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giving opportunity to all Judges to serve” (emphasis added). Consequently,
neither the investor nor the State will have an impact on the individual
composition of the panel hearing the dispute. This is clearly contrary to
traditional investor-State arbitration where the disputing parties have
autonomy and are free to select their own party-appointed arbitrators. 57
(d) Criticism of Appointment System
By abolishing the party autonomy on the appointment of arbitrators,
the ICS responds to the traditional ISDS criticism of the occasional lack of
58
objectivity or that parties have influence over the arbitration process. However,
the ICS Tribunal Members selection process inserts a significant element of
political influence over ISDS which frustrates the objective of depoliticization
that ISDS was designed to achieve. Over the years, criticisms have emerged as to
the appointment of judges to international courts and tribunals. Participants in
the 2010 Brandeis Institute for International Judges discussed the election and
re-election procedures in international courts and tribunals and commented :
“Elections that take place within the UN system were
particularly criticized, both for the lack of transparency
in how judicial candidates are nominated, and for ‘horse
trading’ at election time. This term refers to the promises
and counter promises made among states to support
one another candidates for high-profile posts, including
judicial positions at the ICJ, ITLOS, ICTY, and ICTR. It was
56. Article 8.27(7) of the CETA; Article 12(6) of the EU-Vietnam FTA; Article 9(7) of the TTIP.
57. See for example, Article 9 of UNCITRAL Arbitration Rules (as revised in 2010).
58. See J. Paulsson, Moral Hazard in International Dispute Resolution, 25(2) ICSID Review 2010,
339 - 355 (sparking a debate that party-appointed arbitrators are untrustworthy and advocating
the prohibition or at least rigorous police of the practice of unilateral appointments).
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