Eleventh Global Studies Conference

Abstract

International arbitration has become the major and most effective means of investor-State dispute settlement (ISDS) mechanism since the last quarter of the previous century as a result of foreign investors’ and capital exporter States’ widespread and strong demands of confidence. In this period, International Center for Settlement of Investment Disputes (ICSID) became the main institution for the ISDS mechanism. The prominence of international treaty arbitration has arisen chiefly from the fact that it establishes a fast, impartial and relatively costless mechanism exempt from national regulations for foreign investors, and from finality and direct enforceability of arbitral awards. Recent attempts in the cadre of Canada–EU Investment Agreement (CETA), TTIP and UNCTAD announce the oncoming constitution of a permanent Investment Court and the very first establishment of an Appellate body in ISDS proceedings. This presentation examines the basis and development of treaty arbitration, the structure and features of the permanent Investment Court and the Appellate body established in CETA as well as the contribution of the mentioned bodies to international investment law and formation of ‘minimum international standards’. In this respect, this study will focus on the effect and outcomes of the establishment of a permanent Investment Court and Appellate body on the discussion about ‘national treatment’ versus ‘minimum international standards’ and on independence that has been continued among developed and developing countries on legal, political, and economical fields since late-19th century. It is observed that the international law had a corrective effect over the national regulations in ICSID arbitral awards regardless the chosen applicable law, however, it is not possible to argue that a unity of jurisprudence is created yet. In addition, it is noticed that different arbitration tribunals have given contradictory judgments on similar cases. Hence, it is deduced that a permanent Investment Court and the Appellate body will gradually contribute to the aims of the enhancement of ‘minimum international standards’ and creation of a unity of jurisprudence in the settlement of international investment and trade disputes, as well as of strengthening the ethical principles and impartiality of arbitrators.