ICJ judge resigns from ICSID case involving China, following controversy over arbitral appointment

Judge Peter Tomka has resigned from the tribunal in place to hear the Macro Trading v. China case at ICSID, under the China-Japan bilateral investment treaty.

The resignation took place (and was accepted by the remaining members of the tribunal) on February 6, 2021*. As a result, the case is now suspended until China appoints a new co-arbitrator to join the claimant’s appointee, Miriam Sapiro, and Gabrielle Kaufmann-Kohler (who is chairing the case).**

While Judge Tomka’s motives are unknown, his resignation coincides with the start of his new term at the International Court of Justice (his third) on February 6, 2021, following a UN election in November 2020.

Mr. Tomka accepted his ICSID appointment in August 2020, before the UN election was held. Yet, when the tribunal was fully constituted in November 2020 and his appointment became widely publicised, several observers commented that the appointment seemingly departed from the ICJ’s announced policy of barring its members from participating in investor-state disputes (see here).

Subsequently, and as we noted, the Court opted to release a set of previously-unpublished guidelines governing the activities of its members. The guidelines clarified that ICJ Judges “may only participate in inter-State arbitration cases” – thus implicitly ruling out the judges’ participation in new*** investor-state disputes.

As we noted, the ICJ has been particularly busy in recent times, releasing two judgments of potential interest for investor-state arbitration practitioners last week; see our reviews of the Court’s judgments in Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates).

*[Updated, February 9, 2021: we have updated this article to reflect the fact that Mr. Tomka resigned on February 6, 2021, and not on February 6, 2020, as originally stated. Apologies.]

** In January 2021, ICSID’s Secretary-General opted to suspend the case, as one of the parties had failed to make the required advances on costs. If this is not remedied within six months, the Secretary-General may ask the tribunal to discontinue the proceedings.

*** As we also noted in a footnote, a handful of judges opted to remain involved in a number of investor-state arbitrations that predated the new policy; these arbitrations are mostly at advanced procedural stages.