China-EU Law J

DOI 10.1007/s12689-013-0038-0

ARTICLE

Breaking the ice in the international commercial

arbitration: from the finality of arbitral award
to the arbitral appeal mechanism

Yilei Zhou

© China-EU School of Law 2013

Abstract The finality of an arbitral award was regarded as one of the main
advantages of arbitration. However, further to recent events that have arisen in
international investment arbitration, finality of arbitral award is not necessarily
advantageous and may not result in a fair and just arbitral award. Thus, in recent
years, international academic discourse has focused on how to reform arbitral
procedural rules, particularly with regard to establishing an arbitral appeal mech-
anism. This paper investigates the rules and legislation regulating international
investment arbitration legislation in principal countries, focusing particularly on the
relativity of finality of an arbitral award, and the prospect of introducing an
appellate mechanism. This paper will examine current practices relating to inter-
national investment arbitration, in order to ascertain the potential contributions that
an arbitral appeal mechanism may make in promoting international investment
arbitration. Recommendations will also be made with regard to the formation of an
arbitral appeal mechanism.

Keywords International investment arbitration · Finality of arbitral award ·

Arbitral appeal mechanism

1 Contradictions in finality of arbitral award

International investment arbitration is the process of resolving business disputes

among transnational parties through the use of one or more arbitrator as an
alternative to pursuing litigation through the court system.1 As the number of

1
Greenberg et al. 2011, p. 6.

Y. Zhou (&)
Cornell University Law School, Myron Taylor Hall, Ithaca, NY 14853, USA
e-mail: yz745@cornell.edu

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 Y. Zhou

international commercial disputes increases the frequency in the use of arbitration to

resolve such disputes also increases. The non-judicial nature of arbitration makes it
both attractive and effective. However, the finality of the arbitral award appears to
have been a problematic issue that has been encountered in a number of
international investment arbitrations.
The finality of an arbitral award, namely that an arbitration award is binding and
not subject to appeal on the merits, has generally been regarded as an advantage
over judicial settlement.2 A contradictory view is however emerging. It is opined by
some commentators that although finality is one of the main advantages of
international investment arbitration—due to the savings it brings in costs and time—
this may not outweigh the risk of having to live with a flawed or inconsistent award
on the same or very similar questions or facts. Where an erroneous arbitration award
is made damaging repercussions may follow particularly with respect to the
integrity of the arbitral process. Academic discourse regarding the introduction of
an appeal for international commercial disputes was initiated in the early 1990s.3
Compared with litigation, scholars have expressed different opinions towards the
advantages of arbitration. Some scholars believe that the advantages of arbitration
are that the process is voluntary, professional, flexible, confidential, efficient,
economic and independent.4 Meanwhile, some scholars have indicated that the most
beneficial characteristic of international investment arbitration is that it is
autonomous. Others consider the finality of award and expertise of arbitrator to
be the most beneficial features of arbitration.5
Generally speaking, the overall consensus amongst scholars regarding the
advantages of international investment arbitration are the independence of the
arbitral tribunal, fairness of arbitral awards, easy recognition and enforcement of the
award, high efficiency, low costs, professional process and confidentiality.
Comparatively speaking, advantages such as the neutrality of the place of
arbitration, impartiality of the arbitral tribunal, the resulting fairness, international
enforcement, professional process and confidentiality are uncontested. However, the
finality of arbitral award and the resulting efficiency and economic are considered to
be conditional and relative, which could affect the accuracy and impartiality of the
arbitral awards.
It is only when one of the following conditions has been satisfied that the finality
of an arbitral award becomes an absolute merit: (1) arbitrator never makes a
mistake; (2) mistakes in an arbitral award is so insignificant that can be endured; (3)
as for the parties, desire for efficiency and finality is more important than the risks
brought by the mistakes in arbitral awards.6 In other words, finality will become an
advantage of international investment arbitration, only when the arbitral award is
correct, or when the damage that is caused by a mistake made in the arbitral is less
than the interests brought by the finality.
2
Berg 2005, p. 30.
3
Naimark and Drahozal 2005, p. 17.
4
Knull and Rubins 2002, p. 538.
5
Hunter 2000, p. 382.
6
石現明 (Shi X) 2009, p. 63.

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Breaking the ice in the international commercial arbitration

Nevertheless, the above prerequisite assumptions are insatiable in reality. Firstly,

as a human being, an arbitrator may make a mistake from time to time, just like a
judge. During the award making process, an arbitrator may be affected by several
factors, such as level of knowledge, experiences, emotions, values and ideology.
Such influential factors are particularly relevant to modern international investment
arbitration, since disputes are not only concerned with complicated legal issues, i.e.,
the application of foreign law, but also involve the plurality of the laws of different
countries, along with the complexity of technology, economic and finance.
However, since an arbitrator is rarely proficient as a legal expert or an economist,
an arbitrator may be more likely to make a mistake.
Secondly, damages caused by an erroneous arbitral award would not less than the
interests brought by the finality of the award. In modern international commerce the
value of transactions are normally high. As for the parties to such transactions, if a
mistake occurs in the making of an award and there is no appellate mechanism the risk
of participating in arbitration is high. Therefore, some scholars opine that arbitration is
only advantageous when a case can be won fairly. Martin Hunter, a famous
international investment arbitration scholar suggested, the reason that parties in
international commercial transaction choose arbitration, is that they can select a
neutral arbitration place, in order to avoid any injustice which may arise from a
domestic court hearing, and the ease of enforcement of the arbitral award in other
countries, but not the finality of arbitral awards, the high efficiency and the low costs.7
The most extreme example of this contradiction is the so-called “Czech” cases,
namely CME vs. Czech Republic and Lauder vs. Czech Republic, involving a dispute
between a US investor and the Czech Government.8 One action was brought by
Ronald S. Lauder based on the US–Czech bilateral investment treaty (BIT) and the
dispute was heard in the London Court of Arbitration, while the other was brought
by CME upon the Netherlands–Czech BIT and heard in Stockholm Chamber of
Commerce. Most significantly, the two tribunals reached radically different results
despite the similarity of the two BITs. The London tribunal declined to find an
expropriation, while the Stockholm tribunal, on similar facts, determined that
arbitration had indeed taken place.9
Two tribunals in the Czech cases reached agreement only in one aspect, that
Ronald S. Lauder and his partner, CME, had encountered discriminatory
treatment.10 Beyond that, the two tribunals reached totally different rulings on
issues, such as expropriation, fair and equitable treatment; and full protection and
security.11 Jeremy Carver, the lawyer representing the Czech government, latterly
expressed that these two awards had brought the law into a dilemma, as well as

7
Blackby et al. 2009, p. 303.
8
CME v. Czech Republic (September 3, 2001), UNCITRAL http://italaw.com/sites/default/files/case-
documents/ita0180.pdf Accessed on November 8, 2013. Ronald S. Lauder v. Czech Republic (September
3, 2001) UNCITRAL http://www.italaw.com/sites/default/files/case-documents/ita0451.pdf Accessed on
November 8, 2013.
9
McLachlan et al. 2008, p. 85, para 3–5.
10
McLachlan et al. 2008, p. 85, para 3.
11
Gantz 2006, p. 271, para 11–12.

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 Y. Zhou

bringing arbitration into a deep abyss.12 The results of the Czech cases have placed
a heavy burden upon the Czech government; since there is no appeal mechanism the
Czech government is forced to pay a considerable amount of compensation to
investors, around 270 million USD, and also the cover the cost incurred in
economic, political and diplomatic work.13 It can thus be seen that failing to provide
access to an appellate mechanism fails to guarantee fairness and justice within
international investment arbitration.
Even if the finality of an arbitral award is deemed to be an advantage which
attracts parties to choose arbitration as a form of dispute resolution, the arbitral
award does not represent the final resolution of the dispute. This is because the
“losing” party usually will seek judicial relief in domestic court in order to attempt
to revoke the arbitral award or delay the enforcement of the arbitral award.
Since, the finality of an arbitral award is not necessarily an advantage of
international investment arbitration, if there are no efficient remedies or approaches,
the potential of using arbitration to resolve international commercial disputes cannot
be developed. Further worries arising from the absence of remedies to rectify
mistakes occurring in arbitral awards is that some parties who are involved in large
transactions might choose litigation or an alternative dispute resolution method to
arbitration. The Arbitration Appeal Procedure and Commentary 2007, issued by
International Institute for Conflict Prevention and Resolution (CPR) pointed out
that, “[m]ost users of arbitration find the finality of an arbitration award appealing.
But some parties to major cases are concerned about the possibility of an aberrant
award and would like to be able to appeal from such an award to a tribunal of
outstanding appellate arbitrators. If the volume of transaction is very large, some
parties began to concern the possibility of unreasonable award. Thus, finality of
arbitral proceeding would prevent it to choose arbitration”.14 Accordingly,
international investment arbitration is losing potential parties because of concerns
regarding the finality of the award.

2 Theories concerning arbitral appeal mechanism

It was noted by Murray that, “as for the disputes with more and more complicated
features, when touching with the unresolvable legal issues or the arbitration, the
two-phrase trial is needed, which is possible for the appeal tribunal”.15 Furthermore,
Murray also proposed to build an international appellate arbitral tribunal without
mandatory jurisdiction, which can be applied to global investment arbitration. With
adequate and utmost flexibility, this international appellate arbitral tribunal will
make an important contribution to the internationalization of investment arbitration
and thereby help to develop modern commercial law.16
12
Id.
13
Gantz 2006, p. 272, para 2.
14
CPR Arbitration Appeal Procedure 3 February 2008.
15
Murray 2006, p. 49.
16
Murray 2006, p. 51.

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Theories concerning arbitral appeal mechanism can be generally divided into

four types as follows: national sovereignty theory, endogenous theory, exogenous
theory, and opposition theory.17 These theories are discussed in turn below.
The concept of the first mentioned theory, national sovereignty theory, is that the
arbitration of international investment disputes poses a severe threat to national
sovereignty.18 Under current international investment arbitration system, because of
the negative influence on profits realization, investors can raise charges against a
host state without having to endure such a burden. Accordingly, it has been
suggested by some commentators that arbitration could pose a serious threat to the
legislation of a host state. On the one hand, the host state’s legislation may pose
difficulties regarding the parties’ recourse to arbitration. On the other hand, arising
out of fear of being involved in arbitration, the host state’s legislature may try to
delay the legislative process to include arbitration as a method of dispute resolution,
which may affect the judicial development of the host state.19 However, an internal
appeal procedure could help to relieve these concerns. Since, mistakes made by the
tribunal could be corrected and it would be possible for the appeal body to suppress
the arbitral tribunal to expand interpretations on international obligations under the
treaties, to protect areas of enforcement reserved for the legislature, in addition to
protecting the judicial and administrative right of the host state to regulate the area
of foreign investment.20
In order to protect national interests, the national sovereignty theory was suggested
by strong sovereign states.21 However, the national sovereignty theory merely focuses
on independent sovereignty, without considering the interests of the parties.
The second theory that will be discussed is the endogenous theory, which was
suggested because of the internal deficiencies of arbitration.22 According to this
theory, the legitimacy of arbitration can be protected by the introduction of an appeal
procedure. Recent arbitral practice has demonstrated that tribunals are more likely to
protect the investor’s interests. To make an award in favor of the investor, some
arbitrators have expanded the jurisdictional scope and extended interpretations
without careful consideration.23 Because of such overreaching precedents, some
scholars have started to question the professionalism and ethics of arbitrators, as well
as the legitimacy and justice of the arbitration of international investment disputes.24
The endogenous theory was first proposed by American scholars. For example,
David Gantz, a reputable international investment law scholar, suggested that the
appeal procedure could help to eliminate conflicts arising between ICSID,
UNCITRAL and other international arbitration tribunals.25 Further, Doak Bishop
17
劉筍 (Liu S) 2009, p. 123.
18
石現明 (Shi X) 2011, p. 44.
19
石現明 (Shi X) 2011, p. 44.
20
Levy 2008, p. 215.
21
Paulsson 2011, p. 76.
22
劉筍 (Liu S) 2009, p. 122.
23
Levy 2008, p. 125.
24
Levy 2008, p. 140.
25
Gantz 2006, p. 261.

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 Y. Zhou

has indicated that, only an appeal body could ensure the consistency and
predictability of arbitral awards and decisions.26 Susan Frank opined that, the
appeal procedure is beneficial for protecting the predictability of awards, which
should also enhance trust and legitimacy.27 These commentators further support the
view that the establishment of an appeal procedure would serve to supervise and
deter an arbitrator from adopting the market operation mode excessively.
The third theory that will be discussed is the exogenous theory. Due to the
limitations of judicial review in arbitration, the exogenous theory was suggested to
modify this deficiency.28 Indeed, allowing parties to decide whether to appeal an
award would allow for the availability of remedies to rectify substantial mistakes
made in arbitral awards or decisions, which would result in a just outcome.29 Since
it is possible that an arbitrator may make mistakes, it is very dangerous to limit
arbitration to a single judgment procedure without appeal or other remedies.
The final theory to be considered, the opposition theory, largely refutes the
arguments for establishing an appeal procedure from the perspective of uniformity,
accuracy, implementation and enforceability of the arbitral award.30 Scholars who
support the opposition theory advocate that problems in international arbitration
have not become so serious as to justify the need to interfere with the cornerstone of
arbitration just yet.31 This theory advances that the increasing number of arbitration
awards demonstrates continuity, and has introduced soft precedence.32 Other
scholars in favor of the opposition theory suggest that the time that would be
allocated to an appeal hearing would be less than the first hearing, which is not
considered sufficient time to allow the appeal body to investigate the fact and apply
the law more accurate than the first hearing.33 Additionally, the opposition theory
suggests that the appeal procedure would not be able to resolve enforcement issues.
If the appeal body did amend the original award, then the new award would need to
be reviewed by the state court in the way same as the original award.34
Opinions regarding the arbitral appeal procedure have been viewed differently by
different courts in US with regard to investment arbitration. Some US courts have
expressed the opinion that agreements that have been signed by parties to enlarge
the scope of the judicial review were void. For instance, in Bowen vs. Amoco
Pipeline Co, the Tenth Circuit Court of Appeal decided that, “as the theoretical basis
was judicial right, parties cannot simply sign the agreement to enlarge the scope of
judicial review”.35 In 2008, the US Supreme Court reached a final decision on this
26
Bishop 2005, p. 11.
27
Franck 2005, p. 1532.
28
Rovine 2012, p. 74.
29
Franck 2005, p. 65.
30
劉筍 (Liu S) 2009, p. 123.
31
Rovine 2012, p. 205.
32
Soft precedence arises since the arbitral tribunal usually relies on previous awards to ascertain the
legitimacy of its own award.
33
Rovine 2012, p. 205.
34
Rovine 2012, p. 206.
35
Franck 2005, p. 1525, para 20.

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point in Hall Street Associates L.L.C. vs. Mattel Inc., in ruling, “Parties cannot
enlarge the scope of judicial review by signing agreement”.36
As mentioned above, finality of an arbitral award is not an absolute advantage in
international investment disputes.37 From the perspective of both the foreign
investor and the host state, arbitration is not entirely driven by the finality of the
award, or efficiency of the process. Stubbornly adhering to finality in cases
involving such arbitration hearings is groundless.
Building an arbitral appeal mechanism could help to overcome concerns
regarding rationality which may be triggered by the inconformity of arbitral awards.
It has been seen that different tribunals may interpret the provisions of similar
treaties differently.38 As there is no unified interpretation, it is conceivable how an
arbitral panel may construe clauses or terms differently, which may be detrimental
to the predictability of the conventional rights. The unilateral arbitral appeal
mechanism helps to resolve this problem and reduces the risks of incorrect
interpretation to a minimal degree by reviewing the awards granted under different
treaties and conventions in a more uniform manner.

3 Parties rejection of finality

The Arbitration law in some countries does not implement the finality of arbitral
award as a fundamental principle. In particular, there are two different instances
when countries have legislated against finality of award.39 For example, Section 58
of the U.K. Arbitration Act 1996 provides that, “unless otherwise agreed by the
parties, an award made by the tribunal pursuant to an arbitration agreement is final
and binding both on the parties and on any persons claiming through or under them.
This does not affect the right of a person to challenge the award by any available
arbitral process of appeal or review or in accordance with the provisions of this
Part”.40 Section 73 of the Hong Kong Arbitration Ordinance (2011) sets out a
similar provision, “unless otherwise agreed by the parties, an award made by an
arbitral tribunal pursuant to an arbitration agreement is final and binding both on—
(a) the parties; and (b) any person claiming through or under any of the parties”.41
Arbitration law in other jurisdictions has also not rendered an arbitral award as
final, but has alternatively provided that parties can appeal to the arbitration
institution or domestic court against the arbitral award. A typical example of such
provision can be found in the Netherlands Arbitration Act 1986. Article 1050 in
Netherlands Arbitration Act 1986 Code of Civil Procedure stipulates, “an appeal
from the arbitral award to a second arbitral tribunal is possible only if the parties

36
Supreme Court rejected expanded judicial review of arbitral awards in Hall Street v. Mattel, para 78.
http://online.wsj.com/public/resources/documents/SCOTUS_Hall_ruling.pdf. Accessed on March 2, 2013.
37
Steingruber 2012, p. 190.
38
Gaillard and Savage 1999, p. 211.
39
Moser 2012, p. 129.
40
United Kingdom Arbitration Act 17 June 1996.
41
Hong Kong Arbitration Ordinance 1 June 2011.

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 Y. Zhou

have agreed thereto. Unless the parties have agreed otherwise, an appeal to a second
arbitral tribunal from a partial final award can be lodged only in conjunction with an
appeal from the last final award”.42 Meanwhile, Article 34.1 in Macau 29/96/M
Ordinance 1996 provides that, parties can confirm the appellate level in arbitration
agreement or written complementation agreement. But, it must prescribe the
conditions, duration, mode and entities of appeal, or it is ineffective.
Further, some international investment arbitration institutions have already set up
an internal arbitral appeal procedures. Parties can appeal against the award to an
internal permanent or temporary appeal tribunal.43 For many years, arbitration rules
in a number of international commodity associations provided for an independent
and default arbitral appeal procedure, in the absence of contrary agreement. For
instance, London Corn Trade Association, CTF Coffee Trade Federation, London
Rise Brokers Association all conducted two tiers of arbitration, unless parties
otherwise agreed. If a party did not accept the arbitral award, an appeal to the
arbitration appellate institution could be made.44 Quite like arbitration in
international commodity association, many maritime arbitration mechanisms also
provided an arbitral appeal procedure.45
So as to resolve investment disputes between investor and state, one peculiar
character of ICSID is that it provides for the challenge, review and annulment of an
award. Although, the reasons to revoke award in ICISD are only limited to
procedural issues, it also may be categorized as a form of arbitral appeal procedure
or quasi-appeal procedure. The ICSID Secretariat published Possible Improvements
of the Framework for ICSID Arbitration on 22 October 2004, which set out, amongst
other issues, a proposal to establish an ICSID appeal procedure.46 In addition, to
ensure that an arbitral award is made in accordance with procedural and substantial
justice, the US have suggested including an investment arbitral appeal procedure in
newly concluded BITs and free trade area agreements (FTAs) to ensure procedural
and substantial review of original arbitral awards where necessary.47

4 Inclusion of arbitral appeal mechanism within international

investment arbitration

At first instance, the primary goal for an arbitral appeal mechanism is to ensure
accuracy and uniformity of interpretation of treaties.48 Hence, experts involved in
the appeal procedure should be selected in terms of possessing a high level of expert
knowledge and significant experience in arbitrating international investment
hearings. Experts appointed on the appeal panel must follow the fundamental
42
Netherlands Arbitration Act Code of Civil Procedure 1 December 1986.
43
McLachlan et al. 2008, p. 112.
44
Varady and Barcelo 2012, p. 59.
45
Varady and Barcelo 2012, p. 60.
46
ICSID Secretariat 2004 Possible Improvements of the Framework for ICSID Arbitration.
47
Greenberg et al. 2011, p. 150.
48
Pryles and Moser 2007, p. 49.

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Breaking the ice in the international commercial arbitration

principles set out in the Vienna Convention to enforce the obligations of host states
in international commercial treaties. Especially, In particular, such expert appeal
panelists must interpret the treaties according to the original intention of the states.
In addition, independence and justice must be achieved in the arbitral appeal
mechanism. Since, in recent cases, commercial interests appear to have influenced
arbitrators to rule in favor of the foreign investors.49 Therefore, the independence
and just approach of experts appointed to an arbitral appeal panel must be
supervised in a strict manner. Because of the sensibility and the high level of
expectations placed upon an appeal procedure, it would be necessary to develop a
code of conduct for to guide the conduct of appeal panelists.50
Moreover, to protect the impartiality of awards made by the appeal panel, more
experts from developing countries should be invited to join the appellate body. In
addition, increasing the transparency of the appeal procedure and giving the public
opportunities to participate are significant ways to improve the supervision
mechanism and promote justice.
Moreover, efficiency of the appeal procedure should also be given high priority.
High cost and low efficiency would largely reduce the reliance on this mechanism.
From the perspective of protecting the authority and efficiency of the appeal
procedure, the appeal procedure should eliminate other potential avenues for the
parties to review the award.51 It would be necessary to limit the time duration of the
arbitral appeal mechanism strictly to reduce costs, and to ensure that the award
made by the appeal body is final and can be enforced efficiently.
However, at the time of writing, setting up a unified international arbitral appeal
body was not considered to be a realistic option.52 Currently, the wide promotion of
an arbitral appeal mechanism not been carried out.53 From a technical perspective
related to efficiency, some questions need be addressed first. For example, how to
ensure a reasonable duration of the appeal procedure will be implemented without
reducing efficiency? Which one deserves protection, accuracy or finality? How to
limit the jurisdiction scope of appeal, legal issue or factual issue? Which legal
methods shall be followed? What constitutes the appeal body? How to guarantee the
high quality and justice of the arbitrator? How to ensure the awards made by the
appeal body can be implemented thoroughly? Should a domestic court review an
award?54
At the current stage, one reasonable proposal is to provide an internal arbitral
appeal institution.55 Whether to enforce the arbitral appeal mechanism in
international investment arbitration would depend upon the parties’ autonomy.
Reasons for parties to choose arbitration for dispute resolution are varied and
numerous. It is hard to say whether parties would choose finality over justice, or
49
Hunter 2000, p. 383.
50
WTO DSU refers to WTO Dispute Resolution Understandings.
51
Rovine 2012, p. 194.
52
Rovine 2012, p. 194.
53
劉筍 (Liu S) 2009, p. 127.
54
Born 2011, p. 14.
55
Gleason 2007, p. 278.

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 Y. Zhou

vice versa. Allowing parties to exclude finality and to appeal against the arbitral
award promotes a in a fair and just system. However, conflict is inevitable. The way
to solve any such conflict is to provide flexible legislation, which has due respect for
party autonomy, and saves the parties from needing to make a decision between
finality and substantial justice. In other words, unless otherwise agreed, international
investment arbitration should be conducted in one tire. If the parties agree
otherwise, it must comply with the agreement of the parties.
In choosing an appeal procedure, the choice should be exclusive. Parties must
give up other judicial remedies. The award made by the appeal body should be final.
In this way, it would be possible to overrule a repetitive review by the domestic
court, saving judicial resources and reducing the litigation burden. Most
importantly, these awards could also be enforced in other states according to the
New York Convention.
It is possible that, some parties might utilize the arbitral appeal mechanism as a
delaying tactic to stall for time in order to avoid enforcement of the award, which
could be damaging to the other party. Therefore, limitations should be stipulated.
For example, the minimum amount of money requirement shall be used to limit the
application for the appeal.56 The total amount of money in one case that smaller
than the minimum requirement cannot be accepted, in which case, it cannot proceed
to the appeal procedure. Moreover, as a further safe guard against delaying tactics it
is proposed that the complaining party must pay for the costs in the appeal
procedure.

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