Disqualification for bias and international tribunals: room for a common test?

• Author: Allars, Margaret

Abstract

This Article explores the scope for the development of a bias test applying to international tribunals. In the absence of a developed test in any such tribunal, an obvious source of jurisprudence is the case-law on Article 6(1) of the European Convention, which the European Court of Human Rights applies to domestic tribunals of member states. The requirement of impartiality in Article 6(1) has remained an abstract concept, slowly evolving on the foundation of common law maxims accepted as its rationale. While United Kingdom courts claim that their recent renovation of the common law test of apparent bias is the result of the vertical effect of Article 6(1) jurisprudence, the influence appears to be in the reverse direction. By contrast, the United States constitutional and statutory tests of bias United States make no claim to influence or be influenced by Article 6(1), yet draw upon the same common law maxims. The ground shared by the bias tests under Article 6(1), in the United Kingdom and the United States, suggests the potential for development of a global test.

1. INTRODUCTION

   Independence and impartiality are desirable attributes of a judge. Unsurprisingly, the absence of these attributes in particular circumstances has been identified as a basis for disqualification of judges serving as members of international tribunals. While judicial disqualification may seem a remote concern for an international tribunal, any judicial institution must have standards and procedures for the disqualification of judicial officers for bias. The globalization of legal services, the use of ad hoc judges, and the increasing role of supranational institutions in resolving disputes suggest that the bias rule deserves to be on the agenda of an evolving global legal culture.

   A global bias rule might be expected to develop in the context of the norms governing disclosure of interests and disqualification of judges of international tribunals with dispute resolution functions. (1) Conventions and rules of the International Court of Justice, the European Court of Human Rights ("ECHR") and the World Trade Organization address such matters, but little is known of their practical operation. Perhaps international judges are rarely the subjects of recusal applications, or anticipate and resolve such matters in advance of any hearing. Because current conventions are not transparent, the content of a global bias rule must evolve in some other more publicly accessible crucible. Because bias in a tribunal impairs the right to a fair trial, the construction and application of international human rights instruments provides a context for developing a bias test potentially applicable to international and domestic courts and tribunals. The requirements of independence and impartiality, which are central to the right to a fair trial, are embodied in Article 6 of the European Convention for the Protection of Human Rights and Freedoms ("European Convention"). The jurisprudence of the ECHR on Article 6 offers an obvious resource for the development of a bias test. (2) That jurisprudence provides a standard to which a judge of the ECHR might resort if faced with a recusal application.

   This Article examines the evolution of the bias test in case law of the ECHR under Article 6(1), with a view to its evaluation against the backdrop of the domestic tests in the United Kingdom and the United States. Part II gives context to the comparison by reviewing the legal concepts deployed in bias tests in common law and civil systems. Part III examines the ECHR case law on the requirements of independence and impartiality under Article 6(1). Part IV is concerned with the common law test in the United Kingdom and, as might be expected of a member state, its responsiveness and influence in relation to the ECHR case law. Careful analysis suggests a persistently abstract assertion of principle in the ECHR and a complex dynamic in the development of the common law in the United Kingdom. Part V examines the test of bias in the United States. At first glance an unsuitable comparison, being insulated from the developments in the ECHR, the United States offers a "control" in the experiment, indicating the potential for bias tests in disparate jurisdictions to be accommodated within a global test. The hypothesis which emerges is that impartiality is the dominant concept in the ECHR and the United States, subsuming the concept of independence. Impartiality owes much to the common law tests of actual bias and apparent bias, which have incubated the possibility of a global test of bias.

2. STANDARDS AND LEGAL CULTURES

   When international tribunals are required to apply norms and determine disputes which arise for resolution by domestic judicial institutions, the borrowing of norms and methodology is more readily identified and evaluated. (3) The late Professor Charles Koch argued that through a process of borrowing from the two presently dominant legal cultures, the common law and civil legal systems, the decision-making techniques of international tribunals will evolve towards a global legal culture. (4) Interpretations of authoritative language on the case-by-case method of the common law will be interspersed with the justification of decisions according to civil law methodology, by reference to judicial and theoretical opinion and the balancing of interests.

   Such processes are not easily traced in connection with bias rules. As descriptors of desirable judicial attributes, the words "independence" and "impartiality" have obvious appeal, and are often used interchangeably. (5) However, as tests for identifying bias of decision-makers, independence and impartiality suffer from uncertainty as to their denotation and as to their relationship. These are words more readily understood by analysis of their antonyms: "dependence" and "partiality." Dependence involves an unacceptable relationship between the decision-maker and a party or its counsel in a proceeding. Partiality involves the decision-maker having an attitude of mind that is predisposed or prejudiced in favor of, or against, a party.

   Partiality dominates as a standard in case-law tests of bias. Partiality appears to include dependence, which is just one means by which partiality may be established. (6) However, a lack of dependence may not be sufficient to answer a claim of bias, because a decision-maker may be partial notwithstanding his or her independence from the parties and their counsel. Conversely, not every form of dependence results in partiality. While dependence is not the touchstone of partiality, it may not follow that independence is a necessary additional standard in any bias test.

   Partiality has been understood as falling into two broad types. Subjective bias as the ECHR terms it, or actual bias as it is known at common law, (7) is established on the basis of evidence as to the judge's interests and motives. (8) Objective bias for the ECHR, or apparent bias at common law, occurs where there is a danger, a probability, a risk, a possibility, or an apprehension as to prejudice or lack of fairness in the judge. (9) The content of the test of objective or apparent bias is contested, with substantial differences as to the evidentiary thresholds that might be set. Integral to the question as to the applicable threshold is the question of to whom the judge must appear to be biased. Specifically, should the bias be apparent to the very judge subject to the recusal application, or to judicial colleagues approaching the matter objectively, or to an observer removed from the fray but not so well informed as the judge?

   These concepts and themes have been addressed in a variety of circumstances which fall into two broad categories. The first concerns involvement by the judge in some incident or circumstance that could give rise to prejudgment, including where an office holder in the position of prosecutor, or other person, communicates with the judge ex parte; the judge has had a role as complainant or prosecutor; or the judge has previously determined the same issues in relation to a party. (10) The second category includes circumstances where the judge has an association, including as a prior legal representative of a party in the proceedings; or the judge has a family or personal relationship with a party or legal representative. (11) The circumstances in the first category tend to arise in civil systems simply by reason of institutional arrangements, but in extraordinary circumstances can arise in common law systems. The circumstances in the second category are equally likely to arise in civil and common law systems.

   The meaning of independence and impartiality, central to the ECHR test of bias, becomes more concrete when those concepts are deployed in the circumstances of a particular case. Analysis of the ECHR case-law reveals, perhaps unexpectedly, resort to maxims drawn from the common law bias test.

3. ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

   1. Rule Applying to the ECHR

      Article 21(3) of the European Convention for the Protection of Human Rights and Freedoms ("European Convention") provides that judges of the ECHR are not to "engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office. (12) The ECHR itself is to decide all questions arising from the application of this paragraph. (13)

      The European Convention and the Rules of Court of the ECHR contain more specific prohibitions. A judge is precluded from sitting alone or presiding in a case in which one of the parties is the member state of which the judge is a national or from which the judge was elected, (14) but may otherwise sit in such matters in the Chamber and in matters referred to the Grand Chamber (15) as an ex officio member. (16) Rule 28(2) spells out the bases on which a judge should recuse: a personal...