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Investor Presentaiton

192 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL 1. Introducing an appeals facility 217 216 An appeals facility implies a standing body with a competence to undertake substantive review of awards rendered by arbitral tribunals. It has been proposed as a means to improve consistency among arbitral awards, correct erroneous decisions of first-level tribunals and enhance predictability of the law. This option has been contemplated by some countries. If constituted of permanent members, appointed by States from a pool of the most reputable jurists, an appeals facility has a potential to become an authoritative body capable of delivering consistent I and more balanced opinions, which would rectify some of the legitimacy concerns about the current ISDS regime. 218 Authoritative pronouncements by an appeals facility on issues of law would guide both the disputing parties (when assessing the strength of their respective cases) and arbitrators adjudicating disputes. Even if the process for constituting first-level arbitral 216 217 For the relevant discussion see, e.g., Tams, 2006. Several IIAs concluded by the United States have addressed the potential establishment of a standing body to hear appeals from investor- State arbitrations. The Chile-United States FTA was the first one to establish a "socket" in the agreement into which an appellate mechanism could be inserted should one be established under a separate agreement (Article 10.19(10)). The Dominican Republic-Central America-United States FTA (CAFTA) (2004) went further, and required the establishment of a negotiating group to develop an appellate body or similar mechanism (Annex 10-F). Notwithstanding these provisions, there has been no announcement of any such negotiations and no text regarding the establishment of any appellate body. 218 An alternative solution would be a system of preliminary rulings, whereby tribunals in ongoing proceedings would be enabled or required to refer unclear questions of law to a certain central body. This option, even though it does not grant a right of appeal, could also help improve consistency among arbitral decision making. See e.g., Schreuer, 2008. UNCTAD Series on International Investment Agreements II
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