Investor Presentaiton
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tribunals remained unchanged, concerns would be alleviated
through their effective supervision at the appellate level. In a word,
an appeals facility would add direction and order to the existing
decentralized, non-hierarchical and ad hoc regime.
At the same time, absolute consistency and certainty would not
be achievable in a legal system that consists of more than 3,000
legal texts; different outcomes may still be warranted by the
language of specific applicable treaties. Also, the introduction of an
appellate stage would further add to the time and cost of the
proceedings, although that could be controlled by putting in place
tight timelines, as has been done for the WTO Appellate Body.2
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In terms of implementation, for the appeals option to be
meaningful, it would need to be supported by a significant number
of countries. In addition to an in-principle agreement, a number of
important choices would need to be made: Would the facility be
limited to the ICSID system or be expanded to other arbitration
rules? 220 Who would elect its members and how? How would it be
financed? Would appeals be limited to the points of law or also
encompass questions of fact? What would the standard of review
be? How would States ensure the coverage of earlier-concluded IIAS
by the new appeals structure? 221 In sum, this reform option is likely
to face significant, although not insurmountable, practical
challenges.
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At the WTO, the appeals procedure is limited to 90 days.
It has been suggested that the application of an appeals facility to ICSID
disputes would require an amendment to the ICSID Convention, which in
turn may be hard to achieve.
221 Some further questions include: Would it have the power to correct
decisions or only a right of remand to the original tribunal? Would the
establishment of an appellate review mechanism imply the phase-out of the
ICSID annulment mechanism and national-court review?
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