Abstract
In many cases, a purely multilateral Appellate Body was recently proposed as an alternative to the two-tiered Court model—a Multilateral Investment Appellate Mechanism. In this variant, the first phase of ad hoc arbitration as practiced so far, be it as an ICSID-, UNCITRAL- or SCC-procedure, should be retained. Nevertheless, a uniform multilateral judicial Appellate Body or quasi-judicial Appellate Body should be added. However, in contrast to the proposals, in particular those made in the context of ICSID in 2004 and 2005 as well as approaches in other recent US IIAs, this should be characterized by tighter organizational structures and a panel of judges appointed for a longer period of time. This is to achieve more consistency in decision-making practice.
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Notes
- 1.
Cf. among others Cass (2001), p. 50.
- 2.
Kaufmann-Kohler and Potestà (2016), p. 71 et seq.
- 3.
Article 29 para. 4 section 3 Investment Chapter TTIP draft: “A disputing party lodging an appeal shall provide security for the costs of appeal and for the amount provided for in the provisional award.”
- 4.
According to this Calamita (2017), p. 585 et seqq.
- 5.
Similar as well in WTO-DSU, cf. Working procedures for appellate review, Rule 20.
- 6.
Foreseen like this in Article 32 BVerfGG (Act on the Federal Constitutional Court); if the there mentioned misuse fee amounting up to EUR 202,600 is enough, must be left open.
- 7.
Article 8.28 para. 2 CETA: “The Appellate Tribunal may uphold, modify or reverse a Tribunal’s award based on: […]”.
- 8.
Compare Article 8.28 para. 7 lit. b) and para. 9 lit. c) sublit. Iii) CETA.
- 9.
Article 17 para. 5 DSU: “As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.”
- 10.
Article 17 para. 6 DSU: “An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.”
- 11.
ICSID Secretariat (2004), Annex, p. 4.
- 12.
Article 52 para. 1 ICSID Convention: “Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.”
- 13.
Article 8.28 para. 2 CETA: “The Appellate Tribunal may uphold, modify or reverse a Tribunal’s award based on: (a) errors in the application or interpretation of applicable law; (b) manifest errors in the appreciation of the facts, including the appreciation of relevant domestic law; (c) the grounds set out in Article 52(1)(a) through (e) of the ICSID Convention, in so far as they are not covered by paragraphs (a) and (b).”
- 14.
Ohlhoff (2003), C.I.2., para. 106.
- 15.
- 16.
According to Ohlhoff (2003), C.I.2., para. 106.
- 17.
ICSID Secretariat (2004), Annex, p. 3: “Such a set of ICSID Appeals Facility Rules could provide for the establishment of an Appeals Panel composed of 15 persons elected by the Administrative Council of ICSID on the nomination of the Secretary-General of the Centre. The terms of the Panel members would be staggered. Eight of the first 15 would serve for three years; all others would be elected for six year terms. Each member would be from a different country. They would all have to be persons of recognized authority, with demonstrated expertise in law, international investment and investment treaties.”
- 18.
Article 17 para. 1 sentence 3 DSU: “It shall be composed of seven persons, three of whom shall serve on any one case. Persons serving on the Appellate Body shall serve in rotation.”
- 19.
Article 8.28 para. 5 CETA: “The division of the Appellate Tribunal constituted to hear the appeal shall consist of three randomly appointed Members of the Appellate Tribunal.”
- 20.
Working procedures for appellate review, Rule 4.3: “In accordance with the objectives set out in paragraph 1, the division responsible for deciding each appeal shall exchange views with the other Members before the division finalizes the appellate report for circulation to the WTO Members. […].”
- 21.
Cf. as well American Bar Association Section on International Law (2016), Executive Summary & Conclusions and Recommendations, p. 14. Cf. Article 8.30 para. 2 CETA: “If a disputing party considers that a Member of the Tribunal has a conflict of interest, it shall send to the President of the International Court of Justice a notice of challenge to the appointment. The notice of challenge shall be sent within 15 days of the date on which the composition of the division of the Tribunal has been communicated to the disputing party, or within 15 days of the date on which the relevant facts came to its knowledge, if they could not have reasonably been known at the time of composition of the division. The notice of challenge shall state the grounds for the challenge.”
- 22.
- 23.
Regarding this problem, see Kaufmann-Kohler and Potestà (2016), p. 70.
- 24.
Cf. Article 18 sentence 1 ICSID Convention; Article VIII:1 WTO Agreement, Article 47 TEU, Article 4 Rome Statute.
- 25.
Article 66 para. 1 ICSID Convention: “If the Administrative Council shall so decide by a majority of two-thirds of its members, the proposed amendment shall be circulated to all Contracting States for ratification, acceptance or approval. Each amendment shall enter into force 30 days after dispatch by the depositary of this Convention of a notification to Contracting States that all Contracting States have ratified, accepted or approved the amendment.”
- 26.
American Bar Association Section on International Law (2016), p. 120.
- 27.
American Bar Association Section on International Law (2016), p. 120 et seq.
- 28.
See European Commission (2015), pp. 35 and 37. The pending negotiations with Mexico and the already available investment protection chapter do nevertheless not include indications how the dispute settlement mechanism should be designed.
- 29.
List of the bilateral investment agreements referred to in Article 4 para. 1 of Regulation (EU) No. 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, OJ C 149 of 27.4.2016, p. 1 according to which the United Kingdom currently has concluded 94 bilateral investment agreements.
- 30.
Cf. Article 39 VCLT: “A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.”
- 31.
United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention on Transparency), has been concluded on 10.12.2014 and entered into force on 18.10.2017.
- 32.
Article 2 para. 5 Mauritius Convention: “The Parties to this Convention agree that a claimant may not invoke a most favoured nation provision to seek to apply, or avoid the application of, the UNCITRAL Rules on Transparency under this Convention.”
- 33.
Cf. Article 2 para. 2 Mauritius Convention: “Where the UNCITRAL Rules on Transparency do not apply pursuant to paragraph 1, the UNCITRAL Rules on Transparency shall apply to an investor-State arbitration, whether or not initiated under the UNCITRAL Arbitration Rules, in which the respondent is a Party that has not made a reservation relevant to that investor-State arbitration under article 3(1), and the claimant agrees to the application of the UNCITRAL Rules on Transparency.”
- 34.
So Kaufmann-Kohler and Potestà (2016), p. 86.
- 35.
Article 16 ECT: “Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Part III or V of this Treaty, (1) nothing in Part III or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and (2) nothing in such terms of the other agreement shall be construed to derogate from any provision of Part III or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, where any such provision is more favorable to the Investor or Investment.”
- 36.
Cf. Article 8.27 para. 12 CETA: “In order to ensure their availability, the Members of the Tribunal shall be paid a monthly retainer fee to be determined by the CETA Joint Committee.”
- 37.
Hodgson (2014), p. 3 assumes cost amounting to USD 373,200 per procedure and party.
- 38.
References
American Bar Association Section on International Law (2016) Investment Treaty Working Group, Task force report on the investment court system proposal, initial task force discussion paper of 16.10.2016
Calamita NJ (2017) The (in)compatibility of appellate mechanisms with existing instruments of the investment treaty regime. J World Invest Trade 18:585–627
Cass DZ (2001) The “Constitutionalization” of international trade: judicial norm-generation as the engine of constitutional development in international trade law. Eur J Int Law 12:39–78
EFILA (2016) Task Force Paper regarding the proposed International Court System (ICS) of 1.2.2016
European Commission (2015) Trade for all – towards a more responsible trade and investment policy, COM (2015) 497
Hodgson M (2014) Counting the costs of investment treaty arbitration. GAR News of 24.3.2014
ICSID Secretariat (2004) Possible improvements of the framework for ICSID arbitration. Discussion Paper of 22.10.2004
Kaufmann-Kohler G, Potestà M (2016) Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? – Analysis and roadmap
Ohlhoff S (2003) Streitbeilegung in der WTO. In: Berrisch HJ, Prieß GM (eds) WTO-Handbuch. C.H. Beck, München, pp 677–749
Sauvant KP (2016) The evolving international investment law and policy regime: ways forward. Policy Options Paper, ICTSD & WEF
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Bungenberg, M., Reinisch, A. (2018). Standalone Appeal Mechanism: “Multilateral Investment Appeals Mechanism” (MIAM). In: From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-01189-5_9
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