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CYIL 7 ȍ2016Ȏ

ABOUT RECENT DEVELOPMENTS IN A FURTHER AIM TO REFORM…

transnational corporations.

Arbitration proceedings would also be too lengthy;

lack of appropriate control mechanisms, i.e. existing control mechanisms would be

weak and unsatisfactory.

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.

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.

The absence of a real appellate

mechanism would indeed make it impossible to reverse incorrect decisions

and

to sanction incompetent arbitrators.

As investment cases involve public interests

and considerable amounts of money, such restrictions would be inacceptable

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.

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

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.