Research On The Construction Of ICSID Appeal Mechanism In The Crisis Background Of WTO Appellate Body

The arbitration procedure under the ICSID mechanism has always been an important platform for resolving international investment disputes,but its disadvantages have become increasingly apparent.Therefore,the ICSID Secretariat proposed the idea of building an appeal mechanism as early as 2004.However,due to various practical obstacles,this idea has not been realized.After many years,the disadvantages of the ICSID arbitration procedure have not been resolved.The disadvantages are mainly reflected in the lack of public legality of ICSID,the lack of consistency in awards,and the limitations of the award revocation system.There are many measures for the reform of ICSID,but the appeal mechanism is the most necessary reform plan,which is mainly reflected in the following points: First,there are limitations to the reform of ICSID itself,but the feasible solutions are often ineffective.The solution that can really solve the problem is not feasible;the second is that the dual value of the appeal mechanism can amend the ICSID deficiencies.The appeal mechanism retains the arbitration value under ICSID,ensuring fast,efficient and convenient dispute settlement,and its litigation Traits can safeguard the interests of the host country,thereby remedying the disadvantages of ICSID over protecting investors' interests.The feasibility and necessity of the construction of an appeal mechanism makes its construction imminent.However,in the context of the closure of the WTO Appellate Body,the possible problems of the appellate body must be taken seriously.The direct reason for the WTO's forced closure of the Appellate Body is that the United States has continuously blocked the selection of Appellate Body members,resulting in the existence of the Appellate Body.The United States obstructs the choice of the members of the Appellate Body because: First,the Appellate Body often delays the trial period;second,people who are no longer members of the Appellate Body still remain in the Appellate Body;The appellate body's review of the facts did not meet the requirements.Fifth,the appellate body believed that its report had the right to be regarded as a precedent.Regardless of whether the purpose of the United States is political or otherwise,these issues have indeed led to a crisis of legitimacy in the appellate body.Although all WTO members have submitted reform proposals,no progress has been made in the reform.The main reason is that there are fewer suggestions for systemic problems,and there is also a lack of guiding principles.The reform did not focus on the legal nature of the WTO.Therefore,ICSID should take this as a warning when constructing the appeal mechanism,and need to meet the following principles: the principle of party autonomy,the principle of unity of efficiency and fairness,the principle of precedence,and the principle of transparency.At the same time,there are also some institutional obstacles to the construction of the ICSID appeal mechanism,such as the unknown foundation of the treaty and the difficulty in reaching agreement,the lack of a unified substantive law,and the limitation of the final ruling.Therefore,these obstacles need to be overcome.The construction of an appeal mechanism requires amendments to the ICSID Convention.Article 41 of the Vienna Convention on the Law of Treaties may be invoked to amend the convention.The method agreed by all States parties may be abandoned and the second best option is signed by some States parties that have agreed to establish an appeal mechanism.The effect of the agreement and amendment of the Convention is only valid between the parties that have agreed to amend the Convention.This would avoid protracted consultations between all States parties to reach a consensus,and allow States parties interested in the appeals process to promote the establishment of an appeal mechanism.In addition,it is necessary to determine the principle of precedent in order to maintain the consistency of rulings and promote the formation of a precedent system through the establishment of a legal interpretation committee.Finally,as for the specific arrangements for the internal system of the ICSID appeal mechanism,it can be carried out from the aspects of the organization rules of the appeal mechanism trial organization,the establishment of the appeal mechanism case trial procedures,and the enforcement and supervision of the appeal mechanism judgment.However,designing specific procedures out of thin air is obviously meaningless.Therefore,the specific construction of this article is only a hypothesis,and a truly feasible construction needs to be discussed by the parties.