The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements
The current crisis in investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) system is the subject of commentary by both practitioners and scholars in the field. This Article first reviews the current status of ICSID arbitration by specifically using the Argentinean cases as examples of the ongoing legitimacy concerns that many countries have about ICSID. This Article seeks to explain the current crisis using theories of judicial review to understand how the annulment committee process and decisions are contributing to this crisis. The judicial theory of error correction, when utilized to review the recent annulment committee decisions, illuminates the debate in the appropriate use of the appellate function for ICSID. Then the Article will use dispute system design theories of legitimacy and sustainability to suggest potential avenues of moving forward. Through the lens of stakeholder participation, the Article examines concerns with the law applied by the arbitral tribunals and the standards of review used by the annulment committees. Finally, the Article uses dispute system design theory to examine proposals for changing ICSID—both the law and the process—and argues that any changes must be stakeholder-driven.
Andrea K. Schneider, Error Correction and Dispute System Design in Investor-State Arbitration, 5 Y.B. Arb. & Mediation 194 (2013).