The system of appeal set out in the WTO has been regarded as a model for the thinking about the introduction of appellate facilities in the area of investment. The introduction of an appeal facility has been discussed by the International Centre of Investment Disputes (ICSID) secretariat in 2004 with the aim of improving the process of arbitration under the ICSID. A number of countries have already provided in their regional trade and investment agreements the possibility to set up an appellate process for investment arbitration. Although for the time being the ICSID members have decided not to pursue the idea of an appeal facility, the issue is still of interest. On the one hand because of the reference to an appellate mechanism made in several investment agreements and, on the other hand, because of the uncertainty stemming from the inconsistent case law of ICSID annulment Committees. It is therefore worth considering whether the WTO appeal mechanism could really be a model for investments disputes. In this perspective the chapter first analyses the appellate review in the WTO and its functions. After an introduction to the ICSID annulment procedure, it then discusses the contentious issue of the role of ad hoc Committees in theory and in practice. Finally the ICSID proposal for an appeal mechanism in international investment dispute settlement is analyzed and it is discussed whether and how the WTO system can represent a model for investment disputes.
From Annulment to Appeal in Investor-State Arbitration: Is the WTO Appeal Mechanism a Model?
SACERDOTI, GIORGIO;RECANATI, MATILDE
2013
Abstract
The system of appeal set out in the WTO has been regarded as a model for the thinking about the introduction of appellate facilities in the area of investment. The introduction of an appeal facility has been discussed by the International Centre of Investment Disputes (ICSID) secretariat in 2004 with the aim of improving the process of arbitration under the ICSID. A number of countries have already provided in their regional trade and investment agreements the possibility to set up an appellate process for investment arbitration. Although for the time being the ICSID members have decided not to pursue the idea of an appeal facility, the issue is still of interest. On the one hand because of the reference to an appellate mechanism made in several investment agreements and, on the other hand, because of the uncertainty stemming from the inconsistent case law of ICSID annulment Committees. It is therefore worth considering whether the WTO appeal mechanism could really be a model for investments disputes. In this perspective the chapter first analyses the appellate review in the WTO and its functions. After an introduction to the ICSID annulment procedure, it then discusses the contentious issue of the role of ad hoc Committees in theory and in practice. Finally the ICSID proposal for an appeal mechanism in international investment dispute settlement is analyzed and it is discussed whether and how the WTO system can represent a model for investment disputes.
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