Alternatives to Investor-State Arbitration in a Multipolar World

This panel was convened at 9:45 am, Thursday, April 4, by its moderator, Jason Yackee of the University of Wisconsin-Madison, who introduced the panelists: Barry Appleton of Appleton & Associates; Andrea K. Bjorklund of the University of California at Davis School of Law; Cliff Manjiao Chi of Xiamen University Law School; and Celine Levesque of the University of Ottawa. * The Song Is Over: Why It's Time to Stop Talking About an International Investment Arbitration Appellate Body By Barry Appleton ([dagger]) My goal today is to stimulate scholarly discussion on one of the most contentious issues that has arisen out of investor-state arbitration: the creation of an international treaty arbitration appellate body. This longstanding debate has focused on a perceived lack of consistency within international investment arbitration decisions and a need to have an appellate body (or even some form of appellate investment treaty court) available to discipline rogue tribunals which venture outside of the terms of the international economic law treaties. I am suggesting that these types of appellate bodies are unnecessary and in any event, likely a very bad idea. I suggest that it is time to put this discussion to rest and instead to focus on the pernicious underlying symptoms which led us all to consider appellate mechanisms. When one considers the implementation of an appellate body in the context of nearly three thousand international economic law treaties, the mechanics suggested seem simply unworkable. In my view, there are insurmountable impediments to the creation of an international investment law appellate body. For example, in 2002, the U.S. Trade Promotion Act enabled the creation of an appellate body in future trade agreements. (1) This legislation provided a three-year window to enable the creation of appellate body mechanisms. Despite the legislative capacity, there was no appetite for such a process. During this three-year period, no agreements were negotiated with appellate bodies. So the challenge of discussing the operation of such an appellate body mechanism is simply that no international investment treaty appellate body has been created. There are solid reasons why no international investment treaty appellate bodies currently exist. To be effective, an appellate body would require a wholesale amendment to the ICSID Convention--an arduous task with a low probability of success within a short period of time. The ICSID ad hoc annulment committee function is quite different from that exercised by an appellate body and incompatible with the functions of an appellate body. The ICSID system is self-contained and is essentially premised on the fact that ICSID panel decisions are controlled through an ad hoc annulment system. Antonio Parra, a former deputy Secretary-General of ICSID, was the author of a thoughtful discussion paper which considered ways in which ICSID could use its rules to effectively implement an appellate body. (2) Parra's paper concluded that such a process could actually take place in the absence of an amendment to the ICSID Convention through a general inter se agreement between state parties to go to an appellate body after the tribunal of first instance. (3) Such an approach has challenges in that it must modify the ad hoc annulment process in ICSID to have it operate as an appellate mechanism. This route does have its challenges. (4) The World Trade Organization (WTO) has recently permitted the public to sit in on some of its appellate body hearings. I attended such a public hearing of the WTO Appellate Body, which provided an opportunity to observe a previously closely guarded process that the public generally does not have an opportunity to see. I witnessed the hard work done by the WTO Appellate Body to find consistency within the WTO's international economic law decisionmaking. An appellate body is best suited to address questions where there is substantial similarity in investment obligations between the parties. …

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