CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ABOUT RECENT DEVELOPMENTS IN A FURTHER AIM TO REFORM… transnational corporations. 17 Arbitration proceedings would also be too lengthy; 18 lack of appropriate control mechanisms, i.e. existing control mechanisms would be weak and unsatisfactory. 19 The recourse to ad hoc annulment committees (in the ICSID system) would prevent the development of a doctrine of precedent, and thus of a consistent jurisprudence. 20 Moreover, the jurisdiction to review awards of both ICSID annulment committees and domestic courts at the seat (in case of non-ICSID awards) would be excessively limited. 21 The absence of a real appellate mechanism would indeed make it impossible to reverse incorrect decisions 22 and to sanction incompetent arbitrators. 23 As investment cases involve public interests and considerable amounts of money, such restrictions would be inacceptable 24 and there would be a lack of transparency, i.e. the investor-State arbitration regime would lack transparency and offer insufficient possibilities for third parties to participate in proceedings. 25 There do exist concerns over excessive confidentiality, of justice administered “behind closed door” in matters of public interest, as one of the first main criticisms raised against the system in connection with serious concerns about the democratic accountability and legitimacy of this dispute resolution process. While States themselves have established the mechanism and, therefore, their consent ensures its legitimacy under international law, this may not always be perceived as such by States and their constituencies. The power granted to individual arbitrators who are not part of a corps of judges is not well accepted in democracies, and the number of democratic States has increased significantly in the last decades, which 17 DAVID P. RIESENBERG (2011), Fee Shifting In Investor-State Arbitration: Doctrine And Policy Justifying Application Of The English Rule , Duke Law Journal , Vol. 60(4), pp. 977-1013, 1007 et seq. See also UNCTAD (2013), p. 4. 18 GARCIA (2004), pp. 355 f. 19 ANDERSON & GRUSKY (2007), p. 27; CHENG (2005), p. 514 f.; CHUNG (2007), pp. 104 et seq.; EBERHARDT & OLIVET (2012), pp. 34 et seq.; GARCIA (2004), pp. 341 f.; HUECKEl (2012), p. 621; Public Citizen‘s Global Trade Watch (2015), pp. 4 et seq. and 17; Poirier (2003), p. 924. See UNCTAD (2013) pp. 3 f. 22 CHOUDHURY (2008), p. 818; CHENG (2005), p. 515; GARCIA (2004), p. 342; JACQUES WERNER (2009), Limits of Commercial Investor-State Arbitration: The Need for Appellate Review, in Pierre-Marie Dupuy, Ernst-Ulrich Petersmann & Francesco Francioni (eds.), Human Rights in International Investment Law and Arbitration, Oxford University Press, pp. 115-117. 23 HUECKEL (2012), pp. 611 and 621. 24 CHUNG (2007), pp. 967 f. 25 UNCTAD (2013), p. 3; ANDERSON & GURSKY (2007), p. 8; LUCAS BASTIN (2012), The Amicus Curiae in Investor-State Arbitration, Cambridge Journal of International and Comparative Law , Vol. (1)3, pp. 208-234, 224 and 227; CHOUDHURY (2008), pp. 818 f.; EBERHARDT &OLIVET (2012), pp. 16, 49; GARCIA (2004), pp. 354 f.; GUS VAN HARTEN et al. (2010), Public Statement on the International Investment Regime, 31 August 2010; Luke Eric Peterson (2001), Challenges Under Bilateral Investment Treaties Give Weight to Calls for Multilateral Rules, World Trade Agenda, pp. 12-14, 13; POIRIER (2003), p. 926; STEPHAN W. SCHILL (2011), p. 66. 20 UNCTAD (2013), pp. 3 f.; Poirier (2013), p. 924. 21 UNCTAD (2013), p. 4; Garcia (2004), pp. 342 et seq.

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