The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime

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.

Keywords: ICSID, investor-state, arbitration, ISDS, investment treaty, European Union, CETA, TTIP, Inter se modification, VCLT