• Journal of Arbitration Studies
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• v.29 no.4
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• pp.187-210
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• 2019

This article examines the necessity for the introduction of an ICSID Appellate System. In comparison with the WTO appellate system, the ICSID ad hoc Committee has a very limited mandate. An annulment inquiry under the ICSID arbitration system barely focuses on whether the arbitral decision resulted from a justifiable process. As long as there is procedural legitimacy, the resulting awards remain unaffected under the annulment procedure, irrespective of mistakes of fact or law. In contrast, in the WTO DSS the AB substantively reviews panel rulings and suggestions that are founded on any deficiency of objectivity or error in the interpretation of a particular WTO provision. This defect intrinsic in the annulment procedure could cause injustice to a party earnestly interested in correcting recognized misapplication of law by ICSID tribunals. Accordingly, the establishment of an appellate system would result in a more substantive and procedural review of awards. The creation of such an ICSID appellate system would ensure thorough scrutiny of the decisions of the tribunal of first instance, leading to better reasoned outcomes. This could lead to a crystallization of predictability in investment relations. The end result would be that fairness, clarity, reliability, and legality in the ICSID adjudicative process would be unassailable, to the advantage of all the contracting parties.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.3-29
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• 2020

The WTO's dispute settlement system has played a significant role in settling trade disputes between countries, and its function and role have been expanded by handling about 596 disputes since its establishment in 1995. This shows that the WTO's dispute settlement system is gaining enormous trust among member countries that it recognizes as a fair, effective, and efficient system for resolving trade disputes. The U.S. remains uncooperative in the WTO dispute settlement system, citing disregard for the 90-day deadline for appeals, continued service by persons who are no longer A.B. members, issuing advisory opinions on issues not necessary to resolve a dispute, A.B. review of facts, and review of a member's domestic law de novo. The A.B. claims its reports are entitled to be treated as a precedent. These problems should be gradually improved through various discussions and agreements by establishing a multilateral forum for resolving disputes and gradually ending the problems through reform of the DSU.

• International Commerce and Information Review
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• v.19 no.1
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• pp.155-187
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• 2017

In the US, the Sections 301 of the Trade Act of 1974 are still being used to resolve disputes. The U.S' such unilateral retaliations grounded on the Sections 301 of the Trade Act, in fact, violate the WTO agreements and hinder the development of international trade as the trade partner may assume it as a reprisal move impeding the fair settlement of disputes. Here, this study is going to examine the characteristics and functions of the WTO dispute settlement system briefly and compare the countermeasures recognized to be legitimate by the WTO with the U.S' unilateral retaliation. Also, this author will analyse the US-Japan Automobiles (DS6) and EC-Bananas III (DS27) as one of the typical cases resulted from the unilateral retaliation. According to the result, these cases do not conform to WTO-consistency, and it implies that it is absurd to accept the US' unilateral retaliation internationally. In conclusion, presently, it is a global trend to solidify protectionism, and to vitalize trade and resolve trade disputes efficiently, it is needed to prohibit the recourse to unilateral retaliations and also positively apply the WTO dispute settlement system(DSU) defining rules about how to strengthen the multilateral system.