Time for the Appeal Tribunal in Investment
Arbitration Lessons from WTO and Transitioning to the New Era
Description:... This Thesis presents a proposal for building an effective, legitimate, and transparent judicial system in the investor-state dispute settlement through an appellate review mechanism for the awards of ad hoc arbitral tribunals. Current investment dispute settlement system includes the arbitration facilities provided by institutions such as ICSID and ad hoc arbitration tribunals agreed by the disputing parties. This Thesis argues that this scheme of investment arbitration lacks the mechanisms for correcting the legal errors and securing the consistency between arbitral awards for the similar issues of investment law. As a comparable mechanism, the WTO Dispute Settlement Mechanism is examined to contribute to the establishment of a viable appellate mechanism in the investment arbitration. The WTO Appellate Body is the leading example for a multilateral dispute settlement mechanism. Therefore, lessons from the WTO experience and structure of the WTO Appellate Body are examined to create a transparent appellate mechanism for investment arbitration. Opposed to the EU TTIP Proposal on the establishment of a tribunal of first instance, the investment law must keep its ad hoc arbitration system in order to respond the unique needs of each dispute. With the aim of improving the dispute settlement system, the Appeal Tribunal, a standing body charged with deciding appeals of law, is at the center of the proposal. By preserving the flexibility of ad hoc tribunals, the Appeal Tribunal would be likely to achieve the goal of harmonizing international investment law.
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