Is “Moonlighting” a Problem?

The report examines the 'moonlighting' of ICJ judges in ISDS arbitrations, noting that 20 judges have served in at least 90 such cases. It highlights the significant financial incentives for judges to act as arbitrators compared to their fixed ICJ salaries and argues that this practice may undermine the ICJ's reputation for impartiality and independence.

• Research indicates that 7 current and 13 former ICJ judges have served as arbitrators or annulment committee members in investor-state dispute settlement (ISDS) cases during their tenure, with these 20 individuals appointed at least 92 times and serving in at least 90 cases.
• ICJ judges have been involved as arbitrators in approximately 10 per cent of all known treaty-based investment cases as of July 31, 2017, based on 78 treaty-based cases out of a total of 817.
• There is a significant disparity between the fixed annual salary of ICJ judges, which was roughly USD 173,000 in 2016, and the potential earnings from ISDS arbitration. For example, in 7 concluded cases involving the three most frequent judge-arbitrators, the judges were paid over USD 1.1 million, averaging over USD 159,000 per case per judge.
• The authors argue that the practice of serving as arbitrators may conflict with the ICJ Statute's prohibition against engaging in 'any other occupation of a professional nature' and could create incentives for judges to dedicate less time to the court's caseload.
• The simultaneous role of ICJ judge and ISDS arbitrator may compromise perceived and actual independence, as arbitrators are typically party-appointed, potentially creating incentives to rule in favor of certain states to influence future appointments.
• The document notes potential conflicts of interest when ICJ judges decide cases involving treaty clauses—such as expropriation and fair and non-discriminatory treatment—that overlap with issues they may have decided in ISDS tribunals.

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} }