WTO AB as a model for other adjudicatory bodies-the case of EU’s investment court system

Abstract

The World Trade Organization’s Appellate Body (AB) has over the years served as an important point of reference in the ongoing debate over possibilities of reform of the existing regime of Investor-State Dispute Settlement (ISDS). ISDS, based on arbitration, has been criticized, inter alia, for lack of transparency, insufficient safeguards of adjudicatory independence and too weak representation of public interest. Replacement of arbitration with a judicial institution has been long considered by the critics among possible remedies to the deficiencies of the ISDS regime, and the resulting reform proposals have often adopted the AB as an inspiration. This chapter reviews historical and recent projects of the ISDS reform in order to identify sources of such inspirations. It focuses on the European Union’s Investment Court System (hereinafter ICS), which has so far been the politically most successful initiative of judicialization of investor-state dispute resolution. The institutional design and status of adjudicators in ICS is analyzed in comparison to the AB. The chapter then discusses the issue of procedural safeguards of transparency in both institutions, as well as the status and enforceability of rulings. This comparison reveals a number of similarities and differences between both regimes.