The WTO Appellate Body: A Model for an ICSID Appeals Facility?

Abstract

Discussions of a possible appeals facility for ICSID often have the WTO Appellate Body as the model in mind. The question is whether this is the appropriate model. The Appellate Body’s success in ensuring “‘coherence and consistency’” in the development of WTO case law results in part because of certain attributes in its constitutional design (mandate, its size and its time-limited process) and partly because of the way it has acted in carrying out its functions. And, the Appellate Body has been assisted by the fact that it has had a steady load of cases that allow it to develop coherence and consistency in the law. The way it has dealt with procedural matters, developing an interpretative approach, developing an institutional sense in itself and panels, and seeking to balance trade with other social values, have been important considerations in its success as an appellate facility. While many of these matters might be replicated in an appeals facility for ICSID, the Appellate Body deals with a system of agreements that are interrelated and not with a series of separate agreements involving different parties. Furthermore, a key ingredient in the Appellate Body's success is that it hears appeals from a structured panel process that operates within a well-defined set of rules and practices and is supported by a secretariat that plays an important role in ensuring consistency in decision-making at the first instance level. In this regard, there is a significant difference between the WTO and the ICSID processes.