Restoring consistency, certainty and predictability to ICSID investment arbitration through the establishment of the Uniform Interpretative Board

This dissertation is about restoring consistency, certainty and predictability to ICSID investment arbitration through the establishment of the Uniform Interpretative Board (UIB).;ICSID is the most important institution undertaking the resolution of investment arbitrations across the world. This continuous inconsistency impairs the fundamental pillars of any adjudicative system which enables the parties to a dispute to have a minimum level of certainty and predictability. The inconsistency is not only a feature of the tribunal's decisions; however, it extends to the ad hoc annulment committees which are supposed to be the review mechanism in ICSID. Therefore, they failed to undertake their inherent responsibility to restore consistency and predictability to the entire system.;Inconsistency can be traced to several reasons such as absence of clarity in the provisions of BITs, different legal backgrounds of arbitrators, absence of a permanent reviewing authority, lack of precedential effect of the ICSID awards and parallel proceedings.;All the review mechanisms provided under the ICSID Convention, especially the annulment mechanism, have failed to restore consistency to the system. The practice of ad hoc annulment committees reveals a remarkable confusion as to the scope of review of the committees.;The annulment mechanism is tainted with several disadvantages, such as the uncertainty whether the annulment committees should automatically annul the award based on the existence of one or more of the annulment grounds or whether they have discretion to do so, the presumption that the finality of ICSID awards is more important than their accuracy, the absence of unified principles guiding annulment committees in reviewing ICSID awards, the lack of an effective and quick course of action in annulment proceedings, and the confusion of the annulment committees as to the scope of review adopted.;In order to restore certainty and predictability to the investment arbitration system we must enhance the consistency among the arbitral awards. We must unify the principles and rules used by the arbitral tribunals in rendering their awards and the rules used by the reviewing authority.;My argument is to restructure the current arbitration system under the ICSID aiming to produce more consistent and harmonious awards. In this dissertation, I suggest the establishment of a new entity called the `Uniform Interpretative Board' to be linked to the ICSID which comprises appellate tribunals in an attempt to mitigate inconsistency in ICSID investment arbitration.;The UIB shall introduce four interrelated solutions, namely, creating an appeal mechanism, promoting transparency in ICSID arbitration, considering unified principles and the decisions of appellate tribunals as precedents for ICSID tribunals, and enhancing the consolidation of parallel proceedings.;The UIB shall carry out the mission of compiling and unifying the entire debatable --- substantive and procedural --- rights and lay down a thesaurus of unified principles. The UIB shall take into consideration previous awards and general principles of law acknowledged from most of the countries either relating to substantive or procedural matters in order to lay down the thesaurus of unified principles. These principles would act as a primary authority for the appellate body in scrutinizing the challenged awards and thereby determining whether the tribunal has violated any unified interpretation for a certain legal point.;Appeal presumes review and review presumes measurement against existing standards. Therefore, the main purpose of appeal is to evaluate the challenged award in the light of previous norms and principles. This evaluation shall be futile if there are no previous set of decisions which are interrelated exactly because of their binding or persuasive nature.;Promoting transparency is very important for the proper implementation of the UIB's mission of restoring consistency to the ICSID system Therefore; the UIB shall employ a transparency mechanism to publish the awards without impairing the confidentiality of the parties or the protected information.;Enhancing transparency and admitting the precedential effect of the UIB's decisions and unified principles will enhance the consistency of ICSID awards by securing consistent treatment for similarly situated parties and enabling the hosts and foreign investors to properly estimate the extent of the their rights and obligations under the BITs and the resulting ICSID awards.;Lack of consolidation is one of the sources of inconsistency. It is very likely that tribunals dealing with related cases may decide the case in a different way. The main advantage of consolidation is the avoidance of inconsistent awards.;A consolidation tribunal shall be specifically constituted to determine whether to consolidate the parallel proceedings or not based on some conditions such as the unity of the state measure being challenged, whether consolidation will promote fair and efficient dispute resolution, whether the consolidation has been requested by one of the parties, and whether the parties to the consolidation proceedings have been properly heard. (Abstract shortened by UMI.).