The applicability of the Monetary Gold principle in international arbitration

According to the Monetary Gold principle, the the International Court of Justice (ICJ) will not exercise its jurisdiction where the legal interests of a third state ‘would form the very subject-matter of the decision’. This principle has been interpreted narrowly by the ICJ and therefore only in two cases (The Monetary Gold case and East Timor case) the ICJ held that it could not exercise its jurisdiction due to this principle. Although the Monetary Gold principle was applied by the ICJ in cases that involved the legal interests of third states, it has been suggested that the principle should be applicable also in international arbitration and also with regard to third non-State Parties. One international arbitral tribunal already applied the Monetary Gold principle due to the interests of a third state and a few other international arbitral tribunals seemed receptive to the idea that the principle could apply to third non-State Parties. Although, at first blush, there are good reasons to argue that the Monetary Gold principle could apply in international arbitration and with regard to non-State Parties, this article explains why it is best to keep the Monetary Gold principle confined to the ICJ.