Is “Moonlighting” a Problem?

This commentary by the International Institute for Sustainable Development (IISD) examines the practice of International Court of Justice (ICJ) judges serving as arbitrators in investor-state dispute settlement (ISDS) cases, questioning whether this 'moonlighting' conflicts with the ICJ Statute's prohibition on professional occupations and affects judicial independence.

• Research indicates that 7 current and 13 former ICJ judges have served as arbitrators or annulment committee members in ISDS cases during their tenure, with these 20 individuals appointed at least 92 times. This means ICJ judges served as arbitrators in approximately 10 per cent of the 817 known treaty-based investment cases as of July 31, 2017.
• The ICJ Statute prohibits judges from exercising political or administrative functions or engaging in "any other occupation of a professional nature," yet there has never been a formal challenge against an ICJ judge for taking an arbitration case based on this rule.
• There is a significant economic incentive for ICJ judges to serve as arbitrators. While ICJ judges receive a fixed annual salary of roughly USD 173,000 (as of 2016), ISDS arbitrators are paid per hour or day. For example, ICSID arbitrators can receive a fee of USD 3,000 per day of work.
• Analysis of the three ICJ judges who most frequently served as ISDS arbitrators (Peter Tomka, Christopher Greenwood, and James Richard Crawford) showed that in 7 concluded cases where fees were disclosed, they were paid over USD 1.1 million, averaging over USD 159,000 per case per judge.
• The practice of ICJ judges serving as party-appointed arbitrators may create conflicts of interest or perceptions of bias, potentially influencing how they rule in ICJ cases to affect future appointments in investment arbitrations.
• Overlaps exist between ICJ cases and investment arbitration issues. For instance, in the Certain Iranian Assets case, Iran seeks declarations on breaches of clauses like fair and non-discriminatory treatment and expropriation, which are common in investment treaties and often decided by tribunals involving ICJ judges.

APA

Bernasconi-Osterwalder, N., & Brauch, M. D. (2017). Is “Moonlighting” a Problem? International Institute for Sustainable Development. https://www.iisd.org/sites/default/files/publications/icj-judges-isds-commentary.pdf

Chicago

Bernasconi-Osterwalder, Nathalie, and Martin Dietrich Brauch. Is “Moonlighting” a Problem? International Institute for Sustainable Development, 2017. https://www.iisd.org/sites/default/files/publications/icj-judges-isds-commentary.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |last2=Brauch |first2=Martin Dietrich |title=Is “Moonlighting” a Problem? |publisher=International Institute for Sustainable Development |date=November 2017 |url=https://www.iisd.org/sites/default/files/publications/icj-judges-isds-commentary.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2017moonlighting, author = {Bernasconi-Osterwalder, Nathalie and Brauch, Martin Dietrich}, title = {{Is “Moonlighting” a Problem?}}, institution = {International Institute for Sustainable Development}, year = {2017}, month = nov, url = {https://www.iisd.org/sites/default/files/publications/icj-judges-isds-commentary.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }