Foreign judges have been “imported” throughout history, dating back to Ancient Greece when independent city-states brought in judges from other regions to settle disputes in medieval Italy. Foreign judges continue to be used in approximately 50 jurisdictions throughout the world.
Nations appoint judges from foreign countries for different reasons. This practice may be necessary to compensate for a dearth of local capacity. Foreign judges may be integrated into courts of appeal as a legacy of colonialism. In a more recent trend, national governments reach out to foreign judges with particular expertise to serve on specialized courts.
The use of foreign judges is not without controversy. Local communities have expressed concerns that non-native judges will fail to appreciate the cultural nuances, historical context, and institutional constraints of national laws and practice. In some cases, such as post-conflict Rwanda, judges from other countries have been viewed with suspicion, reflecting fears of potential bias. To mitigate these concerns, some countries use foreign judges as an interim remedy until domestic resources accrue or limit judicial “borrowing” to narrowly defined roles.
Local Capacity
The process of developing a pool of skilled judges takes time. In countries without a well-established legal profession, especially those with smaller populations or newly established democracies, there may be insufficient numbers of qualified professionals interested in joining the courts. Foreign jurists are invited to “fill the gap” until local capacity reaches adequate levels.
Papua New Guinea and Samoa invite judges from Australian, New Zealand and the United Kingdom to serve on their courts. In Timor-Leste, foreign judges (mostly from Portuguese-speaking countries) joined the judiciary on a contract basis when independence was restored in 2002. Parliament dismissed the foreign judges in 2014 when domestic capacity improved.
After The Gambia achieved independence in 1965, its first Chief Justice was a British jurist and its second was from Nigeria. The first female Chief Justice of The Gambia was a judge from Ghana and she was replaced by a judge from Pakistan. The country’s first university law faculty opened in 2007, an important step towards the Government’s long-term goal of “Gambianizing” the judiciary.
Historical Legacy
As former colonies became independent, many retained colonial-era legal traditions. During the height of the British Empire, the Judiciary Committee of the Privy Council was the highest court of appeal for the Empire (except the United Kingdom). The Privy Council still serves as the final court of appeal for some members of the British Commonwealth, including Antigua and Barbuda, Grenada, Jamaica, Bermuda, Cayman Islands, Falkland Islands, and Gibraltar. Appeals to the Privy Council from Commonwealth countries are heard by five Justices of the Supreme Court of the United Kingdom.
Brunei, an independent country and former British protectorate, sends some civil appeals to the Privy Council; these rulings are reported to the Sultan before release. The Privy Council also heard appeals from Hong Kong until China assumed control in 1997 and the Final Court of Appeal of Hong Kong was created. The Final Court of Appeal has authority to invite foreign judges to sit on its appellate panels as non-permanent members. These judges are drawn from common law countries like Australia and Canada.
International Assistance
Countries that have experienced significant upheaval may need to rebuild their legal institutions, often doing so with international donor assistance. For example, in post-war Bosnia Herzegovina (BiH), foreign judges were appointed to the Constitutional Court to facilitate the implementation of the Dayton Accords and mitigate deeply rooted ethnic divisions. Foreign judges were also used in post-conflict Kosovo to address the distrust and hostility between the Kosovar Albanian and Serb populations and make up for the limited pool of qualified, uncompromised jurists. A careful international vetting process was instituted to select the foreign judges.
Subject-Matter Expertise
A number of countries have created special economic zones with court systems independent of their national judiciaries. They often invite foreign judges with commercial law expertise to sit with national judges. This model is followed by Kazakhstan’s Astana International Financial Centre and Dubai’s International Financial Centre. Foreign judges serve on a part-time basis with the Singapore International Commercial Court; their work is limited to appeals. Foreign judges in Singapore must comply with a special Code of Conduct for International Judges.
The Standing International Forum of Commercial Courts (SIFOCC) is an international association that promotes best practices in commercial litigation. Nine of its 44 members use foreign judges including Qatar, Kazakhstan, the Cayman Islands, the Eastern Caribbean Supreme Court and Gambia.
Judicial Selection and Tenure
The selection process for foreign judges varies by country. Most countries have a judicial council or some equivalent institution review nominations of foreign judges. Candidates are often culled from networks of judges and must meet selection criteria set forth in the constitution or national legislation. The appointment process for foreign judges may be the same as for domestic judges. This is the case in Fiji, where all candidates for the higher courts must have 15 years of legal experience in Fiji or another country. In Qatar, foreign judges may serve on any level or type of court and are subject to the same selection process as Qatari nationals: appointment by the Emir upon the recommendation of the Supreme Judicial Council of the Judiciary.
In Hong Kong, the Chief Executive appoints foreign judges based on recommendations from the Judicial Offers Recommendation Commission. Candidates must be a judge or retired judge from a common law jurisdiction with civil and criminal experience.
Tenure provisions for foreign judges also vary, though most countries offer short-term contracts, as is done in The Gambia. Foreign judges in Hong Kong serve a renewable three-year term.