Appellate Mechanism in Investment Arbitration: Novis Inventis or Sophistication of Existing Mechanism?
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Description: In the past two decades, investment treaty arbitration has faced multiple challenges and criticism, which caused critics toward its efficiency and actual workability. However, it is still the main and the preferable method of dispute resolution between States and investors. Arbitration under the International Centre for the Settlement of Investment Disputes (ICSID) or UNCITRAL (The United Nations Commission on International Trade Law) allows an investor to sue a host state before an ad hoc arbitral tribunal for violations of bilateral investment treaties (BITs) or trade and investment agreements (e.g., the North American Free Trade Agreement (NAFTA)) . Investor-State Dispute Settlement (hereinafter the “ISDS”) has been criticized for the lack of an appellate mechanism and the inconsistency and unpredictability of specific arbitration awards that are rendered. These shortcomings have often been attributed to the lack of a unified approach to ISDS and the lack of exact involvement of non-disputing parties in the proceedings.