Comparing WTO panelists and ICSID arbitrators (original) (raw)
Related papers
Comparing WTO Panelists and ICSID Arbitrators: The Creation of International Legal Fields
2011
Who are people who make the decisions in trade and investment dispute settlement systems? In order to describe and analyze investment arbitrators and trade panelists, the whole populations of people nominated to ICSID’s tribunals and committees as well as to WTO Panels from 1995 to 2009 were studied, considering their specialization in law, and their career backgrounds as public servants, academics or private professionals. Applying Pierre Bourdieu’s concept of legal fields, the data suggested that both systems produce legitimacy but in quite different ways and, interestingly, that the one more similar to domestic legal systems takes that form due to political forces, not by an incremental process powered by people with legal backgrounds.
The Outsider as Insider: Profiling WTO Panelists for their impact on world trade decisions
Transnational Dispute Management Volume 14 - Issue #02, 2017
This article explores the implications and the impact of the composition of trade dispute panels on decision-making on global trade at the World Trade Organization (WTO). The main questions raised are: • Would it influence the panels' decision to have adjudicators with or without a Law background? • How much is the WTO Secretariat influencing the case-by-case analysis and outcome of adjudications? The article focuses on International Trade Dispute Settlement Adjudicators, who do not possess a Law degree. Special emphasis is given to members of ad-hoc panels and the Appellate Body (AB), which are dispute settlement mechanisms in place within the WTO Dispute Settlement System (DSS). These panel members are appointed in accordance with the Rules and Procedures of the WTO DSS set out in the framework of the Dispute Settlement Understanding (DSU). Panel and AB decisions, respectively, are not considered awards, and produce no res judicata effects, and are not meant to establish any kind of compensation. The settlement procedure is followed to establish whether there was a breach of the WTO Agreements, and nothing else. These decisions are merely reports, which contain recommendations to be adopted by the Dispute Settlement Body (DSB), formed by the representatives of all WTO Member States.
Social Science Research Network, 2019
I. Introduction Recent negotiations of trade and investment treaties between and among Canada, the European Union (EU), the United States (U.S.), and states in the Asia Pacific region have tested investor-state dispute settlement (ISDS). 1 Those opposed to ISDS argue that it provides investors with the right to challenge, and therefore potentially impede, domestic regulations implemented for legitimate public policy concerns, such as protection of the environment or public health. Others question whether ISDS contributes to, or is governed by, the rule of law. This latter concern is premised on allegations that cases are heard in confidential fora by arbitrators who are not bound by any rules of stare decisis, which together with the above-mentioned ideological stance leads opponents to question the very legitimacy of the system. 2 Certainly not all agree with each such claims. In response, proponents argue that ISDS provides a fundamental mechanism through which the rule of international law is vouchsafed, by holding States responsible for violating good governance obligations they have
AJIL Unbound
In their article “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” Joost Pauwelyn and Krzysztof Pelc recharacterize the World Trade Organization's Dispute Settlement System (DSS) as a sui generis administrative review system wherein the “Guardians of the System,” i.e., the Secretariat, no longer merely “assists” panels and the Appellate Body (AB) in their reports, but also exerts influence and control over adjudicators. For them “‘the guardians of the system’ may have contributed to the system's demise by the expansion of their influence.” This Essay attempts to illustrate that Pauwelyn and Pelc's fatalistic view of the DSS is overstated, by providing some comments into the practical functioning of the DSS. We argue that, first, the “guardians of the system” are also restrained by suitable accountability mechanisms in their functions relating to appointment and financial “oversight” of adjudicators. Second, while acknowled...
Panelists, Arbitrators, Judges: A Response to Joost Pauwelyn
AJIL Unbound, 2015
I must state from the outset that I am not convinced that an analysis like the one conducted by Joost Pauwelyn, though valuable from a statistical and quantitative point of view, is really apt to explain the different functioning of legal institutions, their efficiency in term of results achieved in relation to objectives, the satisfaction of the various group of users and the reasons for their being subjected to criticism. The different architecture of the trade and investment systems reflects different constituencies, objectives and needs. Praise and criticism come from different groups of users and nonusers, and they change over time due to changing perceptions, objectives, and interests.
Arbitrating Trade Disputes (Who\u27s the Boss?)
2012
World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those with opaque procedures regarding the appointment of international judges; Posner and Yoo on the one hand, and Helfer and Slaughter on the other, reach opposite conclusions regarding the “independence” of courts the composition which does or does not depend on the will of the parties to litigation; Alter examines various fora and concludes that, contrary to domestic process w...
Experts in WTO Dispute Settlement
Journal of International Dispute Settlement, 2012
This article offers an overview of the procedural and substantive issues that concern the use of experts by World Trade Organization (WTO) panels, ie the WTO tribunals of first instance which are responsible for the management of evidence. The purpose of using experts in WTO dispute settlement is essentially to help panelists understand and evaluate the evidence submitted and the arguments made. Expert opinions can play an important part in the decision-making of panels. How experts are used by WTO panels goes to the very nature of the WTO dispute settlement system and this article explores: whether, and the degree to which, assistance/information can be sought/accepted from outside the WTO; the degree of panels' discretion in doing so; panels' responsibility in delineating and maintaining the respective roles for experts/panelists; due process safeguards; and importantly, the related accountability of the WTO dispute system when using outside experts to address its disputes.
Politicization of a Future International Investment Tribunal's Appointment and How to Avoid it
LSN: Dispute Resolution (Topic), 2019
In 1965, the World Bank promoted the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) with the aim of filtering any political and diplomatic influence out of international investment disputes. This aim was achieved by lending several features from commercial arbitration. Today, after a successful launch phase of the Convention's mechanism, the benefit of the current investor-state dispute settlement system is de - bated. Lack of legitimacy, interference with the states' right to regulate in the public interest and doubts about the arbitrator's impartiality are some examples of the most frequently voiced concerns. Several different solutions, reaching from an investment court under the CETA for the EU-Canadian disputes to a truly multilateral court available to an open number of states, have been put forward. Most of the suggested roads leading out of the ISDS crisis provide for the establishment of a sta...