The Concept of Appeal

One of the innovations in international law introduced in the Marrakech Agreement Establishing the World Trade Organisation (WTO) was the Appellate Body (AB), then one of its kind in such a global and multilateral organization. Presumably, for trade and investment matters, the international community has now an international adjudication authority that operates as a final instance to hear appeals arising from its international panel procedures. The cutting-edge WTO AB precipitated a following as several other multilateral inter-governmental arrangements were either concluded (the International Center for the Settlement of Investment Disputes (ICSID) Discussion Paper Oct. 22, 2004, Central America Free Trade Agreement (CAFTA-DR-US), the Olivos Protocol in the Southern Common Market (MERCOSUR), the US Congresses 2002 Trade Promotion Authority Act, or proposed (the 3d draft Free Trade Area for the Americas (FTAA)). They embrace the concept of a permanent international instance for appeal from arbitral or panel awards including also investment disputes arising between the state (public) and the individual legal person (private). Arguably, in principle, this trend is inspired by the concept of domestic courts. But - is it really assuming such role? Much has been written about the gap between theory and practice regarding compliance with WTO panel as well as AB awards. A review of the literature shows that in the discourse on the judicialisation of international organizations and regimes, the inductive approach focusing on various aspects of the appeal procedure, e.g. standard of review, relation to domestic courts and domestic law, judicial law making, effectiveness of the process, etc., has been dominant. Similarly, the literature on annulment of an award has been largely focused on ICSID procedures and the investor-state relationship. In this paper, I am arguing that what requires a profound debate are rather deliberations on the purpose and role of appeal (and finality) in general, and specifically - in international law. Therefore, this paper will focus on (a) the meaning of finality in international trade and investment dispute settlement (DS), and (b) the corollary designation of appellate to adjudicative bodies in international trade and investment law, which do not satisfy those characteristics that make municipal courts the institutions of justice that they are. The main common denominator arising explicitly or implicitly in the discourse is that an appeal instance is warranted as a means to harmonize increasingly fragmented international jurisprudence and law. In the following preliminary thoughts on the subject which I tackle in a deductive approach, I explore the theoretical teleology of finality and how it is served by the appeal process. I begin by identifying the meaning of, and purpose served by, finality for justice and the rule of law (consistency, integrity, and certainty). I then discuss two core principles of law designed to sustain finality - res judicata and stare decisis. Next, I analyze the divide separating international law theory from practice, and arising from the difference between municipal law (in which these principles are rooted) and international law; and apply it to the difference between courts and tribunals (litigation and arbitration). I then list some of the issues emerging from the international legislation's legalization of DS (mainly the WTO and NAFTA provisions) and adjudication, which when juxtaposed with the principles above, reveal the paradoxical nature of contemporary international In conclusion, I argue that in order to prevent further discontinuities in public international law, and satisfy the need for finality, a discussion of the relationship between the theoretical and practical developments of public international law must precede, at least accompany, the development and design of procedural aspects of appeal.

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