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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