The state of international arbitration: the possibility of establishing an appeal mechanism

Currently most international investment disputes are settled through investment arbitration. Investment arbitration is not carried out by a single omnipotent body or court; rather, it is carried out by a number of different bodies (including permanent arbitral institutions as well as ad hoc tribunals). These different institutions and tribunals often produce diametrically opposing decisions (which are final and binding), in cases where similar or even the same facts are at stake. This is possible because binding precedent and stare decisis do not operate in international investment arbitration. The conflicting decisions that are being made are causing a crisis of consistency and uniformity in international investment arbitration.

In order to address this crisis and reduce the capacity for inconsistent decisions to occur, commentators have suggested various reforms to the system of international investment arbitration. One suggestion that has been put forward is the introduction of an appeal mechanism. The primary objective of this thesis is to examine this proposal in detail. The thesis explores the debate around the possible establishment of an appeals facility, analysing the basis of the call for, as well as the potential advantages and disadvantages of an appellate mechanism. It is submitted that the basis of the call has been established and that the benefits would outweigh any demerits. Accordingly, the thesis moves on to explore how an appeals facility might best be introduced. A few suggestions have been made in this regard in the past, including the creation of a centralised world investment court. This and indeed others will be closely examined in this work, Finally, the thesis will consider whether any existing international or regional dispute settlement mechanisms could serve as inspiration for any future reforms to the system of international investment arbitration.