<학위논문 소개>ICSID중재판정 취소제도 연구 (A Study on the Annulment System of ICSID Awards)

서지정보

· 발행기관 : 국제법평론회
· 수록지 정보 : 국제법평론 / 43호 / 181 ~ 198페이지
· 저자명 : 오현석

초록

One of the unique features of the ICSID arbitration is its autonomous and self- contained system. The ICSID Convention and arbitration rules contain all provisions necessary for the conduct of arbitral proceedings, including the remedies after awards have been rendered. The ICSID awards are binding on the disputing parties, may not be appealed. But, either disputing party may initiate an annulment proceeding by filing an application for annulment with the ICSID. Once an application for annulment is registered, the ICSID must appoint an ad hoc Committee of three persons to decide on the application. The authority of an ad hoc Committee is limited either to reject the application for annulment, or to annul the award or a part thereof on the basis of the grounds enumerated in Article 52 of the ICSID Convention. The effect of annulment is that the award or a part thereof becomes a nullity, meaning that the binding force of the annulled portion of the award is terminated.
The ICSID annulment system has performed the roles it was originally intended to play over the past several decades, but it also true that the system has posed a lot of problems as well. In particular, many criticise that the recent annulment decisions have gone too far as to convert the current system into full fledged, de facto appellate proceedings. Another concerns with the current ICSID system relate, among others, to a perceived deficit of legitimacy and contradictions between annulment decisions. Notably, ICSID annulment cases demonstrate that there are significant inconsistencies concerning key issues of international investment law interpretation. The substantial costs and time of procedures have also raised concerns about the efficiency of annulment system.
The criticism and challenges posed by current ICSID annulment regime create momentum for its reform. Many alternative solutions for the current system have been proposed. The most frequently suggested option is an appellate mechanism which would promote coherence in investment law and enhance its predictability. Another option is to replace ad hoc annulment committees with a standing international court. This new system is proposed by EU in Transatlantic Trade and Investment Partnership (TTIP) and is highly expected to be established soon. Besides the foregoing methods, various proposals have been come up with for the reform of ICSID annulment regime such as: i) an expansion of Article 52 to eventually turing annulment into a form of appeal; ii) the formal or informal consolidating cases; iii) the possibility of reference procedures aimed at clarifying controversial point of law.
However, this solution would also be the most difficult to implement as it would require a complete overhaul of the current regime through a coordinated action by a large number of contracting States. Furthermore, as many states have recently denounced or threatened to withdraw from the ICSID Convention, any attempt to reform the annulment provisions at this juncture would lead to demands for breaking the entire ICSID system.

영어초록

One of the unique features of the ICSID arbitration is its autonomous and self- contained system. The ICSID Convention and arbitration rules contain all provisions necessary for the conduct of arbitral proceedings, including the remedies after awards have been rendered. The ICSID awards are binding on the disputing parties, may not be appealed. But, either disputing party may initiate an annulment proceeding by filing an application for annulment with the ICSID. Once an application for annulment is registered, the ICSID must appoint an ad hoc Committee of three persons to decide on the application. The authority of an ad hoc Committee is limited either to reject the application for annulment, or to annul the award or a part thereof on the basis of the grounds enumerated in Article 52 of the ICSID Convention. The effect of annulment is that the award or a part thereof becomes a nullity, meaning that the binding force of the annulled portion of the award is terminated.
The ICSID annulment system has performed the roles it was originally intended to play over the past several decades, but it also true that the system has posed a lot of problems as well. In particular, many criticise that the recent annulment decisions have gone too far as to convert the current system into full fledged, de facto appellate proceedings. Another concerns with the current ICSID system relate, among others, to a perceived deficit of legitimacy and contradictions between annulment decisions. Notably, ICSID annulment cases demonstrate that there are significant inconsistencies concerning key issues of international investment law interpretation. The substantial costs and time of procedures have also raised concerns about the efficiency of annulment system.
The criticism and challenges posed by current ICSID annulment regime create momentum for its reform. Many alternative solutions for the current system have been proposed. The most frequently suggested option is an appellate mechanism which would promote coherence in investment law and enhance its predictability. Another option is to replace ad hoc annulment committees with a standing international court. This new system is proposed by EU in Transatlantic Trade and Investment Partnership (TTIP) and is highly expected to be established soon. Besides the foregoing methods, various proposals have been come up with for the reform of ICSID annulment regime such as: i) an expansion of Article 52 to eventually turing annulment into a form of appeal; ii) the formal or informal consolidating cases; iii) the possibility of reference procedures aimed at clarifying controversial point of law.
However, this solution would also be the most difficult to implement as it would require a complete overhaul of the current regime through a coordinated action by a large number of contracting States. Furthermore, as many states have recently denounced or threatened to withdraw from the ICSID Convention, any attempt to reform the annulment provisions at this juncture would lead to demands for breaking the entire ICSID system.

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