CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ABOUT RECENT DEVELOPMENTS IN A FURTHER AIM TO REFORM… before the ITI, the availability of systems of control in respect of ITI decisions/ awards (to which, for purposes of brevity, we will refer as “ITI awards”), in particular annulment and appeal and the enforcement of ITI awards, which is essential to ensure the ultimate effectiveness of the composition of the body, the ITI’s jurisdiction and the relationship with other dispute settlement mechanisms with which the ITI may interact. As to the law governing the proceedings it could be predetermined once and for all by the legal seat of the ITI could be predetermined once and for all, with the consequence that all proceedings would be subject to the same lex arbitri. It would be natural, in this case, that the legal seat of the proceedings would correspond to the physical location where the ITI were to be located. It would then be critical that such a seat have an established tradition in terms of neutrality, support of and non-interference with arbitration. One precedent for this kind of approach is the Court of Arbitration for Sport (CAS), whose proceedings are all legally seated in Lausanne and are thus all subject to Chapter 12 of the Swiss Private International Law (“PILA”) as the lex arbitri. 37 In the alternative, the choice of the seat could be left to the disputing parties or to the ITI. This solution would, in turn, reflect what is provided in most arbitral rules and be seen as most in line with “traditional” arbitration. The second option is that the law governing the proceedings refers only to international law similarly to the the ICSID Convention regime, where the arbitral proceedings are subject to the Convention and are not governed by any national lex arbitri. 38 A truly self-contained regime insulated from the supervision and control of domestic courts should not pose any problem. By not leaving the choice of the seat (and, as a consequence, of the procedural law) the ITI could result in inconsistencies if different seats under different leges arbitri were selected. The example of the ICSID Convention is instructive and could be followed in this particular respect. A further issue which the design of the ITI will have to consider is that of the law governing the proceedings before the ITI, which has important consequences for the possible supervisory competence of domestic courts, for annulment/appeal, and for enforcement. The ITI’s characterization as arbitration or court is closely connected with its new feature as the new dispute resolution body representing a significant “break” from past models, including investor-State arbitration and State-to-State adjudication, while its place within traditional categories of international dispute settlement appears uncertain. Only very few existing mechanisms are similar with the ITI, chiefly the Iran-U.S. Claims Tribunal 39 and the Arab Investment Court 37 See CAS Code, S1 and R28 and Swiss Private International Law Act (PILA), Article 176(1). See also KAUFMANN-KOHLER & RIGOZZI (2015), p. 42, para. 1.128. 38 SCHREUER (2009), p. 1244, para. 3 sub Article 62. 39 See General Declaration of the Government of the Democratic and Popular Republic of Algeria (General Declaration, “GD”), 19 January 1981; Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United

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