Research On Establishing The Appellate Body Of International Investment Dispute Settlement

International investment arbitration has the dual characteristics of high efficiency and authority.Arbitral awards need to be implemented in accordance with relevant laws.The parties can't break the promise.Moreover,arbitration has “quasi-judicial”.The political color of the procedure is weak and more convincing,so it is highly favored by the parties to international investment disputes.According to the ICSID official website,as of September 2018,ICSID has received 701 cases,including 443 concluded cases and 258 pending cases,and the number of cases continued to increase,and more and more pressure.With the development of the international investment arbitration body,it has exposed many problems.From a macro perspective,the fragmentation of international investment law is becoming more and more serious.From a micro perspective,the reform of international investment arbitration is getting louder and louder.By summarizing the views of scholars,the problems existing in the international investment arbitration body are mainly divided into two categories,tone is for the arbitrator itself,for example,the arbitrator lacks the right to interpret the treaty,and the arbitrator's impartiality is denied.The other is for the operation procedures of the international investment arbitration body,which is unbalanced protection of interests of investors and host countries,the arbitral award lacks uniformity and accuracy andlack of remedies.As a result,the arbitral awards cannot be implemented timely and effectively.What is more,several member states have withdrawn the international investment arbitration institutions,which have caused tremendous impact on the international investment arbitration body.After that,many international organizations,countries and scholars are beginning to find ways to solve the problems.At present,international organizations and countries have made great efforts in the transparency of the arbitral proceedings,and have achieved positive results,such as the practice of the Friend of the Court proposed in the ICSID Arbitration Rules(2006),and “Article28” in the investment agreement between China and Canada,they are the efforts in improving the quality investment arbitration.But it is unsure whether these procedural improvements can really improve the consistency and accuracy of arbitral awards.Therefore,scholars continue to explore and research on the issue.Later,some scholars come up with some ideas on the introduction of an appeal body in the field of international investment arbitration and make great influence.There are different views on the establishment,operation and enforcement of the appeal body.The first is the establishment of an appeal body.There are two main points of view.One is to establish a permanent appeal body,and the other is to establish a temporary appeal body.The starting point of the two is to maintain the stability of the appeal body and respect the parties.Secondly,on the issue of how the appeal body operates,scholars have more to discuss with the WTO Appeal body Operation Procedures and the relevant regulations and practices in the operational procedures proposed in the EU-Vietnam FTA and CETA;The issue of how the appeal body decides to implement this issue is similar to the issue of the current arbitral award.Whether the ruling of the appeal body can apply to the existing ICSID arbitral award recognition and enforcement system and how it applies,and how the appeal ruling of the ICSID arbitral award recognition and enforcement system cannot be applied.At this point,whether the New York Convention can be applied to the recognition and enforcement of the appeal body ruling.The most important condition for the application of the New York Convention by the Appeals body is that it can be included in the scope of the ruling provided for in the Convention.Every coin has two sides.Opponentsbelieve that it is unnecessary and almost impossible to establish an appeal body in the field of international investment arbitration,because the current international investment arbitration body is developing well,although there are some defects in it,we can improve it from many aspects.In addition,the actual operation of establishing an appeal body is very difficult.There is no mature idea and unified cognition about how to set up the appeal body in the academic and practical circles,so the appeal body can't be set up at all.In this article,the author will mainly discuss the establishment of the international investment arbitration appeal body from four aspects,including the background of the establishment of the appeal body,the rationality of the appeal body,the mode of the appeal body,and the operation of the appeal body.Firstly,in terms of the background of establishing the appeal body,there are many problems existing in the current international investment arbitration body.The author chooses the unbalanced protection of the interests of the investor host country and the lack of accuracy and predictability of the arbitration award.Even if the current body has so many problems,it still lacks effective relief measures.The ICSID revocation body also failed to work.Secondly,in terms of rationality,in theory,the establishment of the appeal mechanism has its legal basis;in the practical,ICISD,the EU and some countries have also tried to implement reforms in this area through legislation.Then,there are two modes for the selection of the appeal body.One is to establish a permanent appeal body based on the existing ICSID.However,the EU has also proposed the establishment of an appeal court in CETA,which is a new approach independent of ICSID.The other is the establishment of a temporary appeal body,provided that the appeal body can be activated,but whether and how the final implementation of the appeal body should respect the will of the parties to the treaty and the provisions of the treaty concluded by both parties.Finally,the operation of the appeal body is expounded from the aspects of the selection and appointment of the members of the appellate body and the trial procedure of the case.The selection and appointment of members of the appellate body must satisfy both substantive and procedural conditions.In terms of substantive conditions,members of the appellatebody should have profound professional and moral qualities.In terms of procedural conditions,there is a nominating-interviewing-deciding.In the trial procedure of the case,it must go through the stage of admission-cognizance and adjudication.Based on the existing academic views and practical practices,the author will propose his own ideas on the issues to be discussed in each part of the writing.During the writing,the author hopes to have a clear and comprehensive understanding of the issues to be studied.