Visiting Judges at Home and Abroad
March 7, 2023
Readers may be familiar with phenomenon of visiting judges—where judges from one federal court sit by designation on a different federal court. These judges are typically restricted from holding any other office or sitting on foreign or international courts. But after they leave they bench, they may do whatever they please. The latest issue of Judicature includes a profile of visiting judges by Professor Marin Levy of Duke Law School accompanied by a profile of their rough international counterparts—whom TLB contributor Alyssa King and I have called traveling judges. These are individuals who travel far from their home jurisdiction to sit on the domestic courts of other countries. Unlike “visiting” judges, who sojourn domestically, “traveling” judges travel to sit on foreign courts.
As Alyssa King and I explore in the Judicature article, Visiting Judges: Going Global, there is a growing phenomenon of domestic courts dedicated to international commercial disputes that hire traveling judges from other jurisdictions. Some of these courts resemble the specialized New York Commercial division or many other states’ courts that have dedicated business divisions, as TLB founding editor John Coyle has explored. Others are courts for special economic zones in areas like Dubai, Abu Dhabi, and Kazakhstan. These courts are, perhaps obviously, bastions of transnational litigation. Many have their subject matter jurisdiction limited to civil or commercial disputes with some kind international dimension.
In a recent article in the American Journal of International Law, Alyssa King and I examined commercially focused courts around the world to document which hire traveling judges from other jurisdictions and who those judges are. As of June 1, 2021, we identified nine jurisdictions that hire traveling judges, which collectively accounted for 72 sitting traveling judges. Several judges sat on two or more courts. For example, the former Chief Justice of the Supreme Court of Canada sat on the Hong Kong Court of Final Appeal and the Singapore International Commercial Court (SICC), while the former Chief Justice of Australia sat on those courts and the Dubai International Financial Centre (DIFC) Courts.
The vast majority of traveling judges were first judges in their home jurisdictions. Commercial courts may be attractive to retired judges because they offer judges the opportunity to function more like arbitrators — a popular career choice among retired judges — and commercial courts may also seem more removed or insulated from local politics. As judges in a foreign jurisdiction, traveling judges may have the opportunity to shape international commercial law, to serve both a local and international public, and embrace the public nature of this service.
There may be obstacles, however, both from home and in hiring jurisdictions. Civil society in traveling judges’ home jurisdictions have sometimes criticized traveling judges as lending legitimacy to regimes with questionable human rights records. In August 2022, two Irish judges resigned from the DIFC courts almost immediately after they were appointed, after prominent members of civil society criticized them for “lending credibility” to the UAE judicial system. A recently retired New Zealand judge who had been sworn in with the Irish judges resigned a few weeks later following similar pressure from human rights campaigners. Similar issues have arisen with the Hong Kong Court of Final Appeal, a general jurisdiction court with a significant international commercial docket. Three judges have resigned from that court, including two sitting members of the UK Supreme Court, and a fourth chose not to renew her term. Other judges have stayed on in the face of criticism from prominent human rights lawyers in their home jurisdictions, and more recently, from Hong Kong lawyers and NGOs.
Like visiting judges within the U.S. federal system, traveling judges come as outsiders who offer the possibility of promoting consistency — in terms of procedural and substantive law as well as legal culture and norms — across multiple courts. Also like visiting judges, traveling judges lack certain knowledge or training in local traditions, but in exchange, they also likely “transmit[ ] critical institutional knowledge” about their home jurisdictions, legal cultures, and laws. Perhaps the calls for resignation reflect fears that this sort of learning goes two ways—and that travel could promote an approach to commercial law devoid of considerations for political or social rights even as businesses are increasingly expected to be socially and environmentally responsible.
Thus far, as previously noted on this blog, few traveling judges hail from the United States, and those who do have come from Delaware (not, e.g., New York or California). Perhaps our article highlighting this phenomenon for the judge readership of Judicature will spark more interest. Or perhaps more federal judges are happy visiting their sister circuits without having to travel so far afield. International commercial courts that hire traveling judges may be fertile petri dishes for experimentation and innovation with procedures and judicial institutions for handling transnational cases—but they also pose unique challenges.