The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime
Bibliographic record
Abstract
The European Union has established a new model of investor-state dispute settlement (ISDS) in its recent treaties with Canada and Vietnam. The EU’s new model entails a radical reworking of ISDS through, inter alia, the introduction of an appellate mechanism, the replacement of ad hoc arbitral tribunals with standing, treaty-based investment tribunals, and the replacement of party-appointed arbitrators with judges appointed by the states parties. Beyond its bilateral arrangements with Canada and Vietnam, the EU has indicated that it will pursue a treaty to multilateralize its new investment tribunal system. This talk addresses the legal compatibility of the EU’s new model of ISDS with existing instruments of the investment treaty regime in two respects. First, whether the introduction of an appellate mechanism or, indeed, the more total reworking of ISDS to establish investment tribunals, renders multilateral instruments like the ICSID Convention and the New York Convention inapplicable to the modified process of ISDS. Second, how the integration of any new appellate mechanism with existing international investment treaties might technically be achieved. The paper concludes that the EU’s new model is not compatible with the ICSID Convention and will not produce “ICSID Convention” awards that require enforcement by third states under the Convention’s unique enforcement regime. The paper further concludes, however, that the awards rendered by the EU’s new model should be treated as arbitral awards for the purposes of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Lastly, with respect to the integration of any new appellate mechanism with existing international investment treaties, the paper considers the prospects of adopting a so-called “Mauritius Convention” approach.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.011 | 0.017 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.003 | 0.008 |
| Scholarly communication | 0.014 | 0.006 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.006 | 0.008 |
| Insufficient payload (model declined to judge) | 0.007 | 0.002 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".