2 of the
Statute of the International Tribunal for the Law of the Sea.
https://www.itlos.org/fileadmin/itlos/documents/basic_texts/statute_en.pdf.
21
Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African
Court on Human and Peoples' Rights. This sentence is complemented by the following: “In the election of

7
 Texts such as these will undoubtedly be relevant when shaping the MIC’s

diversity policy towards its IIAs. However, as many issues are left hanging in the air,

the following sections of this article reflect on whether the MIC should take a step

forward in terms of diversity and, if so, what the most controversial issues to face would

be. The common thread running through these sections is the connection between

diversity and independence, as statements made in the past seems just as valid today, if

not more so: “It is questionable whether a racially and ethnically homogenous court

can ever be fully independent. In order to be wholly independent, the court must

represent the diversity of its peoples”.22

3.! Independence and Impartiality in the Multilateral Investment Court

The independence of the MIC is a key issue and raises a number of

fundamental questions from the outset. How should the notion of independence be

defined in the context of the MIC? Is it the individual independence of each court

member or the sum of them all? Or does a contemporary notion of independence cover

something else, a sort of MIC “collective independence”? Should the MIC fulfil a

collective duty of independence?

Although this is a very complex issue whose detailed analysis is outside the

scope of this article, a brief mention of some contextualizing ideas regarding IIA

independence is necessary. Multiple provisions in the investment arbitration framework

assert the need for arbitrators to be independent. For example, Article 14 of the 1965

ICSID Convention states that: “Persons designated to serve on the Panels (…) may be

relied upon to exercise independent judgment”, and –only- the Spanish version of this

the judges, the Assembly shall ensure that there is adequate gender representation”.
http://www.achpr.org/instruments/court-establishment/#12.
22
Referring to the ECJ and focusing on the race and ethnic issue: Iyiola Solanke, “Diversity and
Independence in the European Court of Justice”, 15 Columbia Journal of European Law (2009), 89, 93.

8
provision requires from the arbitrators to “inspire full confidence in their impartiality of

judgment”23. Recent EU-negotiated texts also underline the existence of a duty of

independence and impartiality on the part of the adjudicators, which is referred to in the

new codes of conduct drawn up for them.

In practice, attempting to pin down these concepts nevertheless creates

controversy. It is difficult to find detailed clarifications of these notions, and even when

efforts are made to specify them, as in ICSID cases, the different stakeholders do not

always entirely agree on their precise definitions.24

The increasing accountability imposed on investment arbitrators will

undoubtedly result in the independence of future MIC members becoming a crucial

issue which merits much discussion among academics.

Along with this notion of individual independence, both general and legal

dictionaries point out that the term “independence” is also applicable to collective

bodies.25 In the context of supranational courts, international organizations such as

UNCITRAL26 and the Institute of International Law27 and also legal scholars28 have

23
The Spanish version proclaims: “Las personas designadas para figurar en las listas deberán (…)
inspirar plena confianza en su imparcialidad de juicio”. Convention on the Settlement of Investment
Disputes between States and National of other States.
http://icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/partA-preamble.htm.
24
ICSID cases state that: “The concepts of independence and impartiality are often seen as distinct,
although the borderline between the two concepts is not easy to find” (National Grid PLC vs. The
Republic of Argentina, paragraph 76). “Independence is characterized by the absence of external control,
in particular of relations between the arbitrator and a party which may influence the arbitrator´s
decision. Impartiality, on the other hand, means the absence of bias or predisposition towards one party
and requires that the arbitrator hears the party without any favour and bases his or her decision only on
factors related to the merits of the case” (Saint-Gobain vs. The Bolivarian Republic of Venezuela,
Decision on Claimant´s Proposal to Disqualify Mr. Gabriel Bottini from the Tribunal, paragraph 56).
“Thus is it possible in certain situations for a judge or arbitrator to be independent of the parties but not
impartial. Independence and impartiality are states of mind”. (Suez v. The Argentine Republic, May 12,
2008, paragraphs 29 and 30)
25
The first meaning of independence in the Cambridge dictionary indicates that independence is
“freedom from being governed or ruled by another country”, as well as the Black Law´s dictionary
states that: “Political independence is the attribute of a nation or state which is entirely autonomous, and
not subject to the government, control, or dictation of any exterior power.”
26
United Nations, Commentary of the Bangalore Principles of Judicial Conduct, 2007, 38
https://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf.
27
Article 5: “The independence of courts and tribunals depends not only on the procedures of selection
of judges and their status, but also on the way in which the court or tribunal is organized and operates”.

9
referred to the notion of institutional independence. It has been defined as the judicial

institution’s degree of autonomy vis-à-vis external authorities such as other branches of

a national government.29 In order to test this institutional independence, elements such

as the court financing system (financial independence) and the form of internal

organization, i.e., internal regulations, presidency, secretariat (functional independence)

have usually been taken into account.

The notion of non-individual independence of the judiciary is not new. As

early as 1959 the International Commission of Jurists pointed out that: “it is important

to have regard to the independence not only of the judge but also of the Judiciary as an

institution; the latter may provide traditions and a sense of corporate responsibility

which are a stronger guarantee of independence than the private conscience of the

individual judge”.30

The present article raises the question of whether there is a kind of “collective

independence” in the ISDS context. 31 This perhaps not entirely orthodox term has been

consciously chosen to delineate it from the notion of institutional independence. The

notion of collective independence suggested here does not focus on autonomy and

satisfactory self-management. Collective independence rather refers to a series of

checks and balances to be established within the judicial collegium, and leads to the

This provision refers to a registry (information systems) and its budget and its staff management (internal
administration). Resolution of the Institute of International Law, The Position of the International Judge
2011, http://www.idi-iil.org/app/uploads/2017/06/2011_rhodes_06_en.pdf.
28
Maira Eudes, “La légitimité du juge de la Cour Européenne des droits de l´homme. Observations sur la
représentativité et l’indépendance du juge de Strasbourg”, 13 Revue québécoise de droit international
(2000), 131, 151-158.
29
It must be borne in mind that these reflections have sometimes focused on the judiciary at national
level. For instance, Council of Europe. Plan of Action on Strengthening Judicial Independence and
Impartiality, CM(2016)36 final, https://rm.coe.int/1680700285.
30
Focusing on national judiciary branches, International Commission of Jurists, The Rule of Law in a
Free Society (1959), 279. http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1959/01/Rule-of-law-
in-a-free-society-conference-report-1959-eng.pdf.
31
Following the definitions handled in the context of the ICSID case law, it might be more appropriate to
call it "collective impartiality".

10
study of the actions and effects generated by such checks and balances –or the lack of

them-.

If we accept the hypothesis that an international court as a whole has its own

particular needs in the independence context, it is worth bringing it up in the context of

a future MIC. This court, which would be the essential institution in the global

international investment field, may strengthen its collective independence by resorting

to various mechanisms. As detailed in the following section, defining and agreeing ex

ante on such mechanisms would provide crucial support for the establishment and

consolidation of an independent MIC. The article puts forward a case for including

diversity rules in the future MIC as a strategy to foster, among others, collective

independence.

4.! Diversity and Independence in the Multilateral Investment Court: context,

ways of incorporating diversity, and pending issues#

Having outlined the possible foundations for diversity in the MIC and a court

duty regarding independence, a series of interconnected questions arises over the

collective facets of independence and diversity. Would the existence of diversity in the

MIC affect the court’s independence? That is, would incorporating diversity rules

increase the MIC’s real and/or perceived independence and attack systemic bias32? Are

diversity rules therefore a de-biasing criterion in international courts such as the MIC?

The answer to these questions requires a brief examination of the ideas that follow.

4.1!Diversity in Context

32
S. Brekoulakis, “Systemic Bias and the Institution of International Arbitration: A New Approach to
Arbitral Decision-Making”, 4 Journal of International Dispute Settlement (2013), 553.
#

11
 Times have clearly changed, and there seems to be no turning back. States

initially viewed the appointing of international judges as a sovereign prerogative;33 this

not only granted politics and diplomacy a very prominent role,34 but also prioritised

non-merit factors such as friendship, political connections and political ideology among

prospective judges. The current system still places great weight on criteria such as

nationality -and in some cases, regional quotas, and so has obviously not dispensed

entirely with jeux de pouvoir. However, a tendency towards a more detailed positivising

of the requirements for individual judges has recently emerged. The rules setting out the

qualifications for becoming an international judge generally either require candidates to

hold the necessary qualifications for appointment to the highest judicial office or to be

jurists of recognized competence, as well as having specialized legal skills and language

expertise, among others, a development that has magnified the importance of

meritocracy.

Most interested parties have praised this implementing of meritocratic

parameters in principle as a step in the right direction,35 but it has also generated some

complaints. It could perhaps be argued that merit-based criteria are not truly universal,36

33
Lord Mance, “The Composition of the European Court of Justice, Talk given to the United Kingdom
Association for European Law, 19th October 2011”,
https://www.supremecourt.uk/docs/speech_111019.pdf; Szurek Sandra, “La composition des jurisdictions
internationales permanentes: de nouvelles exigences de qualité et de représentativité”, 56 Annuaire
français de droit international (2010), 41, 43.
34
Highly illustrative here is Philippe Sands’ enjoyable account in “Choosing Our International Judges,
Past and Present”, in V. Gowlland-Debbas, M. Kohen and L. Boisson de Chazournes (eds.), International
Law and the Quest for its Implementation. Le droit international et la quête de sa mise en oeuvre. Liber
Amicorum (2010), 446.
35
Sauve's speeches in relation to the Article 255 panel are very emphatic and support: "A system of
appointment which ceases to rest exclusively on the sovereign prerogative of States and which is based
on a new method of evaluation and selection of candidates more open, objective, impartial and based on
merit" (author’s translation). Intervention de Jean-Marc Sauvé, vice-président du Conseil d’Etat de
France, Président du comité prévu par l’article 255 du Traité sur le fonctionnement de l’Union
européenne, devant la Commission des affaires juridiques du Parlement européen, Bruxelles, (2013),
http://www.conseil-etat.fr/content/download/3457/10399/version/1/file/2013-05-30_audition-au-
parlement-europeen.pdf.
36
In this sense: “the fact that there are such divergent views about the relative merits of different judicial
backgrounds and characteristics suggests that it is not always easy to predict, on the basis of prior
experience, who will prove to be an excellent judge once on the bench” “merit is a slippery and open-
ended concept and there is room for reasonable people to reach different conclusions on what it means

12
or, on the other hand, that a monopolistic defence of this type of criteria threatens

representativeness37 – as also occurs in highly politicized processes. In other words, an

international tribunal composed of judges who meet all the individual eligibility criteria

might still be collectively perceived as a biased when taken as a group.

In this context, the notion of diversity appears to be a suitable solution. An

empirical study has argued that the fact that "judges are from different countries and the

bias of one judge can be mitigated by other judges" is one of the reasons why

international courts appear to enjoy a greater degree of independence than national

courts.38 Academics have also suggested that judges with homogeneous profiles tend to

share the same attitudes,39 which would logically seem to reduce the court’s

independence.

Faced with the reality that diversity criteria are currently on the increase in

international courts, questions arise about who is ultimately promoting it. On the one

hand, if civil society is currently considered a kind of “active consumer” of international

awards, especially when decisions concern public issues, promoting diversity may be a

consequence of the fact that global society no longer tolerates international courts

composed of male legal elites from the West. On the other hand, if states are deemed to

have taken on the role of de-biasing agents in this international context, promoting

and how it should be evidenced”. Ruth Mackenzie, Kate Malleson, Penny Martin and Philippe Sands,
Selecting International Judges: Principle, Process, and Politics (2010), 177 and 179.
37
Representativeness as a relevant factor is analysed by Sally J. Kenney, “Breaking the Silence: Gender
Mainstreaming and the Composition of the European Court of Justice”, 10 Feminist Legal Studies (2002),
257, 270.
38
Kanstantsin Dzehtsiarou and Donal K Coffey, “Legitimacy and Independence of International
Tribunals: An Analysis of the European Court of Human Rights”, 37 Hastings International
&Comparative Law Review (2014), 271, 281-282.
39
In this sense: “Baroness Hale, Deputy President of the United Kingdom Supreme Court, has observed
that most top English judges are white, male, attended the same elite universities, and specialized in
commercial law. Apart from the lack of expertise in public law issues that abound in investment
arbitration, these judges, of whatever court, most likely have the same ideological predispositions.” M.
Sornarajah, “An International Investment Court: panacea or purgatory?”, 180 Columbia FDI
Perspectives, Perspectives on topical foreign direct investment issues (2016),
http://ccsi.columbia.edu/files/2013/10/No-180-Sornarajah-FINAL.pdf.

13
diversity may be the logical outcome of their desire to reproduce in the international

arena a guiding principle that has already been incorporated into their national legal and

judicial contexts. Irrespective of the nature of the trigger factor, the reality is that the

court’s representativeness, and by the same token, diversity, is a not inconsiderable

element of contemporary debate. To provide a very recent example from the investment

arbitration field, the fact that that the latest nominations list drawn up by the ICSID

Arbitration Council Chairman is both equal in terms of gender and diverse in terms of

race, geographical representation, and the presence of different legal systems is

certainly neither coincidence nor the result of improvisation.40

It therefore seems that a future international court such as the MIC will lack

the support it needs from both states and societies if it does not meet two essential

requirements: individual meritocracy and collective representativeness, with the latter

redressing any imbalances created by the former. The implication is that although the

states may –supposedly- retain formal competence in the crucial process of appointing

MIC judges,41 in fact they will have to take into account many other collective concerns

apart from classical sovereign interest.

For all these reasons, it seems clear that the MIC cannot afford to take a step

backwards in terms of diversity when such efforts are already being implemented in

other international legal contexts. It is therefore necessary to reflect on the most

appropriate way to inject diversity into this new court.

4.2!Anchoring Diversity in the Multilateral Investment Court

The EU texts referred to above give few details as to how future IIAs will be

selected and appointed, except for the fact that treaty parties assume competence in this

40
https://icsid.worldbank.org/en/Pages/icsiddocs/Panels-of-Arbitrators-and-Conciliators.aspx
41
This is not the case in the CCJ. See infra Section 4.3.

14
matter via joint committee.42 This was stipulated by the TTIP drafters, for instance, in

the sense that the judges would be appointed by the EU and the US governments43. The

fact that no detailed official information as to the creation of the judges’ roster was

initially offered in the context of the MIC generated criticism among various

stakeholders44 and created a halo of suspicion with regard to a MIC that could be biased

in favour of defendant states.45 The issue of diversity was not addressed in the initial

documents concerning the prospective creation of a MIC.

In 2016 the EU published the “Questionnaire on options for a multilateral

reform of investment dispute resolution,” as part of a wider consultation strategy.46 One

section was devoted to the “design, composition and features” of the MIC, but only a

42
Regarding the composition of this kind of committee, see for instance article 26.1 of CETA: “The
Parties hereby establish the CETA Joint Committee comprising representatives of the European Union
and Representatives of Canada. The CETA Joint-Committee shall be co-chaired by the Minister for
International Trade of Canada and the Member of the European Commission responsible for Trade, or
their respective designees”.
43
For instance, referring to TTIP: “on the investment tribunal, the 15 judges would be appointed jointly
by the EU and the US governments”. Reading Guide to the Draft text on Investment Protection and Investment Court
System in the Transatlantic Trade and Investment Partnership (TTIP). http://trade.ec.europa.eu/doclib/press/index.cfm?id=1365.
44
M. Sornarajah, “An International Investment Court: panacea or purgatory?”, 180 Columbia FDI
Perspectives, Perspectives on topical foreign direct investment issues (2016),
http://ccsi.columbia.edu/files/2013/10/No-180-Sornarajah-FINAL.pdf; Investment Treaty Working Group
of the International Arbitration Committee, American Bar Association Section on International Law,
Investment Treaty Working Group: Task Force Report on the Investment Court System Proposal,
October 14, 2016, 27-29,
http://apps.americanbar.org/dch/thedl.cfm?filename=/IC730000/newsletterpubs/DiscussionPaper101416.
pdf.
45
Investment Treaty Working Group of the International Arbitration Committee, American Bar
Association Section on International Law, Investment Treaty Working Group: Task Force Report on the
Investment Court System Proposal, October 14, 2016, 23-25,
http://apps.americanbar.org/dch/thedl.cfm?filename=/IC730000/newsletterpubs/DiscussionPaper101416.
pdf.
46
Questionnaire on options for a multilateral reform of investment dispute resolution,
http://trade.ec.europa.eu/consultations/index.cfm?consul_id=233.

15
single question (No. 48) referred generically to adjudicator selection, and no concerns

regarding diversity were raised.47

The fact that the EU has thus far kept a low profile with regard to both the

nomination and selection of MIC judges and diversity issues should not lead to the

resigned assumption that these matters will be decided in the old-fashioned opaque way;

on the contrary, the creation of the MIC needs to be a stepping stone towards diversity.

47
Questions 46 to 55 focus on the "Design, composition and features of a single Multilateral Investment
Court or a Multilateral Appeal Tribunal". Their text reads as follows: “Common to the proposal for a
single Multilateral Investment Court and for a Multilateral Appeal Tribunal are questions on overall
design and size. It would for instance be necessary to provide for mechanisms allowing the body
established to adjust to a growing membership. 46. Do you consider that it is important to ensure that
each country party to the agreement establishing the single Multilateral Investment Court or Multilateral
Appeal Tribunal should have the possibility to appoint one or more adjudicators? 47. Do you consider it
important that the number of adjudicators should be tailored to the likely number of cases and not linked
to the number of countries signatory to the agreement? 48. Do you have any further comments on the
manner in which adjudicators should be selected? 49. Also common to both proposals whether to
establish a single Multilateral Investment Court or a Multilateral Appeal Tribunal, are considerations on
the qualifications required to be a permanent adjudicator. In the EU's Investment Court System (ICS),
there are a number of criteria that adjudicators must meet for being eligible, including being qualified to
hold judicial office in their country or being recognised jurists, as required by the International Court of
Justice (ICJ) or the European Court of Human Rights (ECHR). Under the ICS, judges must also have
expertise in public international law and previous experience in international investment law. It is
assumed that adjudicators would be able to call on experts for technical or scientific information. Do you
consider that these qualifications would also be appropriate for a permanent multilateral mechanism,
whether a single Multilateral Investment Court or a Multilateral Appeal Tribunal? 50. Do you have any
further comments on the qualifications of adjudicators under such a mechanism? 51. An important
consideration would be the remuneration and conditions of employment of these adjudicators. Judges in
the International Court of Justice (ICJ), the World Trade Organisation (WTO) Appellate Body or the
Court of Justice of the EU (CJEU) receive a regular monthly salary which is not linked to their workload.
Do you consider that adjudicators in a single Multilateral Investment Court or a Multilateral Appeal
Tribunal should be remunerated in a similar manner? 52. Under the EU's ICS set out in EU level
agreements, tribunal members must adhere to high standards of ethical conduct. In particular, they
cannot act as counsel in investment disputes (so-called "double hatting"). This is also a safeguard
ensuring their impartiality. The legal text in EU agreements establishing the ICS foresees the possibility
that tribunal members become full-time and hence would, in principle, not be allowed to have external
activities. Do you agree that adjudicators in a single Multilateral Investment Court or in a Multilateral
Appeal Tribunal should be full-time with no external activities? 53. In most international and domestic
courts, including under the EU's ICS, disputes are allocated on a random basis to divisions of
adjudicators to ensure impartiality and independence. Do you agree that a similar approach should be
followed for the distribution of cases in a potential multilateral investment mechanism, whether a single
Multilateral Investment Court or in a Multilateral Appeal Tribunal? 54. Another important consideration
relates to the financing of a single Multilateral Investment Court or a Multilateral Appeal Tribunal,
including salaries for adjudicators, staff and related administration expenses. For instance, under the
EU's ICS, the Parties to the Agreement (i.e. the EU and the other country signing the trade and
investment agreement) share the fixed operational costs of the ICS. A repartition key, for instance based
on the level of economic development, is often used to determine the contribution of states that are
members of international organisations. In your view, would it be appropriate to employ a repartition key
to determine the share of the contracting Parties in the operational costs? 55. In your view, should it also
be considered that some of the operational costs could be funded in part by user fees (i.e. by investors
and/or states)?”.

16
The most desirable approach would entail serious debate about diversity during the

shaping of the rules governing the MIC, using the standards reached in other

international judicial contexts as a starting point from which to take a determined step

forward. The revolution that those promoting the MIC wish to achieve through the

creating of this global court must also be reflected in the way the diversity issue, and

through it, the independence question, are addressed.

Having outlined the development and current status quo of other international

tribunals (ICC, ICJ, ECHR, ECJ, CCJ, etc.) in terms of diversity, a number of key ideas

now need to be highlighted. There is a growing tendency to include pro-diversity

parameters in the collective composition rules of international tribunals,48 and their

incorporation reflects the consensus among the community of states and their civil

societies regarding the importance of diversity in this international judicial context.

International approval of the diversity factor has also been echoed at other stages of the

selection process. Through a top-down approach, good practices with reference to

diversity in international courts are prevailing during the early phases of nominating and

selecting international judges. There are, for instance, judges´ nomination committees at

national level that have to comply with specific diversity parameters, either with regard

to the composition of the committee itself49 or regarding to prior consultation

mechanisms.50 Multiple supranational committees, both advisory and with decision-

making powers, also have to comply with diversity rules (e.g., fair representation of

48
See supra Section 2.2.
49
In the context of the ECHR, point IV states: “The body responsible for recommending candidates
should be of balanced composition. Its members should collectively have sufficient technical knowledge
and command respect and confidence. They should come from a variety of backgrounds, be of similar
professional standing and be free from undue influence, although they may seek relevant information
from outside sources.” Guidelines of the Committee of Ministers on the selection [at national level] of
candidates for the post of judge at the, 28-29 march 2012, CM(2012)40
final,https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cb1ac.
50
In the ICJ sphere, Article 6 of the ICJ Statute only contains a recommendation: “Before making these
nominations, each national group is recommended to consult its highest court of justice, its legal faculties
and schools of law, and its national academies and national sections of international academies devoted
to the study of law”.

17
both genders, presence of the main legal systems, equitable geographical representation,

different professional backgrounds of the members or the members´ electors, etc.)51.

51
The terms of reference for the establishment of an Advisory Committee on nominations for judges of
the International Criminal Court state, regarding its composition: “The Committee should be composed of
nine members, nationals of States Parties, designated by the Assembly of States Parties by consensus on
recommendation made by the Bureau of the Assembly also made by consensus, reflecting the principal
legal systems of the world and an equitable geographical representation, as well as a fair representation
of both genders, based on the number of States Parties to the Rome Statute.” https://asp.icc-
cpi.int/iccdocs/asp_docs/ASP10/Resolutions/ICC-ASP-10-Res.5-ENG.pdf and https://asp.icc-
cpi.int/iccdocs/asp_docs/ASP10/ICC-ASP-10-36-ENG.pdf; the Resolution CM/Res(2010)26 on the
establishment of an Advisory Panel of Experts on Candidates for the Election as Judge to the European
Court of Human Rights, indicated regarding its composition: “The Panel shall be composed of seven
members, chosen from among members of the highest national courts, former judges of international
courts, including the European Court of Human Rights and other lawyers of recognised competence, who
shall serve in their personal capacity. The composition of the Panel shall be geographically and gender
balanced”. http://www.justice.gov.ge/Multimedia%2FFiles%2F2017%2FRes_2010_26_eng.pdf. The
Article V of the Agreement establishing the Caribbean Court of Justice (CCJ) indicates in a regional
context that “the Regional Judicial and Legal Services Commission [in charge of appointing the Judges
of the Court, other than the President] shall consist of the following persons: (a) the President who shall
be the Chairman of the Commission; (b) two persons nominated jointly by the Organisation of the
Commonwealth Caribbean Bar Association (OCCBA) and the Organisation of Eastern Caribbean States
(OECS) Bar Association; (c) one chairman of the Judicial Services Commission of a Contracting Party
selected in rotation in the English alphabetical order for a period of three years; (d) the Chairman of a
Public Service Commission of a Contracting Party selected in rotation in the reverse English
alphabetical order for a period of three years; (e) two persons from civil society nominated jointly by
the Secretary-General of the Community and the Director General of the OECS for a period of three
years following consultations with regional non-governmental organisations; (f) two distinguished
jurists nominated jointly by the Dean of the Faculty of Law of the University of the West Indies, the
Deans of the Faculties of Law of any of the Contracting Parties and the Chairman of the Council of Legal
Education; and (g) two persons nominated jointly by the Bar or Law Associations of the Contracting
Parties”, http://www.sice.oas.org/Trade/CCME/agreement_CCJ.pdf. In the sports context, referring to
diversity in the electors’ professional backgrounds, the Statutes of the Bodies Working for the Settlement
of Sport-Related Disputes states that: “the International Council of Arbitration for Sport (ICAS) [in
charge of appointing the arbitrators who constitute the list of CAS arbitrators and the mediators who
constitute the list of CAS mediators] is composed of twenty members, experienced jurists appointed in the
following manner: a. four members are appointed by the International Sports Federations, viz. three by
the Association of Summer Olympic Ifs and one by the Association of Winter Olympic Ifs, chosen from
within our outside their membership; b. four members are appointed by the Association of the National
Olympic Committees, chosen from within or outside its membership; c. four members are appointed by
the International Olympic Committee, chosen from within or outside its membership; d. four members are
appointed by the twelve members of the ICAS listed above, after appropriate consultation with a view to
safeguarding the interests of the athletes; e. four members are appointed by the sixteen members of ICAS
listed above, chosen from among personalities independent of the bodies designating the other members
of the ICAS”, http://www.tas-
cas.org/fileadmin/user_upload/Code20201320corrections20finales20_en_.pdf-. With less emphasis on
diversity, Article 255 of the Treaty on the Functioning of the European Union declares that: “A panel
shall be set up in order to give an opinion on candidates' suitability to perform the duties of Judge and
Advocate-General of the Court of Justice and the General Court before the governments of the Member
States make the appointments referred to in Articles 253 and 254. The panel shall comprise seven persons
chosen from among former members of the Court of Justice and the General Court, members of national
supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European
Parliament. The Council shall adopt a decision establishing the panel's operating rules and a decision
appointing its members. It shall act on the initiative of the President of the Court of Justice.” http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT.

18
 The gradual consolidation of diversity as a balancing criterion in the process

of structuring international courts is taking place in a more general context of change.

Some national initiatives or isolated changes that were initially considered incidental

have turned out to be inspiring indicators during the phases of nominating and selecting

international judges.52 In this sense, transparency and pluralist participation are two of

the transversal driving forces behind many of the new initiatives that are being

implemented, which may include advertising, calls for information, model CVs,

consultations, interviews, and screening of candidates.53 As touched on in Section 3,

these might be the kind of new mechanisms that constitute crucial support for the

establishment and consolidation of the MIC.

In short, diversity must be one of the backbone elements of the entire

nomination and selection process of IIAs in the MIC. While the whole IIA nomination

process has to be transparent and needs public involvement if the MIC wishes to be

"accountable, transparent and subject to democratic principles",54 diversity should also

be one of the new court’s collective composition rules. Reinforcing the presence of

diversity along these two axes also correlates with the principle of independence and

impartiality. In words of Remiro Brotóns – referring to the International Court of

Justice: “if independence, professional competence and moral integrity are necessary

attributes of a court worthy of such a name and of its members, it is essential to

52
For example, changes have been proposed in the Latin American context that reflect the indicated
trends, such as the creation of a committee of independent experts within the OAS for the election of the
commissioners of the inter-American Commission of Human Rights. This committee would consist of
two members of national supreme courts, three former Commissioners and two representatives of civil
society. Laurence Burgorgue-Larsen, “Des idéaux à la réalité. Réflexions compares sur les processus de
selection et de nomination des membres des Cours européenne et interaméricaine des droits de l’homme”,
6 La Revue des droits de l’homme (2014), 1.
53
Elaborating on these “contemporary concerns”, Ruth Mackenzie, Kate Malleson, Penny Martin and
Philippe Sands, Selecting International Judges: Principle, Process, and Politics, (2010), 137.
54
Cecilia Malmström, “Proposing an Investment Court system”, 16 September 2015,
https://ec.europa.eu/commission/commissioners/2014-2019/malmstrom/blog/proposing-investment-court-
system_en.

19
promote these values in the Court by encouraging nomination and selection inspired by

the principles of transparency, merit, as well as diversity and representation”55.

4.3. Proposals for the Multilateral Investment Court and Their Impact on the Court´s

Independence and Diversity

This section briefly presents various additional elements for a future debate

on diversity and independence in the MIC. Individual attention will be paid to the

following three questions: the setting of a specific mechanism to nominate and select

the IIAs, the possible use of quotas within the MIC, and other relevant factors in the

MIC’s configuration. An analysis of these issues leads to the belief that the

enhancement of diversity in the nomination and selection process of the MIC may bring

about a decoupling of political pressures that in turn lead to greater independence in the

court.

a) IIA Nomination and Selection

As pointed out in previous sections, highly different mechanisms are used to

nominate and select international judges. Briefly, states have gradually accepted the

fact that it is necessary to share the stage to a greater or lesser extent with other

stakeholders in this complex procedure. An innovative initiative was recently

implemented in the framework of the Caribbean Court of Justice (CCJ) in which control

of the nomination and selection process was removed from states and given to a non-

state commission. Despite this, it is impossible to ignore the fact that the states are still

the heavyweights in this sphere.

55
(Author’s translation) Antonio Remiro Brotóns, “Nomination et Élection des Juges à la Cour
Internationale de Justice”, in D. Alland, V. Chetail, O. de Frouville, J. E. Jorge E. Viñuales (eds.), Unité
et diversité du droit international/Unity and Diversity of International Law, Essays in Honour of
Professor Pierre-Marie Dupuy (2014) 639, 658.

20
 A crucial issue where the MIC is concerned is determining how much power

to grant to non-governmental stakeholders during the phases of IIA nomination and

selection. The reflections provided by academic opinion on this question mostly contain

references to advisory committees, which still leaves states considerable leeway.

Various options have been proposed: creating an independent body made up of the

presidents of various international courts – ICJ, ECHR, IACHR, US-Iran Claims

Tribunal - which would assess the competence of prospective IIAs,56 or constituting a

committee made up of international legal associations, such as the International and the

American Bar Associations and the International Council for Commercial Arbitration,

which would have a right to veto candidates.57 A further suggestion involves setting up

consultations with business organizations58 to eliminate the risk of pro-state bias within

the MIC. Nevertheless, it remains unclear whether this kind of proposal reflects a real

preference for merely advisory participation, or if it is rather a sign of the inertia of the

system that still prevails today.

There are nonetheless some recent references to setting up a decision-making

commission with power of appointment in the MIC context. A discussion paper drafted

in the context of the CETA negotiations expressly pointed out the possibility that IIAs

"would not be directly appointed by the Parties, but by an independent body deciding on

56
Investment Treaty Working Group of the International Arbitration Committee, American Bar
Association Section on International Law, Investment Treaty Working Group: Task Force Report on the
Investment Court System Proposal, October 14, 2016, 27,
http://apps.americanbar.org/dch/thedl.cfm?filename=/IC730000/newsletterpubs/DiscussionPaper101416.
pdf.
57
Investment Treaty Working Group of the International Arbitration Committee, American Bar
Association Section on International Law, Investment Treaty Working Group: Task Force Report on the
Investment Court System Proposal, October 14, 2016, 27,
http://apps.americanbar.org/dch/thedl.cfm?filename=/IC730000/newsletterpubs/DiscussionPaper101416.
pdf.
58
Gabrielle Kaufmann-Kohler and Michele Potestà, “Can the Mauritius Convention serve as a model for
the reform of investor-State arbitration in connection with the introduction of a permanent investment
tribunal or an appeal mechanism-Analysis and roadmap?”, 61,
http://www.uncitral.org/pdf/english/CIDS_Research_Paper_Mauritius.pdf.

21
criteria other than their origin".59 Apart from this, academic opinion has pointed out

that judges should not be selected by MIC contracting parties but by a multilateral

committee representing the interests of the entire international community, as is the case

with the UN General Assembly and the Security Council where the ICJ is concerned.60

It is reasonable to perceive a direct relationship between the degree of

independence with respect to political and financial powers, for example, achieved

during the IIA nomination and selection process, and the degree of independence of a

MIC constituted through this process. As addressed in Section 3, introducing the

diversity factor throughout the whole nomination and selection process would also have

a positive effect on the independence of the process itself, which would result in a boost

to the MIC’s independence.

To this end, it would seem positive for future MIC IIAs to be appointed by a

non-political body similar to that already implemented in the CCJ. It should be noted,

however, that current general feeling about this type of innovation is characterized by

caution. While the independence benefits that granting decision-making powers to an

apolitical commission would entail are not questioned, it is also argued that many

favourable circumstances would have to converge in the international context for this to

come about. 61 While this is undoubtedly true, it also needs to be borne in mind that the

59
Establishment of a multilateral investment dispute settlement system Expert meeting 13 and 14 December 2016, Geneva, 5,
http://trade.ec.europa.eu/doclib/docs/2017/january/tradoc_155267.12.12%20With%20date_%20Discussion%20paper_Establish
ment%20of%20a%20multilateral%20investment%20Geneva.pdf.
60
Stephan Schill, “Das TTIP-Gericht: Keimzelle oder Stolperstein für echte Multilateralisierung des
internationalen Investitionsrecths”, 2015, http://verfassungsblog.de/das-ttip-gericht-keimzelle-oder-
stolperstein-fuer-echte-multilateralisierung-des-internationalen-investitionsrechts/. The latter’s practice
regarding the of judge selection shows, however, that a depoliticized procedure has not been achieved so
far in the ICC context, and it therefore might raise questions about similar solutions in the MIC.
61
This is the right time, because “it is generally much easier to introduce forward-looking and more
radical provisions at the point when a court is created than to institute such changes in established
courts”. Ruth Mackenzie, Kate Malleson, Penny Martin and Philippe Sands, Selecting International
Judges: Principle, Process, and Politics, (2010), 151-2, 172.

22
MIC initiative offers stakeholders a highly motivating blank slate on which multilevel

negotiations may generate novel outcomes.

b) Diversity Quotas

The possibility that diversity quotas will be imposed on the IIA roster is a

burning issue in considerations about the composition of the MIC. In principle, the idea

of debating the quota issue need not be a cause for alarm, since this is not the first time

that this thorny issue has been raised in the international court sphere. The following

three cases, which focus respectively on geographical groups, qualifications and gender,

are useful examples of the existence of quotas in the international tribunal context.

b.1) Aiming for a fair representation of all geographical areas, Article 3.2 of

the International Tribunal for the Law of the Sea (ITLOS) Statute states that: “There

shall be no fewer than three members from each geographical group as established by

the General Assembly of the United Nations”. This provision was further developed in

2009, by an arrangement of the States Parties proclaiming that: “From the next election,

the Tribunal shall have the following composition: (a) Five members of the Tribunal

shall be from the Group of African States; (b) Five members of the Tribunal shall be

from the Group of Asian States; (c) Three members of the Tribunal shall be from the

Group of Eastern European States; (d) Four members of the Tribunal shall be from the

Group of Latin American and Caribbean States; (e) Three members of the Tribunal shall

be from the Group of Western European and other States; (f) The remaining one

member of the Tribunal shall be elected from among the Group of African States, the

Group of Asian States and the Group of Western European and other States”.62

62
Arrangement for the allocation of seats on the International Tribunal for the Law of the Sea and the
Commission on the Limits of the Continental Shelf, Nineteenth Meeting of States Parties on 22-26 June
2009 (Document SPLOS/201), https://documents-dds-
ny.un.org/doc/UNDOC/GEN/N09/386/72/PDF/N0938672.pdf?OpenElement.

23
 b.2) Referring to the judges’ qualifications, Article 36. 5 of the Rome Statute

of the International Criminal Court stipulates that: “For the purposes of the election,

there shall be two lists of candidates: List A containing the names of candidates with

the qualifications specified in paragraph 3 (b) (i) [criminal law and procedure’s profile];

and List B containing the names of candidates with the qualifications specified in

paragraph 3 (b) (ii) [international law’s profile]. (…) At the first election to the Court,

at least nine judges shall be elected from list A and at least five judges from list B.

Subsequent elections shall be so organized as to maintain the equivalent proportion on

the Court of judges qualified on the two lists.” 63

b.3) Dealing with gender in the 1990s,64 the Parliamentary Assembly of the

European Court of Human Rights (ECHR) imposed requirements regarding the issue on

its member states. The initial stipulation that national candidate lists should reflect "the

presence of candidates of both sexes"65 has been polished66 over time, not without some

63
This provision ends as follows: Article 36. 3. B. “Every candidate for election to the Court shall: (i)
Have established competence in criminal law and procedure, and the necessary relevant experience,
whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or (ii)
Have established competence in relevant areas of international law such as international humanitarian
law and the law of human rights, and extensive experience in a professional legal capacity which is of
relevance to the judicial work of the Court”. https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-
be94-0a655eb30e16/0/rome_statute_english.pdf. A provision with the same objective was included in the
2001 Agreement establishing the Caribbean Court of Justice. Article IV: “The Judges of the Court shall
be the President and not more than nine other Judges of whom at least three shall possess expertise in
international law including international trade law”.
http://www.caribbeancourtofjustice.org/wp-content/uploads/2011/09/ccj_agreement.pdf.
64
An indirect reference to gender quotas can be found in the Stockholm Chamber of Commerce policy on
Appointment of Arbitrators, amended by the SCC board on 8 September 2017: “the SCC seeks to foster
diversity in all appointments. This includes but is not limited to acting in the spirit of its commitment as a
signatory to the Equal Representation in Arbitration Pledge”. This document also refers to tribunal
balance in the following way: “In all of its appointments, the SCC seeks to balance expertise, legal
qualifications, seniority, language and other relevant circumstances, taking into account all members of
the Arbitral Tribunal”.
65
Order 558 (1999): “The Assembly, referring to its Recommendation 1429 (1999) on the procedure for
the nomination of candidates to the European Court of Human Rights at national level, instructs the Sub-
Committee on the Election of Judges of its Committee on Legal Affairs and Human Rights, to make sure
that in future elections to the Court member states apply the criteria which it has drawn up for the
establishment of lists of candidates, and in particular the presence of candidates of both sexes”.
http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?fileid=16744.
66
There are less strict gender requirements with regard to ad hoc ECHR judges (the list submitted by the
contracting party “shall include both sexes”- Rule 29 of the Rules of Court). Marie-Louise Bemelmans-
Videc (rapporteur), Juges ad hoc à la Cour européenne des droits de l’homme: un aperçu. Doc. 12827, 23

24
tension67, in the latest resolution, which walks an extremely fine line in order to

establish a not entirely mandatory68 gender quota: "The lists of candidates should, as a

general rule, include at least one candidate of each sex, unless the candidates belong to

the under-represented gender in the Court (less than 40% of the judges) or where

exceptional circumstances lead to derogation from this rule ".69

It is therefore clear that the group of states involved have agreed to establish

diversity quotas in international tribunals in some contexts and for specific issues. This

may be a good starting point for discussing the merits of also incorporating diversity

quotas in the MIC context.70 From the perspective of independence and, as previously

noted, quotas are an antidote to homogeneity. In that sense, quotas may be an

instrument to combat –implicit or explicit- bias within the MIC.

There is no doubt that stakeholders’ perspectives regarding quotas in the

MIC will be highly varied: quotas can be viewed as a legitimate, non-waivable claim, a

janvier 2012. https://www.coe.int/t/dgi/brighton-

conference/documents/pace_documents/AP_DOC_12827_FR.pdf.
67
Detailing the tensions that the “diversity requirement” (l’exigence de mixité sexuelle) has generated in
the European Court of Human Rights, see Jean-François Flauss, “Les élections de juges à la Cour
Européenne des Droits de L´Homme (2005-2008)”, 75 Revue trimestrielle des droits de l'homme (2008),
713; Norbert Paul Engel, “More Transparency and Governmental Loyalty for Maintaining Professional
Quality in the Election of Judges to the European Court of Human Rights”, 32 Human Rights Law
Journal (2012) 448.
68
Also known as “soft quota”, Bilyana Petkova, “Spillovers in Selecting Europe’s Judges. Will the
Criterion of Gender Equality Make it to Luxembourg?” in Michal Bobek (ed.), Selecting Europe’s
Judges, 2015, 233.
69
(Author’s translation) This text in the 2012 Lignes directrices du Comité des Ministres concernant la
sélection [au niveau national] des candidats pour le poste de juge à la Cour européenne des droits de
l’homme summarizes a more detailed version in Resolution 1627 (2008) “Candidates for the
European Court of Human Rights”, amending Resolution 1366 (2004), as modified by Resolution
1426 (2005): “The Assembly decides not to consider (national) lists of candidates where (…) the list does
not include at least one candidate of each sex, except when the candidates belong to the sex which is
under-represented in the Court, that is the sex to which under 40% of the total number of judges belong.
The Assembly decides to consider single-sex lists of candidates of the sex that is over-represented in the
Court in exceptional circumstances where a Contracting Party has taken all the necessary and
appropriate steps to ensure that the list contains a candidate of the under-represented sex, but has not
been able to find a candidate of that sex who satisfies the requirements of Article 21 § 1 of the European
Convention on Human Rights (…)“ .http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-
en.asp?fileid=17670&lang=en.
70
This possibility had already been raised in the past in the context of gender initiatives: “If the roster
itself did not achieve this end [gender representation], then states could move to mandatory
representation of particular groups on the roster”. Gus Van Harten, “The (lack of) women arbitrators in
investment treaty arbitration”, FDI Perspectives (2012),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005336.

25
necessary evil, or a burden that could even be harmful to minorities themselves. To go

into a little more detail, a supportive approach to imposing quotas on the MIC would be

the following: in democratic societies, where the principle of equal opportunities

operates - at least formally - the goal of social promotion has unquestionably not been

achieved in many contexts. Thus, diversity remains a desideratum in many political

bodies and business management boards, despite the efforts of supranational institutions

such as the EU,71 and this situation has led to arguments in favour of quotas in some of

these scenarios. Since the ISDS diversity deficit would also be the direct forerunner of a

MIC that aspires to adjudicate at global level, it does not seem illogical to impose

quotas on the latter. However, this may be rejected on the basis that quotas represent an

attack on the quality of IIAs. While merit-based selection fosters a top-of-the-class

approach, diversity quotas encourage a system aimed at equality and inclusion. This

perspective views meritocracy and representativeness as two aims that are difficult to

reconcile. 72

c) Further Issues

71
The EU has also been a precursor of innovative diversity and gender policies in various areas and has
been dictating Directives and Regulations on gender equality for several decades (several precepts of the
Treaty on the Functioning of the European Union itself refer to equality between men and women). In the
Directives and Regulations framework, see, for example, Directive 2002/73 / EC, Directive 76/207 /
EEC, Directive 2000/78 / EC, Directive 2004/113 / EC, Directive 2006/54 / EC, Regulation 1922/2006,
etc. Other texts such as the Proposal for a Directive of the Parliament and the Council aimed to improve
the gender balance between the non-executive directors of listed companies and those establishing related
measures (http://eur-lex.europa.eu/ legal-content / ES / TXT /? uri = CELEX% 3A52012PC0614), have
generating intense social debate and promoting new initiatives at national level. Furthermore, the EU is
still very involved in developing of the gender equality policy through the ambitious Strategic
Engagement for Gender Equality 2016-2019 - one of its transversal axes being the promotion of equality
between men and women in the of decision-making context (http://ec.europa.eu/anti-trafficking/eu-
policy/strategic-engagement-gender-equality-2016-2019, 2017 Report on equality, between women and
men in the EU, http: //ec.europa.eu/newsroom/document.cfm?doc_id=43416).
72
Some alternatives to quota setting have been proposed, such as extending commission prerogatives, to
include carrying out checks –and in some cases, decide- whether prospective IIAs also match the MIC’s
collective composition rules. In the EU context, it has been suggested that: “the panel provided for under
Article 255 TFEU should be able to determine whether the candidate not only possesses the legal
qualification to perform the role, but also if he or she would fit the Court needs in term of diversity.”
Camilla Cordelli, “Judicial Appointments to the Court of Justice of the European Union”, 54 Acta
Juridica Hungarica 24, 38.

26
 A very brief reference will be made to various additional aspects that are both

related to the configuration of the MIC and connected with its independence and

diversity. An issue that may prove somewhat controversial concerns the optimal number

of IIAs that would make up each court division. The classic number in the investment

arbitration context is three,73 but arguments have been put forward in support of an

increase. Likewise, the optimal number of eligible adjudicators is a controversial

issue.74 On a separate issue, various voices from academia have pointed out that short

term appointments not only reduce the judges’ productivity, but may also negatively

affect their independence.75 Longer-term non-renewable appointments are therefore

preferable in the MIC framework,76 since this would reduce the risk of conflict of

interests, among other things.77 Moreover, the possible introduction of an age limit for

IIAs in the MIC has also been suggested, as this would enhance diversity in terms of

age and experience.78

73
Gabrielle Kaufmann-Kohler, “Remarks” in American Society of International Law, Proceedings of the
110th Annual Meeting, 2016, 146.
74
In CETA, the Tribunal is composed by 15 members of the Tribunal, and the TTIP´s proposal the
Appeal Tribunal is composed by 6 members. Scholars have been pointed out that such meager numbers
can affect the court´s diversity and experience. Maria Nicole Cleis, The Independence and Impartiality of
ICSID Arbitrators. Current Case Law, Alternative Approaches, and Improvement Suggestions (2017),
219.
75
Angela Huyue Zhang, “The faceless court”, 38 University of Pennsylvania Journal of International
Law 2016, 71; Aida Torres Pérez, “Can Judicial Selection Secure Judicial Independence? Constraining
State Governments in Selecting International Judges”, in Michal Bobek (ed.), Selecting Europe’s Judges,
2015, 199.
76
2016 CETA states that “Members of the Tribunal appointed pursuant to this Section shall be appointed
for a five-year term, renewable once”. TTIP indicates that: “the judges appointed pursuant this section
shall be appointed for a six-year term, renewable once”, and the EU-Vietnam FTA affirms that: “the
Members of the Tribunal appointed pursuant to this Section shall be appointed for a four-year term,
renewable once”.
77
Investment Treaty Working Group of the International Arbitration Committee, American Bar
Association Section on International Law, Investment Treaty Working Group: Task Force Report on the
Investment Court System Proposal, October 14, 2016, 27,
http://apps.americanbar.org/dch/thedl.cfm?filename=/IC730000/newsletterpubs/DiscussionPaper101416.
pdf.
78
European Federation for Investment Law and Arbitration, Task Force Paper regarding the proposed
International Court System, 17, http://efila.org/wp-
content/uploads/2016/02/EFILA_TASK_FORCE_on_ICS_proposal_1-2-2016.pdf.

27
 5.! Conclusion

The modus operandi for nominating and selecting judges making up supra-

national tribunals is evolving. Political interests no longer have a monopoly on the

process, and a series of transversal principles such as transparency, participation and

diversity are breathing new life into the way these courts are constituted.

This article has outlined some grounds for justifying diversity in the future

MIC, explored the possible role to be assigned to diversity in a successful MIC, and

examined a series of decisions on diversity that would need to be adopted in the MIC

context. The connections between diversity and the principle of independence and

impartiality have also been addressed throughout.

The article puts forward a case for adopting an exemplary stance on diversity

in the process of creating a MIC. If supranational powers such as the EU are willing to

undermine many foundations of the current international investment arbitration system,

they must also take a step forward in terms of diversity.

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