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Delocalisation in international commercial arbitration: a theory in need of practical applicationIn 1958, the New York Convention was introduced by 24 signatories, superseding the previous international instruments and ushering in a new era of transnational commercial arbitration. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also referred to as the New York Convention (NYC), was created to encourage the settlement of international disputes through arbitration. It has been characterised as “one of the boldest attempts to enhance … arbitration and to achieve unification in state practice …”. This is buttressed by the fact that courts are perceived as having a pre-bias against hearing arbitration appeals. Ultimately, this is rooted in the objectives of the NYC and the courts’ respect for the contractual autonomy of the parties; thus courts exercise their discretion when faced with arbitral appeal. Party autonomy represents the autonomous will of the parties to a contract. However, the mere fact that parties contracted to go to arbitration can then appeal their award in national courts, demonstrates the extent to which arbitration is undeveloped as an independent, alternative dispute resolution mechanism. It is not surprising, therefore, that scholars have voiced concern over continued judicial intervention in arbitration under the umbrella of delocalisation theory. Thus, delocalisation supports the premise that arbitration should be wholly independent. However, without an appeal arbitral body, it would be difficult to give practical significance to this theoretical view. This raises the question of whether a diluted version of delocalisation, where court intervention is limited by the presence of an arbitral appeal body, is possible, and, if so, which form should it take? As a solution, we consider the possibility of creating an international appeal body modelled upon the international Centre for Settlement of Investment Disputes (ICSID) Additional Facility, which provides for appeal in international investment disputes. Against that background, the aim of this article is twofold. First, it will explore the development of the delocalisation theory with particular emphasis on the theoretical debate for and against continued court intervention. The aim is to find justification for delocalisation by limiting court intervention in arbitration. Secondly, it will explore the scope for reform through the institution of an appeal body. The aim is to consider implementing an international commercial arbitral body to complement ICSID Additional Facility. Last but not least, a circumspect conclusion will be reached in regards to the direction of future legal development in this area.
TTIP negotiations in the shadow of human rights and democratic valuesIn early 2013, based on the recommendations of the EU–US, High Level Working Group on Jobs and Growth, the presidents of the European Council, the European Commission (the Commission) and the US announced the initiation of negotiations on a major free trade agreement between the two blocs, termed the Transatlantic Trade and Investment Partnership (TTIP). The TTIP initiative promises significant economic development for the Transatlantic Free Trade Area (TFTA) and provision for investor–state dispute settlement (ISDS), which is mainly associated with international arbitration under the International Centre for the Settlement of Investment Disputes (ICSID). Respondents to a public consultation on TTIP, representing a wide spectrum of EU civil society organisations, expressed concern over ISDS’s impact on EU Member States’ right to regulate in the public’s interest, if investors are armed with the right to launch international proceedings to challenge national policy. Similar concerns were expressed over the secretive nature of the negotiations, with many critics pointing to democratic values and human rights as the bedrock of a civilised society. These concerns cast a shadow of uncertainty over the intended and unintended consequences of TTIP and, in particular, its encroachment on democratic values. In response to the rejection of ISDS, the Commission released proposals for an international investment court in August 2015. We argue that these reforms are merely cosmetic and are unlikely to alleviate some of the concerns raised over ISDS and, in particular, its intrusion on national public policy. The aim of this article is threefold. First and foremost, it examines the nature of the TTIP proposals with particular emphasis on the international investment court. The aim is to highlight how the secretive negotiations have undermined the most basic notions of democracy such as transparency and sovereignty. Secondly, it highlights areas where the fundamental principles of human rights have been undermined by the TTIP negotiations. Thirdly, the proposal for an international investment court is critiqued, especially on the inclusion of broad fair and equitable treatment (FET) standards that are likely to promote the same unfettered rights as those found under ISDS. Ultimately, a circumspect conclusion that ties together the various strands of argument through the paper is reached.