International Arbitrators vs. International Judges

I see it more as a matter of established principle than theory that the ultimate judge of public law should have tenure, although this principle does no doubt have an underlying basis in theory…. The perceived bias [of international arbitrators] argument does not call for the present system to be reformed by reverting to domestic courts; the clear alternative is to create an international investment court, modelled after the many domestic or international courts that finally decide regulatory disputes. Put differently, the appropriate international response to actual or perceived bias in domestic courts should be to establish an adjudicative body that is less (not more or also) open to a perception of bias. One last argument against an international court is that it is not practical or politically achievable; I accept this may be true at present in terms of a full-scale multilateral project (though there are some interesting opportunities at the regional/ plurilateral level), and it does not detract from an international court being ‘the right thing to do’, if one’s aim is to free the system from an unnecessary perception of bias.

So sorry, but can one responsibly speak of an “international court” of “tenured judges” who will be free of perceived bias without at least a thought to how they will be recruited? Election by the General Assembly of the UN after the usual rounds of sterile receptions and purely political horsetrading in New York–sometimes with good intentions, sometimes cynical; and frequently frivolous? (Without in any event, one supposes, any understanding that there will be “safe seats” for permanent members of the SC since they are capital exporters.) Or a “regional” international body from a heavily capital-importing continent staffed entirely by “judges” from that region? “Judges” who have spent their entire working lives as the employees of governmental elites?

How are such persons to be perceived as possessed of more legitimacy than arbitrators chosen by the parties, or at any rate in accordance with their agreement?… Who would not welcome an international investment court comprised of one’s favorite mentors, whose minds are clear and whose hearts are in the right place? But that, I fear, is not on offer. We have to decide whether we want more law or more politics. At the international level, which is easier to get right?