446 / 536
432
VOJTĚCH TRAPL
CYIL 7 ȍ2016Ȏ
ITI shall be considered “to arise out of a commercial relationship or transaction for
purposes of Article I of the New York Convention”.
Finally, doubts could arise if the ITI Statute were to provide a two-tiered
adjudication process. However, it is accepted under many national arbitration laws that
the parties may agree on a two-level arbitration process. The presence of an internal
appellate mechanism does not change the nature of the process. In this context, awards
issued by the first-tier tribunal may only be enforced under the Convention once the
time limit for the appeal has expired. Finally, it should be added that during the drafting
works of the NYC it was also confirmed that the Convention does not preclude two-
tier arbitration in any way.
Because of its very function an Appeal Mechanism would naturally endeavor
to pursue coherence and consistency
across
separate IIAs. However, an Appeal
Mechanism would be able to require
de facto
adherence to its own rulings, since an
investor-State tribunal would, even in the absence of a formal rule of
stare decisis,
expect the Appeal Mechanism to apply the same principles to any new award that is
appealed. A number of issues will need to be considered in the design of the Appeal
Mechanism. These include: (i) the grounds of appeal and the standard of review; (ii)
the effect of the appellate decision; and (iii) the binding nature (vis-à-vis whom?) of
the decision. One important aspect would be the determination of the awards subject
to appeal. Under the ICSID Convention framework, there is only one “award”, i.e.
the final award putting an end to the arbitration.
The Opt-in Convention, for its part, extends those options to existing IIAs. In
other words, the Opt-in Convention is the instrument by which the Parties to IIAs
express their consent to submit disputes arising under their existing IIAs to the ITI/
AM. Further, the Opt-in Convention approach targets one discrete issue of IIA reform,
i.e. only the treaties’ investor-State arbitration provisions. Hence, the non-dispute
settlement-related issues of the IIAs would not be affected, and the new dispute
resolution bodies (whether the ITI or the AM) would apply the existing substantive
standards in investment treaties. With respect to dispute settlement related matters, the
scope of, and requirements for, jurisdiction and admissibility provided in the IIA would
also remain unchanged. Moreover, the Opt-in Convention would primarily be aimed
at
existing treaties.
Indeed, the extension of the new dispute resolution mechanisms
to
future treaties
appears easier to effect, as States may simply refer to the ITI or AM
Statutes in their newly concluded treaties, if they so wish.
In this respect, the UNCITRAL may also consider possible work on providing
model clauses for future IIAs and legislation on investment. A further general
observation is in order on the choice in the Opt-in Convention in favor of either
the ITI or the AM or both. While inspired by similar concerns, the ITI and the
AM reflect somewhat different philosophies of reform of the IIA dispute resolution
regime: through the creation of an AM, investor-State arbitration maintains most of