Challenges of judges and arbitrators in international courts and tribunals is a vastly understudied subject. To correct this imbalance, this Article makes three novel contributions. First, and for the first time, it details and compares challenge procedures across a variety of international courts and tribunals, including both permanent and ad hoc institutions. Second, it provides unique data on challenges and provides a detailed analysis of their outcomes. Third, it makes two concrete recommendations that should be adopted as baseline requirements to improve and harmonize existing challenge procedures: (1) it proposes that an external or semi-external institution take decisions on challenges, and (2) it proposes adoption of a common standard of review based on a reasonable third party observer.
The analysis proceeds as follows: Part I first explains why a comparative analysis of rules from different courts and tribunals is necessary and warranted, and then examines the diverse provisions applicable to challenge procedures in some of the most important international courts and tribunals; Part II assesses new empirical data relating to the number of challenges and the success rate of challenge procedures under some of those rules, and explains some of the reasons for those challenges; Part III builds on these findings and concludes by suggesting ways to strengthen the challenge and recusal rules within the existing procedural systems.
Chiara Giorgetti, Between Legitimacy and Control: Challenges and Recusals of Arbitrators and Judges in International Courts and Tribunals, 49 Geo. Wash. Int'l L. Rev. 205 (2016).