Judicial Review of International Adjudicatory Decisions: A Cross-Regime Comparison of Annulment and Appellate Mechanisms

Journal of International Dispute Settlement, Volume 8, Issue 3, 1 September 2017, pp. 432–459, doi: 10.1093/jnlids/idw021

31 Pages Posted: 21 Aug 2017

See all articles by Freya Baetens

Freya Baetens

PluriCourts Centre of Excellence, Law Faculty, Oslo University; Leiden University - Leiden Law School

Date Written: June 14, 2016

Abstract

The call for an appellate mechanism in international investment arbitration is located within a broader debate concerning judicial review of international adjudicatory decisions. Existing avenues of setting aside, refusal of enforcement and annulment offer little solace because grounds for intervention generally do not extend to the merits. This article compares three international review mechanisms: the ad hoc annulment procedure of the International Centre for the Settlement of Investment Disputes, the Appellate Body of the World Trade Organization and the Optional Appellate Rules of the American Arbitration Association. Against this cross-regime background, the potential of a (multilateral) appellate tribunal in investment disputes, as advocated by the European Commission in its proposal for an Investment Court System, is evaluated. Notwithstanding potential disadvantages in terms of additional cost and length of proceedings, an appellate mechanism could nonetheless enhance the coherence, consistency, and, ultimately, (the public perception of) the legitimacy of international awards.

Keywords: Legitimacy, Judicial review, World Trade Organization (WTO) (Appellate Body), Transatlantic Trade and Investment Partnership (TTIP), International investment arbitration (ISDS), International commercial arbitration, American Arbitration Association (AAA) (Optional Appellate Rules)

Suggested Citation

Baetens, Freya, Judicial Review of International Adjudicatory Decisions: A Cross-Regime Comparison of Annulment and Appellate Mechanisms (June 14, 2016). Journal of International Dispute Settlement, Volume 8, Issue 3, 1 September 2017, pp. 432–459, doi: 10.1093/jnlids/idw021. Available at SSRN: https://ssrn.com/abstract=3017165

Freya Baetens (Contact Author)

PluriCourts Centre of Excellence, Law Faculty, Oslo University ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

HOME PAGE: http://https://www.jus.uio.no/ior/english/people/aca/freyab/

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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