Paolo Vargiu
Towards a New System of ICSID Review
Arbitration is one of the main mechanisms for the settlement of disputes between States and foreign investors. The increase in the number of foreign investors has led to the creation of domestic investment laws characterised by the provision for dispute resolution through international arbitration. Moreover, there has been a proliferation of Bilateral Investment Treaties (BITs) and Free Trade Agreements that contain specific provisions for the settlement of disputes by recourse to an arbitral tribunal, in most cases constituted within the framework of the International Centre for the Settlement of Investment Disputes (ICSID). The principle of finality characterises the settlement of international disputes by recourse to arbitration. A fast and amicable solution to the controversy seems to be more important than the substantive correctness of the decision. The absence of a second instance mechanism allows the parties to avoid the technicalities of national procedural rules and to obtain a final and binding decision not subject to any possibility of review. Moreover, awards rendered within the ICSID framework are not subject to appeal due to an explicit bar set out in Article 53 of the ICSID Convention. Article 52, which establish the in-built annulment mechanism for ICSID awards, virtually covers all the possible defects of an award.
Most international dispute settlement systems – and dispute settlement chapters in regional trade agreements such as the ASEAN or the NAFTA - have dealt with the problem of the revision of decisions and awards, providing different solutions to the extent that there was a need for more or less grounds for revision in the system. An effective appellate mechanism – the Appellate Body - has been established within the World Trade Organisation (WTO). The European Court of Justice (ECJ) works as a second instance tribunal on decisions rendered by the Court of First Instance in those matters subject to its jurisdiction. On the other hand, the International Court of Justice (ICJ) only has the power to revise a judgment conferred on it by Article 61 of the Statute of the Court.
In 2004 the ICSID Secretariat published a Discussion Paper that proposed a model for an ICSID Appeals Facility. This was a consequence of the fact that several treaties envisaged - even if only in broad terms - the creation of an appeals facility for arbitrations between States and foreign investors, but also negotiations on new treaties with provisions on an appeal mechanism have been conducted by ICSID contracting parties outside the framework of the ICSID Convention. Indeed, the trend goes towards a solution that provides for the possibility to request an appeal against awards rendered in investor-State disputes, be it within or outside the framework of the ICSID Convention. These instances have been recently incorporated in BITs and Free Trade Agreements (in particular, the U.S. Model BIT of 2004).
This research is aimed to propose a suitable solution for the revision of awards rendered in disputes between States and foreign investors, in the light of the existing second instance mechanisms in the field of international law and, especially, the particular characteristics of mixed international arbitration – which require a solution that can be only partially modeled on existing mechanisms.
Professor Mary Footer
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Academic qualifications
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Awarding institution
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JD
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University of Cagliari
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LLM
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University of Nottingham
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2005 - 2007: Research Assistant, International Law and European Union Law, School of Law, University of Cagliari (Italy)
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2005 – 2006: Teaching Assistant, School of Law, University of Cagliari (Italy). Modules: International Law, International Trade Law, European Union Law.
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2008 – 2009: Teaching Assistant, School of Law, University of Nottingham (UK). Module: European Convention on Human Rights.
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2009 – 2010: Teaching Assistant, School of Law, University of Nottingham (UK). Module: Law of the European Union.
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VARGIU P. (2008), Review of MATEUS A., MOREIRA T., Competition Law and Economics: Advances in Competition Policy and Antitrust Enforcement (Kluwer Law International), P.P.L.R. 2008, 5, 221-224.
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Barrister (Italy).
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Member of the Board of SHIMANTO NGO, devoted to human rights based projects in developing countries.
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Teacher and Demonstrator of the “Presentation Skills for Researchers” course, Graduate School, University of Nottingham (UK).
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Lecturer in Law, Leicester University