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Features of the Proposed International Investment Appellate Mechanism And Court System by Susan Kimani*

3 May 2021 7:02 AM | Anonymous member (Administrator)

Paper presented at the AfAA 2nd Annual International Arbitration Conference, 15th - 16th April 2021.

Discussions on possible reforms of the investor-state dispute settlement system are in progress under the auspices of UNCITRAL Working Group III. Two potential reforms under consideration are the creation of a permanent multilateral investment court or appellate mechanism. This paper examines some of the features of the appellate mechanism and court that are being discussed, based on the reports of the Working Group and submissions by states’ delegations to UNCITRAL. For instance, it examines the standard, scope of review and effects of an appeal at the appellate mechanism, and the potential means of appointment of adjudicators to the multilateral investment court. The paper concludes by enumerating some of the ways through which African governments can increasingly contribute to the reform debate.

1.           Introduction

This paper was prepared for presentation at the 2nd annual international arbitration conference of the African Arbitration Association (AfAA). The paper considers two of the proposed reforms of the investor-state disputes settlement (ISDS) system, that is, (i) establishment of a stand-alone review or appellate mechanism and (ii) establishment of a standing multilateral first instance and appellate investment court (MIC). The paper is based on the ongoing discussions of the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WG).[1] It addresses (a) some features of the proposed appellate/review mechanism and MIC; (b) some perceived advantages and disadvantages of the mechanisms according to the views of states’ delegations; and (c) how African governments can contribute to the ISDS reform debate.

The issues highlighted in this paper represent some of the options currently being considered by the WG and they remain open to debate within the WG itself. The current work plan of the WG foresees completion of the discussions by 2025, thus, it is too early to tell which form the reforms will eventually take.

The author notes that the Permanent Court of Arbitration (PCA), with which she is affiliated, is very active in administering ISDS. Since the WG started its work, the PCA has been commenting on the work of the WG as an observer. The PCA itself does not take any view on the desirability or lack thereof of these reforms. The PCA consists of a diverse group of 122 Contracting Parties,[2] some of which are for or against some of the reforms. The PCA remains available to support states and parties in ISDS, regardless of the outcome of the reform debate.

2.          Proposed Mechanisms

At its 38th to 40th sessions, the WG considered various ISDS reform options, based on proposals from various governments, including African countries such as Morocco[3] and South Africa.[4] The WG considered, inter alia, the proposed (i) stand-alone review or appellate mechanism and (ii) MIC.

2.1.   A Stand-Alone Review or Appellate Mechanism

Some delegations propose that a stand-alone review or appellate mechanism could be set up as a separate appellate body – with the current ISDS regime maintaining most of its basic features and being complemented with a standing or at least semi-permanent appellate body. Some view that it could also function as a second instance of a MIC if one were to be set up.[5] Further, some states hold the view that the appellate body should be a single, multilateral standing body affiliated with a United Nations body.[6]

The appellate mechanism would be tasked with substantive review of decisions. It could also implement a system of binding precedent – there are views for and against this.[7]

The key features of the appellate mechanism currently being considered include:

2.1.1        Scope and standard of review

(a)   Errors of law and “manifest” errors of facts: It is viewed that there should be some limit to the grounds of appeal so as to make the appellate mechanism relatively streamlined and faster, and the caseload easier to manage. The suggestion by some states is thus to limit the grounds to errors in the interpretation or application of law and on findings of relevant facts only[8] or “manifest” errors of facts (some states have however expressed the view that manifest errors of facts should not be reviewable). The Note by the UNCITRAL Secretariat for the 40th WG session contains suggested draft provisions on what would constitute an error of law or “manifest” error of fact.[9] With regard to an error of law, it could be an error that is “material and prejudicial” or any “errors in the application or interpretation of applicable law” (common standards in BITs). At the WG’s most recent session, the 40th session, views were leaning more towards the latter.[10] With regard to errors of facts, options exist between “determinations of fact that are clearly erroneous” and “manifest errors in the appreciation of facts”. The WG, during its 40th session, leaned more towards the latter, noting that it is a higher standard that ensures appropriate deference to the first-tier tribunal.[11]

Some pending questions include whether reference to “domestic law” falls in the category of legal or factual error; whether an error in the assessment of damages would constitute an error of fact, and whether there are issues that should be subject to de novo review at the appellate level.[12]

(b)   Treatment of the existing grounds for review: Some delegations propose that the grounds for annulment under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and grounds for refusal of recognition and enforcement under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) should be subsumed under the grounds for appeal.[13] They note that since the grounds for appeal could be said to encompass the narrower grounds for annulment and setting aside, the existence of an appeal could be seen as making the current annulment or setting aside procedures redundant. Further, keeping the annulment or set-aside remedies might de facto create a three-tier dispute settlement system, which might run contrary to the objectives of finality and efficiency (including the time and cost-efficiency).[14] A key question raised by the WG at the 40th session was the functionality of the approach of eliminating the current grounds for review, that is, whether domestic courts would be willing to defer their authority to an international body.[15]

2.1.2        Appealable Decisions

(a)   Decisions on merit and procedure: Some delegations propose that only final decisions on both merits and procedural matters should be subject to appeal because it is preferable that an appellate tribunal be presented with the full record of the case before rendering its decision.[16]

(b)  Interim measures and challenges: Divergent views have been expressed on whether decisions on interim measures would be subject to appeal. Some delegations propose that decisions on interim measures should not be subject to appeal in light of the negative impact on time and cost that this would have on the cost and duration of the proceedings. They are also often specific to a case, temporary in nature and could be reversed by the tribunal ordering them.[17]

(c) Decisions on jurisdiction: In this regard, the question raised by some delegations is whether decisions on jurisdiction should be included in the scope of appeal, and whether, if included, the appeal should be made while the proceedings are ongoing or be stayed. The time at which an appeal on jurisdiction could be made would have an impact on the efficiency of the appellate mechanism. On the one hand, it might be preferable that an appellate tribunal be presented with the full record of the case before rendering its decision. On this reasoning, an appeal should be made possible only after the final decision on the merits. On the other hand, appeal of a decision on jurisdiction at an earlier stage of the proceedings might save cost and time.[18] There are strong views that a challenge to a decision on jurisdiction should be made during the proceedings and not at the stage of the final decision, but views are divergent on whether the first-tier tribunal should stay or continue its proceedings while a decision on jurisdiction is pending in the appellate mechanism. Further, there is still a question whether the appellate mechanism could rule on the issue of jurisdiction when the final award on the merits is the subject of appeal, and whether the appellate body could overturn a decision by the first-tier tribunal stating that it did not have the competence to rule on the case.[19]

(d)   Decisions arising out of investment treaties: There are diverging views on whether the appellate process should be limited to decisions rendered from treaty based ISDS disputes or whether the scope should include appeal of decisions arising from contracts or national investment laws.[20]

2.1.3        Effects of an appeal

(a)   Suspension of the first-tier decision: Some delegations view that an appeal should temporarily suspend the effect of the first-tier decision (pending a decision by the appellate tribunal) and that such a decision should not be enforceable, nor subject to a set-aside procedure.[21]

(b)   Affirm, reverse or modify decisions: With regard to the powers of an appellate tribunal, some delegations propose that it should be able to affirm, reverse or modify the decision of the first-tier tribunal and to render a final decision based on the issues before it.[22]

(c)   Remand authority: There are differing views regarding remand authority due to concerns about cost and duration of proceedings. Some delegations propose that there may be remand authority, in limited circumstances, where the appellate tribunal is not able to complete the legal analysis based on the facts available before it.[23] Concerns remain as to how to re-establish the first-tier tribunal and in regard to the appertaining additional costs.[24]

(d)   Binding nature of appellate decision: Some delegations express the view that a decision rendered by an appellate tribunal should bind only the disputing parties, and in case of remand, the first-tier tribunal. A diverging view is that the appellate body decision should have a broader effect to ensure consistency, particularly in cases where the tribunals would be interpreting the same provisions of an investment treaty or similar text. Decisions rendered through a permanent appellate mechanism, even though they might not be binding on other ad hoc first-tier tribunals, could have a persuasive influence on those tribunals when interpreting identical or similar treaty provisions. At the same time, it is noted that the interpretative impact that a decision of an appellate tribunal could have on treaties with identical or similar language (in particular, when the relevant state party was not a party to the appellate mechanism) would need to be further examined to take into account both how to manage the interpretative impact for future disputes and in light of existing interpretation of such provisions, among other implications.[25]

2.1.4        Enforcement

(a)   Enforcement in participating states: Some delegations take the view that the possible application of the existing enforcement mechanisms to decisions rendered by a permanent body would depend on how such a body would be set up, in particular the extent to which its decisions could qualify as arbitral awards. In states participating in the MIC or appellate mechanism, an internal enforcement mechanism could be included in the founding convention, and hence questions as to the qualification of a decision as an “international arbitration award” or “ICSID award” would not arise. According to some delegations, an enforcement model which preserves the role of domestic courts possibly based on the NYC would be preferable to the ICSID model because it would avoid the situation where a domestic court would be required to enforce decisions that were contrary to the public policy of the state where enforcement was sought.[26]

(b)  Enforcement under the NYC: Some delegations view that in non-participating states, the NYC could provide sufficient flexibility to apply to decisions rendered by a permanent body. Article 1(2) of the NYC refers to awards “made by permanent arbitral bodies to which the parties have submitted”. A question arises as to whether a permanent body could qualify as a “permanent arbitral body” under that Article.[27]

(c)  Enforcement under the ICSID Convention: Article 53 of the ICSID Convention provides that ICSID awards “shall not be subject to any appeal or to any other remedy except those provided for in the Convention”. Given that the amendment of the Convention would be difficult to implement as it would require acceptance of all existing parties, according to some delegations, a possible avenue to explore would be an inter se modification of the ICSID Convention among the states establishing an appellate mechanism. This would be implemented following the procedure of Article 41 of the Vienna Convention on the Law of Treaties, whereby contracting parties may modify a treaty “as between themselves alone”.[28]

2.2.   Multilateral Investment Court

According a delegation, the MIC (whose desirability and feasibility is yet to be decided upon by the WG) would have full-time adjudicators and two levels of adjudication.[29] The proposal to establish a MIC is based on the view that the concerns identified by the WG are intertwined and systemic, and that addressing specific concerns in a piecemeal approach would leave some concerns unaddressed.[30] It has been posited that the main purpose of the MIC would be to address concerns regarding inconsistency and incorrectness of decisions made by ISDS tribunals, as well as concerns regarding ethical requirements and appointment mechanisms for arbitrators and decision makers.[31] The stated rationale, according to a Note by the UNCITRAL Secretariat, is that by sitting permanently and deciding cases over time, judges could deliver more consistent decisions.[32]

It has been suggested by some delegations that the MIC could have a two-tier system, with a first instance layer, followed by an appeal or review on limited grounds by a different body. The system could be an add-on to the current ISDS regime or be established independently from any existing mechanism or institution.[33]

The key features of the MIC would be:

(a)   Two levels of adjudication: There would be a first instance tribunal to hear disputes, as currently done by arbitral tribunals. An appellate tribunal would hear appeals from the tribunal of first instance.[34]

(b)   Adjudicators and appointment: Some delegations proposed that the adjudicators be employed full-time, with no other activities. The number of adjudicators would be based on the projections of the workload of the MIC. They would be paid salaries comparable to those paid to adjudicators in other international courts. Independence from governments would be ensured through a long-term non-renewable term of office, combined with a transparent appointment process.[35] The main concern of some delegations is that the role of investors in the appointment of adjudicators would be diminished, if not eliminated, which would pose serious concerns about the legitimacy of the system.[36]

(c)    Nomination of candidates: Different options for nominating candidates have been suggested by delegations, including: (i) by participating states; (ii) by an independent entity established within the permanent body; (iii) by individuals themselves; or (iv) a combination thereof.[37]

(d)   Selection and appointment process: The proposed options for selection and appointment include the following: (i) direct appointment by each state; (ii) appointment by a vote of the contracting states; or (iii) appointment by an independent commission.[38]

(e)    Neutrality: It is proposed by several delegations that any process of establishing a MIC should be fair and neutral, and that the court should have a detailed and transparent set of rules of procedure.[39]

(f)    Structure and financing: Some states have so far expressed a clear preference for a system where all costs are borne by contracting parties of the MIC statute, while other states lean towards user-pays principle.[40] Cost concerns surround the remuneration of the adjudicators; financing the registrar and secretariat; case administration costs and operating costs.[41]

3.   Perceived advantages and drawbacks of the proposed mechanisms

3.1.   Perceived Advantages

(a)   A delegation has expressed the view that the appellate mechanism would contribute to improving the consistency, predictability and legal correctness of investment awards.[42]

(b)  According to another delegation, an appellate mechanism could enhance the legitimacy of ISDS and act as an important factor in promoting application of the rule of law to the settlement of disputes between investors and states.[43]

(c)   According to a delegation, if the establishment of the court is done in a fair and neutral manner, the MIC has the potential to create an independent and legitimate system of ISDS.[44]

3.2.   Perceived Drawbacks

(a)   According to some delegations’ views, the appeal mechanism may create lengthier and costlier proceedings.[45]

(b)   Some delegations view that since states would be free to choose whether to adopt the appeal option, an appellate mechanism would add to the existing lack of coherence or consistency.[46]

(c)     With regard to the appeal mechanism, a concern has been raised that if appeal is an option, it could soon become the rule. States and investors who have lost a case may not be willing to forego a chance to file an appeal, be it only for reasons of internal accountability.[47]

(d)   It has also been suggested that permanent mechanisms would lead to loss of flexibility, expert decision-making and that the confidence-inducing benefits of party-appointment of arbitrators would be lost.[48]

4.        Participation by African countries

Numerous African states are taking part in the WG sessions. During the last session (40th session) held in February 2021, 11 out of the 54 states attending the session were African states.  Additionally, six African countries participated as observer states. Several African states have also consistently submitted comments on the ISDS reform process.[49]

Governments and specialists in African countries may continue to take part in the ISDS reform debate through:

(a)  Participating actively in the WG sessions, either as members of UNCITRAL through the existing representation system or as observers to the WG (who routinely contribute to the debates and whose remarks form part of the official record).

(b)   Submitting comments, position papers and proposals to the UNCITRAL Secretariat on ISDS reforms.

(c)   Providing feedback and direction to and through the African Union Office of Legal Counsel.

(d)   Ensuring participation in international conferences and in international organisations such as United Nations Conference on Trade and Development. 

(e)  Participating at regional meetings, such as the third intersessional regional meeting held in Conakry in September 2019 to familiarize representatives of African states with the WG’s current areas of work.

*      Legal Counsel, Permanent Court of Arbitration.

[1]   Working Group III: Investor-State Dispute Settlement Reform, available at:  https://uncitral.un.org/en/working_groups/3/investor-state.

[2]      Permanent Court of Arbitration website, available at: https://pca-cpa.org/en/about/introduction/contracting-parties/.

[3]      A/CN.9/WG.III/WP.161, Submission from the Government of Morocco, available at:  https://undocs.org/A/CN.9/WG.III/WP.161.

[4]   A/CN.9/WG.III/WP.176, Submission from the Government of South Africa, available at: https://undocs.org/A/CN.9/WG.III/WP.176.

[5]  A/CN.9/WG.III/WP.149, Possible reform of investor-State dispute settlement (ISDS) – Note by the Secretariat, para. 42, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V18/064/96/PDF/V1806496.pdf?OpenElement.

[6]      A/CN.9/WG.III/WP.195, Submission from the Government of Morocco, p. 3, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V20/011/62/PDF/V2001162.pdf?OpenElement.

[7]    A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, para 60, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf; Possible reform of investor-State dispute settlement (ISDS), Note by the Secretariat, para. 40, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V18/064/96/PDF/V1806496.pdf?OpenElement.

[8]   A/CN.9/1004/Add.1, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session, paras 26-28, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf?OpenElement.

[9]   A/CN.9/WG.III/WP.202, Possible reform of investor-State dispute settlement (ISDS): Appellate mechanism and enforcement issues – Note by the Secretariat, para 59, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V20/065/39/PDF/V2006539.pdf?OpenElement.

[10]     A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, para 66, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[11]     Ibid. para. 67.

[12]     Ibid. paras 68-75.

[13]     Ibid. para. 30.

[14]  A/CN.9/WG.III/WP.202, Possible reform of investor-State dispute settlement (ISDS): Appellate mechanism and enforcement issues – Note by the Secretariat, para. 8, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V20/065/39/PDF/V2006539.pdf?OpenElement.

[15]   A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, para 77, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[16]   A/CN.9/1004/Add.1, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session, paras 33-34, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf?OpenElement; A/CN.9/WG.III/WP.195, Submission from the Government of Morocco, p. 4, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V20/011/62/PDF/V2001162.pdf?OpenElement.

[17]     Ibid. A/CN.9/1004/Add.1, para. 34; A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, para 87, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[18]   A/CN.9/WG.III/WP.202, Possible reform of investor-State dispute settlement (ISDS): Appellate mechanism and enforcement issues – Note by the Secretariat, para 21, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V20/065/39/PDF/V2006539.pdf?OpenElement

[19]   Ibid. para. 34; A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, para. 87, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[20]     Ibid. A/CN.9/1050, para. 87.

[21]     Ibid. para. 95.

[22]  A/CN.9/1004/Add.1, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session, para. 40, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf?OpenElement; A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, paras 97-100, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[23]     Ibid. A/CN.9/1004/Add.1, para. 41; Ibid. A/CN.9/1050, paras 101-102.

[24]     Ibid. A/CN.9/1004/Add.1, para. 42.

[25]     Ibid. paras 43-45.

[26]  A/CN.9/WG.III/WP.202, Possible reform of investor-State dispute settlement (ISDS): Appellate mechanism and enforcement issues – Note by the Secretariat, para. 67, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V20/065/39/PDF/V2006539.pdf?OpenElement.

[27]     Ibid. para. 70.

[28]  A/CN.9/1004/Add.1, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session, para. 78, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf?OpenElement.

[29]     A/CN.9/WG.III/WP.159/Add.1, Submission from the European Union and its Member States, para. 13, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/004/19/PDF/V1900419.pdf?OpenElement.

[30]   A/CN.9/WG.III/WP.185, Possible reform of investor-State dispute settlement (ISDS): Appellate and multilateral court mechanisms – Note by the Secretariat, para. 51, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/113/57/PDF/V1911357.pdf?OpenElement.

[31]     A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, para. 18, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[32]   A/CN.9/WG.III/WP.149, Possible reform of investor-State dispute settlement (ISDS) – Note by the Secretariat, para. 44, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V18/064/96/PDF/V1806496.pdf?OpenElement.

[33]   A/CN.9/WG.III/WP.185, Possible reform of investor-State dispute settlement (ISDS): Appellate and multilateral court mechanisms – Note by the Secretariat, paras 62-64, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/113/57/PDF/V1911357.pdf?OpenElement.

[34]    A/CN.9/WG.III/WP.159/Add.1, Submission from the European Union and its Member States, para. 14, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/004/19/PDF/V1900419.pdf?OpenElement.

[35]  A/CN.9/WG.III/WP.185, Possible reform of investor-State dispute settlement (ISDS): Appellate and multilateral court mechanisms – Note by the Secretariat, para. 55, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/113/57/PDF/V1911357.pdf?OpenElement.

[36]   A/CN.9/1050, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its fortieth session, paras 18-21, available at: https://uncitral.un.org/sites/uncitral.un.org/files/report_40th_wg_iii_17_march.pdf.

[37]     Ibid. para. 30.

[38]     Ibid. para. 32.

[39]   A/CN.9/WG.III/WP.176, Submission from the Government of South Africa, para. 96, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/072/51/PDF/V1907251.pdf?OpenElement.

[40]  Similar views have been expressed in regard to the appellate mechanism.

[41]  A/CN.9/1004/Add.1, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session, para. 84, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf?OpenElement

[42]    A/CN.9/WG.III/WP.161, Submission from the Government of Morocco, para. 34, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/012/95/PDF/V1901295.pdf?OpenElement ; A/CN.9/WG.III/WP.185, Possible reform of investor-State dispute settlement (ISDS): Appellate and multilateral court mechanisms – Note by the Secretariat, para. 7, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/113/57/PDF/V1911357.pdf?OpenElement.

[43]     Ibid., A/CN.9/WG.III/WP.185, para. 8.

[44]   A/CN.9/WG.III/WP.176, Comments from the Government of South Africa, para. 78, available at: https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/072/51/PDF/V1907251.pdf?OpenElement.

[45]  A/CN.9/WG.III/WP.185, Possible reform of investor-State dispute settlement (ISDS): Appellate and multilateral court mechanisms – Note by the Secretariat, para. 9, available at, https://documents-dds-ny.un.org/doc/UNDOC/LTD/V19/113/57/PDF/V1911357.pdf?OpenElement ; A/CN.9/1004/Add.1, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session, para. 22, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf?OpenElement.

[46]     Ibid. A/CN.9/1004/Add.1, para. 21.

[47]    Gabrielle Kaufmann-Kohler and Michele Potestà, ‘Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism?’, para. 32 (2016).

[48]     Ibid. para. 31 (2016).

[49]   Ahead of the 39th session held in October 2020, the following African governments submitted their comments on the reforms: Morocco, South Africa, Mali, Guinea, and Burkina Faso.



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