CYIL Vol. 7, 2016

VOJTĚCH TRAPL CYIL 7 ȍ2016Ȏ may in part explain the surge of criticism. This deficiency in terms of accountability and legitimacy calls for remediation. At the same time, the remedies should avoid sacrificing the gains of investor-State arbitration, which do exist as well. Looking at the big picture, one can cite three. First, neutrality or, in other words, distance of the decision-makers from politics – the depoliticization for which investment arbitration was praised – and from business interests at the same time. Second, finality and enforceability of the award; the former saves time and costs, and the latter ensures the ultimate effectiveness of the system. And, third, the manageability or workability of the process; it is “light” compared to “heavier” permanent adjudicatory bodies requiring significant resources, such as, for instance, the World Trade Organization (WTO) Legal Affairs and Rules Divisions and Appellate Body (AB) Secretariat. Thus, the criticisms have led some interest groups and scholars to fundamentally disagree with the regime in itself and to advocate for dismantling it or at least radically transforming it. Suggestions for reforms of the investor State arbitration system are in fact not new; they had already been advanced more than a decade ago, 26 and the creation of appellate mechanisms or permanent bodies tailored for investment disputes has been contemplated on several occasions during the last decade. The most significant of these proposals deal first with proposals for appeal mechanisms, specifically those put forward by the ICSID and OECD, as well as the programmatic language contained in a number of IIAs. They address next the pioneering initiatives towards the creation of permanent investment bodies in recent IIAs concluded by the EU, in particular the Canada-EU Comprehensive Economic and Trade Agreement (CETA) and the EU-Vietnam FTA. In fact, investor-State arbitration has been moving towards more “openness” thanks to significant steps which include (i) the amendment of arbitration rules (see, e.g., the 2006 amendments to the ICSID Rules); 27 (ii) the insertion of transparency provisions in IIAs; 28 and (iii) foremost and on a more global scale, the adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (“Transparency Rules”) and of the Mauritius Convention. In 2013 the UNCITRAL adopted the Rules on Transparency in Treaty-based Investor-State Arbitration (the “Transparency Rules”) together with a new Article 1(4) of the UNCITRAL Arbitration Rules (as revised in 2010). The Transparency Rules introduced a significant degree of publicity of the arbitral proceedings, by providing inter alia , for the public disclosure of awards and other key documents (Articles 2 and 3), open hearings (Article 6) and submissions by non-disputing parties (Articles 4 26 See, for a particularly “visionary” view which would anticipate many of the changes, Wälde (2007). 27 AURÉLIA ANTONIETTI (2006), The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules , ICSID Review – Foreign Investment Law Journal , Vol. 6(2), pp. 427-448; UNCTAD (2012), Transparency, A sequel, Series on Issues in International Investment Agreement II, pp. 43-47. 28 UNCTAD (2012), pp. 36-41.

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