The Concept of Appeal in International Dispute Settlement

The European Journal of International Law Vol. 19 no.
1 © EJIL 2008; all rights reserved
..........................................................................................
The Concept of Appeal

in International Dispute
Settlement*
Downloaded from https://academic.oup.com/ejil/article/19/1/43/430788 by guest on 26 October 2021

Noemi Gal-Or
Abstract
The WTO Appellate Body represents an innovation in international law in that an inter-
national adjudication authority now operates as a final instance to hear appeals arising
from international arbitral (panel) procedures. It is thereby strongly emulating domes-
tic appellate courts without, however, possessing the characteristics that make appellate
courts the institutions of justice that they are. Following this trend in a cutting-edge fash-
ion are several other inter-governmental arrangements that had been either concluded
(Central America Free Trade Agreement (CAFTA), the Olivos Protocol in the Southern
Common Market (Mercosur)) or proposed (the US Congresses’ 2002 Trade Promotion
Authority Act, the ICSID Discussion Paper of 22 October 2004, the third draft Free
Trade Area for the Americas). They embrace the concept of a permanent international
instance for appeal from arbitral awards, particularly regarding investment agreements
including also disputes arising between the state (public) and the individual legal person
(private).
1 Introduction
One of the innovations in international law1 introduced in the Marrakech Agreement
Establishing the World Trade Organization (WTO)2 was the Appellate Body (AB),
then unique among global and multilateral organizations. Presumably, for trade
* Director, Institute for Transborder Studies, and Professor, Department of Political Science, Kwantlen
University College, Canada. Email: [email protected].
Thank you to the participants at the conference International Law: Do We Need It? Agora 8: International
Dispute Resolution, European Society of International Law: Second Biennial Conference, 18–20 May 2006,
Paris, and to the anonymous EJIL reviewers for their questions and comments regarding this article.
1
Throughout the article, I use ‘international law’ and ‘public international law’ interchangeably.
2
Agreement establishing the World Trade Organization, 1994, available at: www.wto.org.
EJIL (2008), Vol. 19 No. 1, 43–65 doi: 10.1093/ejil/chm054

44 EJIL 19 (2008), 43–65
and investment matters, the international community now has an international

adjudicatory authority that operates as a final instance to hear appeals arising from
its international panel procedures. The cutting-edge WTO AB precipitated a following
as several other multilateral inter-governmental arrangements were either concluded
(the International Centre for the Settlement of Investment Disputes (ICSID) amend-
ments,3 Central America Free Trade Agreement (CAFTA-DR-US),4 the Olivos Protocol
in the Southern Common Market (MERCOSUR),5 the US Congress’ 2002 Trade Pro-
motion Authority Act),6 or proposed (the third draft Free Trade Area for the Americas

(FTAA)7). They embrace the concept of a permanent international instance for appeal
from arbitral or panel awards, including also investment disputes arising between the
state (public) and the individual legal person (private). Arguably, in principle, this
trend is inspired by the concept of domestic appellate courts.8 But, is it really assuming
such a role?
Much has been written about the gap between theory and practice regarding
compliance with WTO panel as well as AB awards. A review of the literature shows
that in the discourse on the judicialization of international organizations and
regimes, the inductive approach focusing on various aspects of the appeal proce-
dure, e.g. standard of review, relation to domestic courts and domestic law, judicial
law-making, effectiveness of the process, etc.,9 has been dominant. Similarly, the
literature on annulment of an award has been largely focused on ICSID procedures
and the investor–state relationship.10 In this article, I am arguing that what require
3
ICSID Discussion Paper, 22 Oct.2004, and Amendments to the ICSID Rules and regulations. ICSID News
Release, 5 Apr. 2006, available at: www.worldbank.org/icsid/highlights/03-04-06.htm.
4
Annex 10F-Appellate Body or Similar Mechanism, Chapter Ten Investment, The Central America–
Dominican Republic–United States Free Trade Agreement, 2004, available at: www.ustr.gov/Trade_
Agreements/Bilateral/CAFTA/CAFTA-DR_Final_Texts/Section_Index.html.
5
Protocolo de Olivos para la Solución de Controversias en el MERCOSUR, Secretariat MERCOSUR, 2000, avail-
able at: www.mercosur.int/msweb/principal/contenido.asp.
6
US Model Bilateral Investment Treaty (BIT), 2004, Office of the US Trade Representative, available at:
www.ustr.gov/Trade_Sectors/Investment/Model_BIT/Section_Index.html; see also Hornbeck, ‘A Free
Trade Area of the Americas: Status of Negotiations and Major Policy Issues’, CRS Report RS20864.
7
Third Draft Agreement – November 21, 2003. Free Trade of the Americas Draft Agreement. FTAA.TNC/
w/133/Rev.3, available at: www.ftaa-alca.org/FTAADraft03/Index_e.asp.
8
It generally coincides with appellate mechanisms in other areas, for instance, in the International Crimi-
nal Tribunal for the Former Yugoslavia (ICTY). However, appellate bodies in the area of international
criminal and humanitarian law are distinguishable primarily due to the evidentiary rules as well as ju-
dicial appointment procedures governing the entire adjudicatory process leading up to appeal. The first
report of the ICTY clearly states: ‘9. Certain basic traits of the Tribunal stand out to distinguish it not only
from war crimes tribunals of the past but also from any other mechanism for international dispute resolu-
tion’: Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of In-
ternational Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, ICTY Annual
Report, UN GA Forty-Ninth Session A/49/342 – S/1994/1007, 29 Aug. 1994, available at: http://www.
un.org/icty/rappannu-e/1994/index.htm. For lack of space, I will defer this discussion for another time.
9
To which I will refer throughout this article.
10
Bjorklund, ‘The Continuing Appeal of Annulment: Lessons from Amco Asia and CME’, in T. Weiler (ed.),
International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and
Customary International Law (2005), at 471.
The Concept of Appeal in International Dispute Settlement 45
a profound debate are rather deliberations on the purpose and role of appeal (and
finality) in general, and specifically in international law. Therefore, the focus will
be on (a) the meaning of finality in international trade and investment dispute set-
tlement (DS),11 and (b) the corollary designation of ‘appellate’ to adjudicative bodies
in international trade and investment law, which do not satisfy those characteris-
tics that make municipal12 appellate courts the institutions of justice that they are.
The main common denominator arising explicitly or implicitly in the discourse
is that an appeal instance is warranted as a means to harmonize an increasingly

fragmented international jurisprudence and law. In the following preliminary
thoughts on the subject, which I tackle in a deductive approach, I explore the the-
oretical teleology of finality and how it is served by the appeal process. I begin by
identifying the meaning of, and purpose served by, finality for justice and the rule
of law (consistency, integrity, and certainty). I then discuss two core principles of
law designed to sustain finality – res judicata and stare decisis. Next, I analyse the
divide separating international law theory from practice, and arising from the dif-
ference between municipal law (in which these principles are rooted) and interna-
tional law; and apply it to the difference between courts and tribunals (litigation and
arbitration). I then list some of the issues emerging from the international legisla-
tion’s legalization of DS and adjudication (mainly the WTO, North American Free
Trade Agreement (NAFTA),13 and ICSID provisions), which, when juxtaposed with
the principles above, reveal the paradoxical nature of contemporary international
‘appeal’. In conclusion, I argue that in order to prevent further discontinuities in
public international law and satisfy the need for finality, a discussion of the rela-
tionship between the theoretical and practical developments of public international
law must precede, at least accompany, the development and design of procedural
aspects of appeal.
11
Due to the recent proliferation of treaties and DS mechanisms and bodies, resulting in paralleling and com-
peting jurisdictions and awards, those experts focusing their attention on the subject of finality most typ-
ically concentrate on DS in trade and investment. In the report on The Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law (International Law Commis-
sion, UN GA Fifty-Eighth Session, 13 Apr. 2006, available at http://untreaty.un.org/ilc/summaries/...),
the Chairman, Martti Koskenniemi, addresses several issues pertinent to finality. Nevertheless, the report
does not discuss the issue of appellate review. Although reference is occasionally made to the role of
hierarchy, the report specifies as follows:
‘12. … But what does this do to the objectives of legal certainty and the equality of legal subjects?
13. The previous paragraph raises both institutional and substantive problems. The former have to do
with the competence of various institutions applying international legal rules and their hierarchical rela-
tions inter se. The Commission decided to leave this question aside. The issue of institutional competencies
is best dealt with by the institutions themselves’ (at 13). Other notable attempts at coming to grips with
the transformative evolution of international law have also left the appellate review outside their scope
of study: see, e.g., Teitel, ‘Humanity’s Law: Rule of Law for the New Global Politics’, 35 Cornell Int’l LJ
(2002) 355.
12
Throughout the article, I use ‘municipal’, ‘domestic’, and ‘national’ interchangeably.
13
Secretariat. North American Free Trade Agreement 1994, available at: www.nafta-sec-alena.org/
DefaultSite/index_e.aspx?DetailID=78.
46 EJIL 19 (2008), 43–65
2 Finality
What constitutes finality in international law was and remains ‘still unclear’.14 Hart’s
characterization may offer the closest definition: ‘[a] supreme tribunal has the last
word in saying what the law is, and when it has said it, the statement that the court
was “wrong” has no consequence within the system: no one’s rights or duties are
thereby altered’.15 Much of the literature addressing finality discusses the interest of
the international community, and consequently of international law, in finality;16

the nature of international law as presumably favouring finality;17or proposes vari-
ous prisms through which to seek an understanding of finality in international law.18
However, I found little discussion of the meaning of finality in international law,19 and,
similarly, almost no discourse on the essence of the ultimate process leading to finality,
namely appeal.20
To understand the full-scale of implications of the (trans)forming new process of
appellate review in a developing international law, I employ the positivist measuring
yard. Within this legal theory, which served the international community for most of
the past century, the adjudicative system in public international law is postulated as a
legal system designed to fulfil the justice-as-fairness needs of the international system of
states.21 Procedurally, any justice system serves fairness by fostering certainty through
14
J. Jackson quoted in Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), at
253, n. 114.
15
H.L.A. Hart, The Concept of Law (2nd edn., 1994), at 141.
16
E.g., Shany, supra note 14, at 170.
17
E.g., indirectly, R. Dworkin, Law’s Empire (1986), at Ch. 7.
18
E.g., R. Muellerson, Ordering Anarchy. International Law in International Society (2000).
19
Although there is ample discussion of res judicata, which represents one component of finality. Most re-
cent and significant is the treatment of res judicata by the International Court of Justice (ICJ) in Case Con-
cerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, General List 91, available at:
www.icj-cij.org/homepage/index.php?lang=en.
20
Here, too, there is a growing literature about procedures that may be considered as necessary compo-
nents of an appeal process, but I have not seen any discussion of the link of appeal to finality in public
international law. Bjorklund mentions the dichotomy of correctness and finality as a tension governing
arbitration, not appeal (supra note 10, at 504–505, 512).
21
I am not ignoring the importance and right to justice of non-state actors (NSAs) in the international sys-
tem. I am simply acknowledging the origins of that legal system. See T.M. Franck, Fairness in International
Law and Institutions (1995). Teitel, like many others by now, identifies an ethos of a new global rule of law
that ‘challenges the international legal system’s prevailing bases and values in a number of ways’ (su-
pra, note 11, at 359). She provides an important analysis of several theoretical tensions with conflicting
practical outcomes, e.g. between domestic and international law, humanitarian and human rights law,
international criminal law and the law relating to national self-determination. These suggest a possible
departure from a positivist approach governing international law to what she refers to as a humanitari-
anist’s approach. See, for instance, also Gal-Or, ‘Private vs. Public International Justice: The Role of ADR
in Global and Regional Economic Treaties’, in R.C. Thomsen and N.L. Hale (eds), Canadian Environments:
Essays in Culture, Politics and History (2005), xx, 205–229 (hereinafter ‘Private vs. Public International
Justice’); Gal-Or, ‘Outsourcing of Justice: Applying the Legitimacy Test of Fairness to the Institutionalisa-
tion of International Commercial Arbitration’, in J. Meyer et al. (eds), Reflexive Representations: Politics,
Hegemony, and Discourse, in Global Capitalism (2004), at 127–139 (hereinafter ‘Outsourcing of Justice’).
the combination of consistency and integrity.22 However, the recent mushrooming of

many international courts and tribunals, and the often different, at times contradic-
tory, awards they produce,23 suggest a development in public international law which
is anathema to justice, even to the notion of legality,24 because it lacks uniformity.
Consistency may take two forms, which are not contradictory and, combined, con-
tribute to integrity: vertical and horizontal.25 Vertical consistency arises from the inter-
pretation of the law as progressing through a hierarchy of authoritative adjudicatory
instances. In other words, the hierarchy of courts represents steps towards finality:

first comes the award of the panel, then of the AB; or, at a certain level comes the deci-
sion about a particular case in the European Court of First Instance (ECFI), but it is the
European Court of Justice (ECJ) which determines whether the lower instance’s inter-
pretation is consistent with the ‘scheme of principles’.26 This order is universal to law,
hence it applies respectively to the examples of international trade law or European
law. In the vocabulary of municipal law, vertical consistency means levels of appeal.
Horizontal consistency secures that rights and obligations remain identical and
universal across time and subject matter as they arise in different cases and under
varying circumstances. A judgment in one case of anti-dumping violation will uphold
the same rights and obligations as a judgment in another case of dumping; and if the
same rights and obligations are in question in a case of illegal subsidy, the judgment in
the subsidy case is expected to conform to the position regarding these rights and obli-
gations as taken in the dumping case. In the vocabulary of municipal law, horizontal
consistency means stare decisis, precedent.27
Taken together, both types of consistency – vertical and horizontal – are integrated
to represent uniformity and, consequently, reinforce certainty about the system at
large. This promotes satisfaction with adjudicative awards, contributes to finality,
which in turn feeds into the sense of certainty. However, as mentioned above, the
development in public international law lacks uniformity. For once, theoretically,
22
Regardless of the variety of socio-cultural specific substantive moral and ethical underpinnings of
fairness.
23
E.g. Bjorklund, supra note 10; Sosnow, Morellato, and Millen, ‘Softwood Lumber as Case Study: Canada–
U.S. Dispute Resolution under NAFTA and the WTO’, 6(3) Canadian Int’l Lawyer (2005) 131 (hereafter:
Sosnow et al.).
24
In the sense that the court interprets (and, according to a branch of international legal experts, also cre-
ates) the law, and the subjects of the law are bound to adhere to it. See Teitel, supra note 11, and ‘Private
vs. Public International Justice’ and ‘Outsourcing of Justice’, supra note 21, on the need for new interpre-
tive principles and the shift in legitimacy and authority, as well as Gal-Or, ‘Towards a Transdisciplinary
Discourse on the Link of Trade and Investment, International Law, and Global Governance: Is a New
Terminology Needed?’, presented at several conferences 2004–2006, currently under consideration for
publication (hereinafter ‘Towards a Transdisciplinary Discourse’).
25
I find this distinction by Dworkin (supra note 17, at 227) useful, although in a different manner from that
employed by him.
26
Ibid.
27
This principle is a pillar of the common law legal system, whereas in civil (continental) law, precedent
performs a secondary role. Of course, in practice, civil law courts refer to earlier judgments, which is
important. However, they may depart from earlier judgments the next time, and are not bound to them
as common law is bound to stare decisis. I thank Claudia Kissling for clarifications on this point.
48 EJIL 19 (2008), 43–65
international law rejects horizontal consistency:28 explicit exclusion of the principle of

stare decisis is found in many treaties (which are the primary sources of international
law).29 To be sure, in practice, international law does develop – and to a significant
extent so – by the use of precedent.30 This represents one paradoxical situation which
undermines consistency and integrity, although it may not undermine uniformity, for
all tribunals actively participate in, and perpetuate, this fallacy.
International law also rejects vertical consistency. While the rejection of horizontal
(stare decisis) consistency is a formal ‘positivist’ one, the abhorrence against vertical

consistency (hierarchy) is reflected in circumvention. The failure to specify the purpose
of appeal for the international system and the resort to an unsustainable31 process of
annulment are one indicator. The others include the haphazard design of an appeal
architecture (e.g. selection of judges, transparency, the agency delegation question) and
processes (e.g. transparency, range of appealable issues, standard of review, methods of
interpretation), and the general avoidance of addressing the difference between litigation
and arbitration. In brief, in order to satisfy the requirement of consistency, integrity, and
uniformity, drafters of international law32 must ask themselves the three following ques-
tions: appeal for what purpose?; appeal from what?; appeal under what conditions?
3 The Teleology of Finality and Appeal: Res Judicata and

Stare Decisis
The law is about standards and rules governed by principles and designed to serve
as instruments of control in society.33 Control evokes the notion of hierarchy, where
28
Koskenniemi addresses the theoretical postulate about the ‘“horizontal” nature of the international legal
system’ (supra note 11, at 166) in the sense that there is ‘no general order of precedence between interna-
tional legal rules’ (ibid.). Yet he maintains that ‘[t]here has never been any doubt about the fact that some
considerations in the international world are more important than others, and must be legally recognized
as such – although how that sense of importance could be articulated has been the subject of lasting aca-
demic controversy. Here it is not suggested to take a position on that controversy –…’ (ibid., at 167).
29
See Bhala, ‘The Myth about Stare Decisis and International Trade Law (Part One of a Trilogy)’, 14
American University Int’l L Rev (1998–1999) 845 (hereafter: Bhala I). Koskenniemi comes close to such
view (yet not identical, because he refers to norms only, e.g. not rules) when acknowledging that ‘[t]here
is an important practice that gives effect to the informal sense that some norms are more important than
other norms and that in cases of conflict, those important norms should be given effect to. … [P]ractice
has developed a vocabulary that gives expression to something like an informal hierarchy in interna-
tional law’ (supra note 11). He then goes on to elaborate on this problem when discussing conflict be-
tween successive norms (in Part D), and relations of importance regarding Art. 103 of the UN Charter,
jus cogens, and obligations erga omnes (in Part E).
30
Bhala I, supra note 29; Ninatti, ‘How Do Our Judges Conceive of Democracy? The Democratic Nature of
the Community Decision-making Process under Scrutiny of the European Court of Justice’, 10/03 Jean
Monnet Working Paper (2003); ‘Private vs. Public International Justice’ and ‘Outsourcing of Justice’,
supra note 21.
31
Unsustainable in the sense that the separation of substantive and procedural grounds is basically a fiction.
32
I will not identify them here as this will trigger a discussion which is beyond the scope of the article.
33
Dworkin, supra note 17; M.W. Riesman, Systems of Control in International Adjudication and Arbitration.
Breakdown and Repair (1992).
authority, which is given (or when merely formal, appropriates for itself) the power
to control, has the last word as manifestation of itself, namely of authority. Dworkin
identifies a tension underlying this order of control, consisting of finality (represent-
ing the ‘formalism’ and determinism of authority) juxtaposed with the expectation of
infallibility (representing the uncertainties of communication and interpretation of the
law, ‘rule-scepticism’).34 Put simply, it is the human desire for reassurance through
determinism and certainty which facilitates predictability, and hence control versus
the human natural faculty to err. How can a justice system reconcile this strain?

A Res Judicata
One element of finality is provided through the principle of res judicata. It is this quality
of a decision which ‘covers all the various possible binding effects of a judgment on
subsequent litigation’.35 It has two aspects: one regards the identity of the claim and
operates as a direct estoppel barring the plaintiff from re-claiming the same against
the same defendant, the judgment operating as a replacement of the cause of action
(or ‘merger’).36 The other aspect bars re-litigation by the same parties where the new
claims are different from those previously judged, but the issue in question is the same
and has been determined by the court.37 Res judicata thus serves one main purpose,
namely countering the risk of indeterminacy arising from multiple proceedings.38
Two diverging rationales, which are occasionally contradictory, underlie res judi-
cata: the private interest and the public good.39 They mirror the private–public ten-
sion which inhibits international trade and investment law at large, and particularly
the recent developments of the Law Merchant.40 For the private interest, res judicata
ensures that ‘the private interest not … be vexed by more than one litigation on
34
Dworkin, supra note 17, at 141 and Ch. 7 generally. Infallibility relates also to correctness of decision.
35
Harnon, ‘Res Judicata and Identity of Actions. Law and Rationale’, 1 Israel L Rev (1966) 539.
36
Ibid., at 540.
37
Ibid.
38
For a more detailed discussion of conditions to assure res judicata see the doctrine of lis alibi pendens, which
prohibits parallel proceedings while a first set of proceedings is pending, and the doctrine of electa una
via, which is designed to bar multiple petitions by the same applicant. See Shany, supra note 14, and
Bjorklund, supra note 10, at 509, 519. These doctrines are less relevant to the point I wish to make in this
article and are therefore beyond its scope.
39
This was reiterated by the ICJ in Bosnia and Herzegovina v. Serbia and Montenegro: ‘[t]wo purposes, one
general, the other specific, underlie the principle of res judicata, internationally and nationally. First, the
stability of legal relations requires that litigation come to an end. … Secondly, it is in the interest of each
party that an issue which has already been adjudicated in favour of that party be not argued again’: supra
note 19, at 44.
40
To which I will attend later in this article. This tension became apparent during the latest debate of the In-
ternational Commercial Arbitration Committee of the International Law Association on its Draft Resolu-
tion No. 1/2006, including Annexes 1 and 2; The World Is Here, the 72nd Conference of the International
Law association, 4–8 June 2006, Toronto, personal notes. Teitel, who focuses on the transformation of
international law arising from the humanitarianist legal regime, observes similar conceptual complica-
tions wherein the private and the ‘collective’ (although not the institutionalized ‘public’) are pitched one
against the other in what she refers to as a ‘minorities regime’ (supra note 11, at 378–379) and ‘cosmo-
politan’ schemes (at 383).
50 EJIL 19 (2008), 43–65
the same matter, the purpose is to promote stability and assure the litigant that he
may rely on it knowing that his rights and duties have been finally determined by a
competent tribunal’.41 For instance, applying this rationale to the arena of interna-
tional adjudication, the sentiments expressed by affected stakeholders in the softwood
lumber ‘saga’42 are telling. A recent ruling by the WTO AB, which left the debate about
whether the Canadian lumber imports represented a threat of injury to the American
industry unresolved,43 exemplifies the problem of res judicata from a private interest
perspective. The Canadian executive vice-president of the Free Trade Lumber Council

noted in disappointment that ‘[t]hey [WTO AB] are basically saying: “If you are dis-
satisfied, come back and ask us again”’.44 Stephen Harper, Canada’s Prime Minister,
obviously concerned about the industry more than international law, echoed this sen-
timent: ‘I have told the president [Bush] in the very near future if we don’t get a reso-
lution on this issue we intend to support our industry, and support it much stronger
than it has been supported in the past.’45 Similar comments were reciprocated on the
American side.
The other rationale of res judicata takes a public good perspective. ‘As to the public
interest, the general good requires an end to litigation so as to ensure effective and
economic work of the courts.’46 This position deplores the unprecedented multitude of
proceedings in different fora, which cause great expense, stretch over a very lengthy
period of time yet fail to deliver the sought-after finality and, hence, do not establish
certainty.47 Obviously, it is difficult to separate the concern for the public good from
private frustration:
Yet, … if the history of this dispute demonstrates anything, it is that negotiated solutions end,
or are brought to an end, with the inevitable start-up of bitter litigation … The real question
is whether the available dispute resolution mechanisms can be strengthened so as to bring
some order and efficient resolution to such litigation … impose some degree of finality and
certainty…48
41
Harnon, supra note 35, at 543 (original emphasis).
42
Sosnow et al., supra note 23. The recent specific case in the softwood lumber sequel revolved around US
complaints that Canada was dumping its subsidized softwood lumber exports into the US market, thereby
posing a threat of injury to the same industry in the US. The ‘saga’ represents a three centuries long dis-
pute between Canada and the US, with an over two decades ‘modern’ incarnation, and a ‘mere’ decade of
adjudication in the WTO and NAFTA.
43
United States – Investigation of the International Trade Commission in Softwood Lumber from Canada, Re-
course to Art. 21.5 of the DSU by Canada, AB-2006-01: World Trade Organization, WT/DS277/AB/RW
(06-1735), 13 Apr. 2006, available at www.worldtradelaw.net/reports/wtoab/us-lumberitc(ab)(21.5).
pdf. The WTO AB did not reverse the WTO panel’s ruling, but at the same time also communicated its
reservation from the lower body’s finding by observing that ‘the panel placed an “undue burden” on
Canada’: Hamilton, ‘“Canada Goofed” on Softwood Appeal to WTO’, Vancouver Sun, 14 Apr. 2006, H1-2.
The case was intricately linked to parallel proceedings in another international tribunal, the NAFTA, and
one municipal court, the US Court of International Trade, and consequently represented a res judicata
challenge.
44
Ibid.
45
Ibid.
46
Harnon, supra note 35, at 543.
47
Sosnow et al., supra note 23.
48
Ibid., at 140–141. The term ‘litigation’ is a misnomer, which I discuss later.
Res judicata is endogenous to the concept of appeal. First, to find fault with a judg-
ment (for whichever ground – substantive or procedural), the judgment must be of a
binding nature. Otherwise, why appeal and not simply disregard? At the same time
however, res judicata tolerates dissenting opinions and also allows for staggered types
of finality. Normally, in the case of a judgment with divergent opinions, the major-
ity opinion is recognized as the res judicata. Also, the right of appeal per se represents
the recognition that finality may be compromised by infallibility which may require
correction. Indeed, the persistence of such inconsistencies can be tolerated precisely

thanks to the staggered architecture of appeal, and only if ‘we deal with various pro-
ceedings within a single action. Since the whole process of one and the same action
has not yet come to an end, the position of the court is not really undermined.’49 In
social science parlance, this suggests that res judicata is not an independent variable,
although it ‘has long been considered as an established principle of international
law’.50 It prevails when it is the only option, where there exist only one proceeding
and one court, but also where there is more than one proceeding for the same case and
a corresponding institutional composition, i.e. lower and higher courts; it arises from
within the teleology of municipal law and flows from the logic underpinning court
adjudication, not ‘alternative’ dispute resolution (e.g. arbitration).51
One way of understanding res judicata as a building block of appeal leading to final-
ity, is by addressing the question of ‘how much of what could have been, and yet had
not been, dealt with in the first action, becomes merged or barred [from subsequent
proceedings]. It involves the determination of the question when are two actions con-
sidered to be on the same matter’.52 In fact, most provisions governing the design of
international courts and tribunals provide for finality clauses.53 However, they also
provide for exceptions54 to this principle, yet without corresponding consistent and
49
Harnon, supra note 35, at 544. The ICJ tentatively proposes a res judicata test: ‘[i]n the view of the Court,
if any question arises as to the scope of res judicata attaching to a judgment, it must be determined in each
case having regard to the context in which the judgment was given. … For this purpose, in respect of a
particular judgment it may be necessary to distinguish between, first, the issues which have been decided
with the force of res judicata or which are necessarily entailed in the decision of those issues; secondly,
any peripheral or subsidiary matters, or obiter dicta; and, finally, matters which have not been ruled upon
at all. Thus an application for interpretation of a judgment under Art. 60 of the Statute may well require
the Court to settle ‘[a] difference of opinion [between the parties] as to whether a particular point has or
has not been decided with binding force’: Bosnia and Herzegovina v. Serbia and Montenegro, supra note 19,
at 48.
50
Shany, supra note 14, at 223. Harnon uses the term ‘relative res judicata’: supra note 35, at 560.
51
I will come to discuss these points later. They refer to (a) the difference between international and munici-
pal law, and (b) the difference between public and private law.
52
53
Shany, supra note 14, at 225.
54
In Bosnia and Herzegovina v. Serbia and Montenegro, supra note 19, the ICJ firmly adheres to this orthodoxy:
‘[f]or the Court res judicata pro veritate habetur, and the judicial truth within the context of a case is as the
Court has determined it, subject only to the provision in the Statute for revision of judgments. This result
is required by the nature of the judicial function, and the universally recognized need for stability of legal
relations’: supra note 19, at 53. And any interpretation of the principle is on a case-by-case basis: supra
note 49.
52 EJIL 19 (2008), 43–65
integrative institutional structures. Consequently, res judicata in international law is

not absolute and an international judgment can be subject to annulment, revision,
or setting aside for various reasons.55 This, in turn, may become the, or may invite an
additional, judgment which will be the final res judicata.
Both jurisprudence and discourse of international law have shied away from
addressing ‘appeal’ head on.56 Arguably, in an attempt to avoid ambiguity, a ten-
dency has been prevailing to develop technical terms and procedures to facilitate
exceptions to res judicata by designing special rules for special adjudicative bodies and

emphasizing their uniqueness and, hence, their ‘exceptional’ nature. This has sus-
tained a perception of ‘non-appeal’ (not to be confused with contra- or anti-appeal),
a situation which is circumventing the need to collapse the various techniques into
one procedural category, namely ‘appeal’.57 Consequently, a sense of relative comfort
continues to prevail about the redundancy of recourse to the clarification of the notion
of ‘appeal’.
For instance, while the WTO DSU provides for the broad discretion whereby ‘13.
The Appellate Body may uphold, modify or reverse the legal findings and conclusions
of the panel’,58 it does not further elaborate. At the same time however, the institution
itself, i.e. the WTO AB tribunal, does exactly that in its awards, and is consequently
even said to be contributing to the development of international law. The ICSID has
been contemplating the establishment of an appellate body and recently adopted the
concept,59 although its constituting instrument60 already provides for procedures that
55
Most reasons allowing an exception to res judicata are of a procedural nature, and it is still being de-
bated whether ‘manifest and essential error’, i.e. a finding of misinterpretation of the law, should also
be included. Shany argues that this ground for exception, which is nowhere to be found in conventional
law, does also not qualify as a customary norm of law, and ‘it can hardly be argued that recourse to
the substantive review of judicial errors can be viewed as a general principle of law’: supra note 14, at
247. The constituting document of the WTO DS states that ‘6. An appeal shall be limited to issues of
law covered in the panel report and legal interpretations developed by the panel’: ‘Article 17. Appellate
Review’,Agreement Establishing the World Trade Organization, Annex 2, Uruguay Round Agreement.
Understanding on Rules and Procedures Governing the Settlement of Disputes, available at: www.wto.
org/english/docs_e/legal_e/28-dsu_e.htm (hereafter: DSU). This is indeed very general and puts Shany’s
observation in question. See also Bjorklund (supra note 10), when comparing grounds for annulment
with grounds for appeal throughout her article.
56
I am not concerned here about matters pertaining to standard of review but with the fact of review
per se.
57
I will not elaborate here on the debate surrounding the interface between substantive and procedural
law, which is beyond the scope of this article. It is, however, interesting to note the rhetoric employed to
circumvent this dilemma, e.g. a court is said to be ‘engaging in a more searching analysis of the award
than was contemplated by the applicable standard of review’: Bjorklund, supra note 10, at 501 n. 109
(emphasis added).
58
DSU, supra note 55. It represents a judicial discretion the clarification of which has figured as an ongoing
focus of debate.
59
‘Possible Improvements of the Framework for ICSID Arbitration’, 22(1) News from ICSID (2005) 11/16,
available at: http://www.worldbank.org/icsid/news/news_22-1.pdf, and supra note 3.
60
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (as
Amended and Effective 10 Apr. 2006), available at: www.worldbank.org/icsid/basicdoc/basicdoc.htm
(hereafter: ICSID Convention).
cannot operate without review of the first panel award, and which de facto amount to
an appeal on procedural grounds.61 The NAFTA Chapter 19 Review and Dispute Set-
tlement in Antidumping and Countervailing Duty Matters62 also provides for a limited
review, which is explicitly distinguished from appeal.63 That developing the concept
of appeal is bound to arise as a challenge that international law experts could not by-
pass was recognized already prior to the establishment of the WTO AB and NAFTA:
The choices before us are simple. One alternative is that we have no appeals at all – in the sense

of review of the merits. International society appears to be ready to go one stage beyond that.
Another is that we have the present unregulated and haphazard system – which is developing
empirically without any real planning and may not be entirely satisfactory. The third is that
we go the whole way and try to establish a proper appeals agreement. But if we are to do that,
how is it to be structured? The solution to this last question is so fraught with difficulties that
we may find that, despite its idealistic appeal, it is not a practical alternative.64
B Stare Decisis
I am now turning the discussion to the role of precedent as the other necessary
component of the concept of appeal, a principle which currently is still considered
foreign to international law, consequently rendering the appeal ‘in the sense of
review of the merits’65 indeed – and formally – an ‘impractical alternative’. Appeal
presumes review and review presumes measurement against existing standards.
A standard is an ‘[e]xemplar or measure or weight. … An authoritative or recog-
nised exemplar of correctness, perfection, or some definite degree of any quality. …
61
Ibid., ‘Section 5 Interpretation, Annulment, and Revision of the Award’.
62
NAFTA, supra note 13.
63
‘Although Chapter 19 panel decisions are binding, there is one level of review of binational panel decisions
that a NAFTA government may initiate in extraordinary circumstances. This is known as the Extraordi-
nary Challenge Committee (ECC) procedure. The challenge is not an appeal of right but a safeguard to preserve
the integrity of the panel process. If either government believes that a decision has been materially af-
fected, by either a panel member having a serious conflict of interest, or the panel having departed from
a fundamental rule of procedure or having exceeded its authority under the Agreement, either govern-
ment may invoke review by a three-person, binational Extraordinary Challenge Committee, comprised
of judges and former judges. ECC decisions, like Chapter 19 binational panel decisions, are binding as to
the particular matter addressed’: Extraordinary Challenge Procedure, Ch. 19, Annex 1904.13, NAFTA,
ibid. (emphasis added). NAFTA Ch. 11 on investment provides the parties with a choice of existing con-
ventional procedures for the purpose of setting aside of an award. Thus, NAFTA members which were
not parties to ICSID (then Canada and Mexico) were able to invoke the ICSID Additional Facility Rules on
investment which directed them to a municipal court for the purpose of setting aside of an award, e.g. as
in United Mexican States v. Metlaclad Corp., 89 British Columbia Law Review (2001) 664. For the purpose
of this article, I will contend with these examples and will not discuss the Permanent Court of Justice,
International Court of Justice, other regional courts and tribunals, nor courts in matters of human rights,
international criminal law, and administrative agencies. See also supra note 8.
64
E. Lauterpacht cited in Bishop, ‘The Case for an Appellate Panel and its Scope of Review’, PowerPoint
presentation, King & Spalding, British Institute of International and Comparative Law, 7 May 2004,
at 18 (emphases added). See also Koskenniemi on lawyers’ perception concerning the fragmentation of
international law into self-contained regimes and the resulting ‘loss of an overall perspective on the law’:
supra note 11, at 11.
65
Lauterpacht, supra note 64.
54 EJIL 19 (2008), 43–65
A commodity the value of which is treated as invariable, in order that it may serve
as a measure of value for all other commodities.’66 These attributes of ‘standard’
suggest continuity, legitimacy, certainty – all qualities that congeal and acquire
their value over time. They represent the accumulation of repetitive and consist-
ent experiences, or precedents, leading to the determinative conclusion of a given
standard. Indeed
it would be erroneous to believe that ‘subsequent practice’ of a tribunal that is consistent

with prior practice cannot create expectations among the parties to a treaty. Such decisions,
even if they do not amount to ‘subsequent practice,’ can and do create such expectations.
In turn, those expectations lead to practical actions by parties to a treaty. Indeed, even that
outspoken resister of stare decisis, the Japan-Alcoholic Beverages Appellate Body, admitted
that adopted GATT and WTO panel reports ‘create legitimate expectations among WTO
members.’ … Who could deny that disputants in WTO actions, and indeed the other Mem-
bers observing from the sidelines, typically view adjudicatory outcomes as ‘precedent,’ in
the sense that these outcomes create expectations about acceptable versus prohibited trade
measures.67
If the WTO AB is to review a panel ruling based on issues of law addressed in the
panel report, how can it do so without referring to an existing set of authoritative
standards which, to be sure, represent the law?68 And how do these standards gel
into law if not through repetitive and universal experience? And how can the panel
develop legal interpretations, and the WTO AB follow the instruction to review the
panel’s legal interpretations,69 or the NAFTA Chapter 19 Extraordinary Challenge
Committee perform its function, if there is no standard measurement against which to
interpret the law? The denial of precedent would suggest that the law is ad hoc, capri-
cious, biased, fragmented, unpredictable, perhaps irrelevant because there is nothing
to orient one’s actions to.70 Consequently, the very notion of appeal, of the assessment
and evaluation of a previous ruling, presumes a lineage of decisions which are inter-
connected precisely because of their binding or persuasive nature.71
66
The Shorter Oxford English Dictionary (1968) (emphasis added).
67
Bhala, ‘The Power of the Past: Toward De Jure Stare Decisis in WTO Adjudication (Part Three of a Tril-
ogy)’, 33 George Washington Int’l L Rev (2000–2001) 930 (hereafter: Bhala III).
68
I will leave the discussion of what is law to another time, but suffice it to say that even proponents of the
constructivist and social approach to law ‘as a living law’ do not discard the role of precedent.
69
‘Notwithstanding the efforts of drafters of rules, including the Statute of the International Court of Jus-
tice, the NAFTA, and others to provide that a decision is binding only on the parties and in respect of the
particular case, and has no effect as stare decisis, in fact counsel in an international arbitration cite every
precedent they can find, and arbitrators do try to follow precedents or explain why a particular precedent
is inapt or unpersuasive’: Lowenfeld, ‘Public Policy and Private Arbitrators: Who Elected Us and What
Are We Supposed to Do?’, J.E.C. Brierly Memorial Lecture, McGill University, Faculty of Law, 30 Mar.
2005, at 17 (on file with the author).
70
Koskenniemi indirectly alludes to this sentiment when arguing that ‘the principle of systematic integra-
tion goes further than merely restate the applicability of general international law in the operation of
particular treaties’ (supra note 11, at 209) and addressing the inter-referencing of treaties (ibid).
71
The adherence to a doctrine is per se recognition of established practice, i.e. a lineage of precedents. It
would be redundant to rehash the long list of arguments (including the discussion regarding institutional
balance and design) raised by Bhala (supra notes 29 and 67) which make this point amply clear.
4 The Relationship between Municipal and International

Law
The dissonance between theory and practice in public international trade and
investment law, and in humanitarianist law, has its roots in the ‘love–hate’ rela-
tionship between municipal and international law. Without delving into the the-
oretical discourse,72 I will highlight two focal aspects of this relationship which
require ironing out if the concept of appeal is to be clarified and consequently

contribute to the cohesion of international law. One is of general and overarching
magnitude and has to do with a ‘detached perception of analogy’ and the dilemma
of sovereignty. The other aspect is more specific, flows from the first, and focuses
on the distinction between courts and tribunals, and litigation, arbitration, and
panel hearings.
A The ‘Detached Perception of Analogy’ and the Dilemma of

Sovereignty
There is no denial that when we observe and discuss international relations and
international law, our perception of the world is instructed by our experience with,
and identity as citizen of, the nation state. And although we agree that the interna-
tional arena is different and anarchic, we nevertheless expect it to be ordered as a
system, with some measure of control for the sake of, at least, both our national (col-
lective) and personal certainty and predictability. ‘The global integration of States
requires a more effective “international rule of law”. This can be achieved only by
rendering international law more effective and by interpreting and integrating “the
national rule of law” and “the international rule of law” in a mutually consistent
manner.’73 The only available examples of control are derived from our smaller units
of order, e.g. family, city, region, state. It is from our experience with these systems
that we draw inferences regarding the desirable mode of control at the international
arena. That this orientation towards the municipal – as a standard for the inter-
national – is appealing can be seen in the establishment of, for instance, the WTO
AB. It reflects the desire to satisfy the need for finality also at the international level.
Presumably, developments in international relations and, specifically, the intercon-
nectedness between the international and municipal (liberally referred to as ‘glo-
balization’) have been propelling this shift. Compared with previous international
law-making endeavours that were shy of borrowing the term ‘appeal’ even if the
pursuit of finality (closure) was driving them (e.g. the establishment of the PICJ and
72
I elaborated on this in ‘Towards a Transdisciplinary Discourse’, supra note 24.
73
Hu, ‘The Role of International Law in the Development of WTO Law’, 7 J Int’l Econ L (2004) 166. Accord-
ing to Teitel, the present shift in international law ‘complements the prevailing state-centered approach
and its attention to the protection of state borders with an approach that is predicated on alternative
humanitarian concerns’: supra note 11, at 370. Nevertheless, she cautions that control may be lost in
the process for ‘humanitarianism walks a thin line [and] threatens to “erode the human rights discourse
and value system”’: at 387.
56 EJIL 19 (2008), 43–65
ICJ),74 the recent decade signals a revolutionary change. Thus, while in practice we
do adopt municipal concepts and transplant them into the international legal envi-
ronment, we are still reticent to admit so theoretically. Such confession75 would force
us to face the inherent paradox of our identity as members (citizens) of sovereign yet
distinct collective units.76
The pursuit of reconciling the tension between the national and international is not
new. International law has incorporated domestic law models only with great reluc-
tance, half-heartedly, and therefore in an inconsistent, unclear, and uncertain manner.

This has now become even more complicated, for in the contemporary globalization
discourse attempts to place sovereignty within the so-called post-national interna-
tional system have sometimes been interpreted as identity issues.77 The ensuing fusion
of domestic with international entailed, for instance, the conceptualization of sover-
eignty as a characteristic of the private individual person (both natural and legal),78
as well as the deconstruction of state sovereignty as suggested in the discourse on neo-
medievalism.79 In the former, the alleged sovereignty of the private is stretching the tra-
ditional concept of sovereignty, potentially leading to the consideration of a collective
ultra-national (humanity as collectivity) sovereignty. Extending ‘sovereignty’ ‘down-
wards’ to the micro level might facilitate the transplanting of municipal legal concepts
74
‘The transposition of the appellate function to the international arena is a relatively novel development.
There have been few examples of international tribunals exercising an appellate review over interna-
tional judicial bodies. … Since there is no general guidance in international law on such matters as the
scope of the appellate function the nature of appellate procedures and the role of appellate judges, the
practice in the WTO appellate review is particularly contributory to the development of international
jurisdiction’: ibid., at 164–165. ‘[T]he WTO Appellate Body had few models on which to draw’: McRae,
‘What is the Future of WTO Dispute Settlement?’, 7 J Int’l Econ L (2004) 14.
75
For instance, that ‘[a] closer approximation to a domestic model would mean better transparency
through opening proceedings to the public and a more coherent basis for an intervener or amicus brief
process. It would also mean that the litigation process could be enhanced by the addition of alternate
forms of dispute resolution, such as mediation, as an integral part of the litigation procedures. Or it could
lead to the development of alternate forms of dispute resolution that could take the place of litigation’:
ibid., at 21. It is perhaps noteworthy that the Ontario Superior Court of Justice opined that ‘[m]ost, if not
all, international commitments entail some compromise of sovereignty’: The Council of Canadians, and
Dale Clark, Deborah Bourque, and George Kuehnbaum on their own behalf and on behalf of all members of the
Canadian Union of Postal Workers, and Bruce Porter and Sara Sharpe, on their own behalf and on behalf of all
members of the Charter Committee on Poverty Issues v. Her Majesty in Right of Canada, as represented by the
Attorney General of Canada, Court File No: 01-CV-208141, 8 July 2005, 17. Reported as R. v. Council of
Canadians, 2005 CanLII 28426 (Ont SC).
76
The paradox becomes further pointed when enforcement is being sought. For instance, under the New York
Convention on the Recognition and Enforcement of Arbitral Awards, 1958 (330 UNTS, Art. III, available
at: http://faculty.smu.edu/pwinship/arb-31.htm), the court of the enforcing country must follow a pre-
scribed standard of review. There are, however, ‘deviations’, e.g. the US provides in its Federal Arbitration
Act for an additional ground, namely ‘manifest disregard of the law’: Bjorkland, supra note 10, at 505.
77
Giving rise to the notions of ‘de-bordering’ and ‘post-nationalism’. See also Teitel’s discussion of ‘humani-
tarianism’, especially regarding the shifting interpretation of extra-territorial jurisdiction: supra note 11.
78
C. Cutler, Private Power & Global Authority: Transnational Merchant Law in the Global Political Economy
(2003).
79
Friedrichs, ‘The Neomedieval Renaissance: Global Governance and International Law in the New Middle
Ages’, in I.F. Dekker and G.W. Wouter (eds), Governance and International Legal Theory (2003).
and institutions ‘upwards’, to the inter-national macro level. On the other hand, the
neo-medieval approach, which seeks to reconcile tensions arising from the plurality
of collective state and non-state actors, offers a different mixed re-conceptualization of
sovereignty. Both approaches, however, are reflections of a broader reality in which
the private international commercial Law Merchant (lex mercatoria), with sources in
the Middle Ages – and the burgeoning humanitarianist regime – are de facto trans-
forming international law into what some have termed transnational law.80 These
developments occur in an ad hoc and haphazard (and regime-specific) manner and are

begging for theoretical grounding. The attraction of the municipal model of ‘appeal’,
on the one hand,81 yet ambivalence regarding res judicata and stare decisis as guiding
principles to be carried to their ultimate conclusion in matters of international appeal,
on the other hand, represent a severe handicap to the integrity of the law. In the next
section, I will discuss a specific case of this general tension and how it is affecting the
conception of appeal in public international trade and investment law.
B Courts and Tribunals, Litigation, Arbitration, and Panel Procedure

The discourse on courts and tribunals, litigation, arbitration, and panel procedure
is fraught with ‘myths’, even contradictory ones, which originate in a blurring of
boundaries between the municipal and international realms. While municipal law
distinguishes between courts and tribunals, international law labels adjudicative
bodies inconsistently – sometimes as courts, sometimes as tribunals; and there is
the ensuing myth in international law that courts and tribunals are the same, hence
one may refer to them interchangeably as either court or tribunal. Municipal law
also distinguishes between litigation and arbitration, the latter representing a spe-
cial form of ADR which seeks a solution by way of relaxed adjudication, perhaps
closer to equity,82 and which may take the form of one arbitrator presiding over
the process or a panel of arbitrators doing so. International law adopted this dis-
tinction, but only as window dressing,83 indeed a myth, for in reality international
80
Which consists, at the end of the day, of the incorporation of municipal models within the international
realm, e.g. alternative dispute resolution (ADR) (K.-P. Berger, Formalisierte oder ‘schleichende’ Kodifi-
zierung des nationalen Wirtschaftsrecht. Zu den methodischen und praktischen Grundlagen der lex mercatoria
(1996)) or evidentiary rules from national criminal legal systems.
81
‘Given these concerns [“some extant public scepticism about the wisdom of ad hoc arbitral bodies decid-
ing matters of potential public import”], it is not surprising that calls for a standing “appellate body” for
arbitration are gaining in both volume and vigour’: Bjorklund, supra note 10, (both) at 510.
82
‘An arbitrator is not called upon to make detailed analysis of the legal principles canvassed before him
or to review in any detail the legal authorities cited’: Bingham LJ (as he then was), quoted in Helfer and
Slaughter, ‘What States Create International Tribunals: A Response to Professors Posner and Yoo’, 93
California L Rev (2003) 35.
83
To be sure – only partly. In municipal law, arbitration is arbitration whether the process is governed
by one arbitrator or by a panel of several arbitrators. However, in international law, lawyers have been
distinguishing panel proceedings from arbitration, arguably reiterating the language in the treaty pro-
visions establishing these proceedings. Substantively, there is no essential difference. See also Gal-Or,
‘NAFTA Chapter Eleven and the Implications for the FTAA: The Institutionalisation of Investor Status in
Public International Law’, 14 Transnat’l Organisations (2005) 121 (hereafter: Gal-Or (d)).
58 EJIL 19 (2008), 43–65
arbitration as well as panel procedures have developed as an (imperfect) form of liti-

gation, increasingly distancing themselves from their ADR origins. Certainly, this
is even more the case concerning international criminal tribunals where eviden-
tiary rules play a paramount role. At best, this vocabulary gives rise to confusion.
In municipal law, both theoretical and practical attributes distinguish judges from
arbitrators although they form part of the category of adjudicators. In contrast, in
international law no such theoretical distinction exists, and in practice the differ-
ence between the terms judge, arbitrator, and panellist remains obscure.84 What is

a ‘member’ of the WTO DS panel or AB? Of an ICSID panel? Of a NAFTA Extraor-
dinary Challenge Committee? A judge? An arbitrator? A panellist? What does pan-
ellist mean? Granted, reflecting tensions in the current evolution of international
law, the question nevertheless remains: does such clarification matter at all? Or is
the outcome a myth on authority, devoid of a meaning of what this adjudicative
authority actually represents?
In order to function as an appeal instance, appellate bodies, and the role of those
serving on them, must be clearly defined. In the following, I will address several issues
as examples85 of the questions that require clarification before an authoritative claim
of finality can be made by any of these bodies. For instance, if guidance is to be taken
from municipal law, then one qualifier to be established addresses the architecture of
the legal system: appeal from what instance? In the municipal system,86 appeal is predi-
cated on a hierarchy of courts in a monolithic legal system. That legal system applies
a process that has an internal ‘code’, is uniform and consistent throughout the hier-
archical echelon, providing for rules that integrate the system from the lowest, and up
to the highest, adjudicatory instance. The rules are explicit and detailed – a fact which
has often rendered the system cumbersome, the proceedings lengthy and expensive.
Indeed, these failings were exactly the obstacles to be avoided by an international
trade and investment system governed by an economic rationale and needy of a legal
order. It required a legal order guaranteeing efficiency – time- and money-wise – in
the DS processes, and which would concurrently also accommodate the limitation
arising from the principle of state sovereignty. Therefore, the drafters of recent inter-
national DS mechanisms looked at the municipal ADR model, and not court litigation
84
See Vagts, ‘The International Legal Profession: A Need for More Governance?’, 90 AJIL 250.
85
I am providing here several examples only because an abundant analysis of the problem, and various is-
sues it gives rise to, is easily retrievable in the literature: e.g. Steinberg, ‘Judicial Lawmaking at the WTO:
Discursive, Constitutional, and Political Constraints’, 98 AJIL (2004) 247; Kennedy, ‘Parallel Proceed-
ings at the WTO and under NAFTA Chapter 19: Whither the Doctrine of Exhaustion of Local Remedies in
DSU Reform?’ (2006) (unpublished, on file with the author).
86
For the sake of the argument, and because it is beyond the scope of this article, I am leaving aside the
question of which type of system – civil or common law. For instance, regarding the WTO system it has
been noted that ‘[s]ince the WTO system is a self-contained system of rules codified in the covered agree-
ments, it resembles a civil law code. To the extent that panels and the Appellate Body look beyond the
specific rules of the covered agreements to principles of public international law, their process is more
akin to that of a common law court seeking to ascertain the content of common law’: McRae, supra note
74, at 8.
system, as a template for adoption.87 Consequently, also for the purpose of appeal, the
litigation model was side-stepped in favour of an alternative, non-existent in munici-
pal ADR, hence yet untested system.88
To be sure, in the municipal ADR system which provides for staggered levels of
finality (e.g. within administrative adjudicatory systems), the ultimate authority for
finality still remains within the court system (e.g. contesting the jurisdiction of an
arbitral tribunal). International law drafters, however, have adopted only part of the
municipal system and inserted it within a new appeal formula.89 Thus, they preserved

the ‘lower’ level of the municipal ADR system (e.g. so-called panels for arbitration
procedures as well as other ADR mechanisms),90 recognized the need in an appellate
‘higher’ instance, but reluctant to adopt the court litigation prescription, created a
new hybrid adjudicative instance. These appellate ‘bodies’ (not courts) are expected
to enjoy the same authority as the municipal final court instance, although they have
not been conferred upon the same faculties.91
That a dispute resolution mechanism tailored to satisfy private party needs could be
reformed to meet public party needs, and that a municipal law approach transplanted
to the international level could achieve the same justice outcome as in the municipal
arena, is in itself infused in a paradox. This, however, is not to say that the endeav-
our had failed. On the contrary, it should be assessed as representing a developmental
stage in a process fraught by trial and error, requiring fine-tuning and polishing.92 The
various adjustments to, for instance, the WTO AB, NAFTA Chapter Eleven, and ICSID
87
It should be noted that the ADR system is rooted in the logic of private contract, and administrative, law,
which form an integral part of the municipal system. This is not the case in international law, where until
recently a relatively clear demarcation separated the private from the public realm of law. The distinction
between contract and treaty (concession agreement and bilateral investment treaties (BITs)) is important
in this context, however beyond the scope of this article. See Waelde, ‘The “Umbrella” (or Sanctity of
Contract/Pacta Sunt Servanda) Clause in Investment Arbitration: A Comment on Original Intentions
and Recent’, BIICL Paper (2004) (on file with the author).
88
Another myth consists in attributing a different meaning to terms that largely denote the same thing:
alternative dispute resolution, alternate dispute resolution, and ‘simply’ dispute resolution (dropping the
‘alternative’) which intends (among other things) also to distinguish the approach when employed in the
international, as compared with the municipal, system.
89
Another aspect of finality relates to enforcement, where courts are endowed with powers to enforce the
arbitral award.
90
‘In many respects the international model of dispute settlement has been one of alternative forms of dis-
pute settlement, involving “good office”, conciliation and mediation, and DSU Article 5 provides for such
processes. [and yet it summarises the idea that the WTO, unlike other models, does not make it clear that
its DR is “alternative”]. The place of alternative forms of dispute settlement within the WTO dispute settle-
ment process is unclear. … In this regard, domestic law experience in forms of dispute resolution developed
as an alternative or supplement to litigation needs careful consideration’: McRae, supra note 74, at 9–10.
91
Bjorklund acknowledges this concern as central to the investor–state arbitration system suggesting that
‘the possibility of appeal, of which most losing parties would be likely to avail themselves, would put an
end to any advantage still retained by arbitration’: supra note 10, at 513.
92
‘Should there, then be an appellate tribunal for investor–state or similar arbitrations, along the lines of
the Appellate Body established pursuant to the Understanding on Dispute Settlement of the World Trade
Organisation? There is a good deal to be said for such a suggestion … for a closed system, such as the
three-member NAFTA, creating a standing appellate tribunal would be easier’: Lowenfeld, supra note
60 EJIL 19 (2008), 43–65
rules93 evidence sincere attempts towards reconciling differences and disentangling

the paradox created.
5 Issues to be Reconciled within the New International

Appeal Mechanism94
The new international appeal mechanism must be premised on the recognition that

although, as widely recognized, ‘moral’ authority95 in international relations rests
on foundations different from those governing municipal affairs, the human quest
for justice remains the same. Because sovereignty in international relations coupled
with the absence of a concept of international citizenship represents a challenge to the
task of building an international final authority, it is important to continue the dis-
course on the judicialization of international relations. Has international law gone too
far? Which is more appropriate for the international arena – diplomatic negotiation
or adjudication?96 Were the consensus to tilt in favour of adjudication, it would then
become imperative to develop a system governed by the same standards of fairness as
those in municipal law. At the end of the day, it is not only national collectivities but
the groups and individuals of which they are composed who are the beneficiaries of the
justice system. For them, justice boils down to one basic notion of fairness.97
In the following section, I am listing several issues critical to cementing the interna-
tional appeal mechanism.
• Vertical consistency – res judicata. One overarching issue relates to the structure
of the international adjudicatory environment. As seen in the softwood lumber
dispute, two competing treaties – the global WTO and the regional NAFTA – allow
69, at 23–24. And yet, ‘[a]s an arbitrator, I would like to be able, with my co-arbitrators, to decide the
controversy before us, without finding out a year later that what we had carefully worked out in crafting
our award was overturned by a higher instance that almost certainly had not given as much attention to
the case as my fellow arbitrators and I did. … But in the end, I am stuck with the question …: Who elected
me? Who elected us? Who elected them?’: ibid., at 25.
93
Regarding the WTO AB – enhanced transparency, amicus curiae; regarding the NAFTA Chapter Eleven
– the joint interpretative statement of the Commission (Notes of Interpretation of Certain Chapter 11
Provisions, NAFTA Free Trade Commission, 31 July 2001, available at www.dfait-maeci.gc.ca/tna-nac/
NAFTA-Interpr-en.asp; regarding ICSID see supra note 3).
94
See Koskenniemi regarding the purpose of legal interpretation and reasoning, supra note 11 at 24, 25.
While the report’s second conclusion cautions against rising expectations regarding coherence and co-
ordination – ‘no homogenous, hierarchical meta-system is realistically available to do away with such
problems’ (ibid., at 249), the future work of the Study Group to be based on the Vienna Convention on
the Law of Treaties (available at: http://web.archive.org/web/20050208040137/http://www.un.org/
law/ilc/texts/treatfra.htm), and the emphasis on the further conceptualization of regimes and general
international law, may prove remedial and reformative.
95
In the sense of reflecting norms which encourage voluntary compliance.
96
This discussion is beyond the scope of the article. See, for instance, Steinberg, supra note 85.
97
Franck, supra note 21; ‘Private vs. Public International Justice’ and ‘Outsourcing of Justice’, supra note
21.
for multiple proceedings within their closed systems as well as between the two
systems.98 The outcome contradicts the expectation for justice for it falls foul of
the promise of ADR proceedings to deliver closure, certainty, and efficiency. More-
over, the current state of international trade and investment law sends the parties
back to the municipal system for clarification purposes (US International Trade
Court) and enforcement of awards.99 Nevertheless, because treaties had already
adjusted ADR provisions to meet international requirements, e.g. specifications
limiting the contractual scope of the ‘alternative’ adjudication agreement (juris-

diction),100 it is not inconceivable to consider corrections to treaties addressing, for
instance, choice of forum and type of forum.
In some ways, a choice of forum clause might appear to be problematic, given that WTO tribu-
nals only examine international law, while NAFTA tribunals examine domestic law[101]. … It
certainly makes more sense for parties to an agreement like NAFTA (or the numerous other mul-
tilateral and bilateral trade agreements which Canada and other countries continue to pursue)
to choose to empower one tribunal to resolve all trade-related disputes between the parties.102
Arguably, in the long run, incorporating the principle of lis alibi pendens (postulat-
ing succession and not paralleling of proceedings) and electa una via (regarding choice
of jurisdiction) will move the legal trade and investment DS regime (as well as other
legal regimes) a fraction closer to meeting the onus of the principle of res judicata.103
It may contribute to the establishment of a de facto hierarchy of adjudicative bodies,
based on the types of disputes they are empowered to handle.104 This would be a step
forward towards an eventual legalization (constitutionalization?) of such order.
• Horizonal consistency – stare decisis. Another factor in revamping the international
legal system relates to the need to reform the type of forum. That ‘there is a distinct
98
Other notable examples of parallel and conflicting jurisdictions but which apply to investor–state DS are
the Amco Asia and CME cases thoroughly analysed by Bjorklund, supra note 10.
99
E.g., Sosnow et al., supra note 23.
100
For instance, an essential difference is that in international law the parties to a panel proceeding are
bound by the terms of the treaty governing DS. They do not re-negotiate a new ‘arbitration’ agreement
with every new dispute, as is often the case in municipal law.
101
Which represents yet another problem, namely the empowering of international tribunals to examine
national law.
102
Sosnow et al., supra note 23, at 138.
103
Different tribunals require different adjustments. For instance, the relationship between the WTO AB
negative or reverse consensus rule (barring rejection of decision) and the possibility for overturning WTO
AB decisions (by rendering the consensus obsolete due to amendments to treaty provisions regarding
which the tribunal expressed itself, or by issuing a majority ‘authoritative interpretation’ of the provision
in accordance with Art. IX.2 of the WTO agreement) (McRae, supra note 74) represent yet another area
which will require res judicata relevant correction.
104
An analogy may be the federal court system. ‘Dividing departments of law to match that sort of opinion
[compartmentalization] promotes predictability and guards against sudden official reinterpretations that
uproot large areas of law, and it does this in a way that promotes a deeper aim of integrity [and] allow
ordinary people as well as hard-pressed judges to interpret law within practical boundaries that seem
natural and intuitive’: Dworkin, supra note 17, at 252. Shany makes some relevant suggestions under
‘increased judicial co-operation’: supra note 14, at 278–281). ICSID appellate body drafters were aiming
at exclusivity of this body: Bjorklund, supra note 10.
62 EJIL 19 (2008), 43–65
need to place greater precedent value on NAFTA decisions … [to discourage] unnec-
essary litigation by permitting issues to be tried and re-tried by the same parties
on the same facts and legal issues’105 implies a retreat from ADR in favour of court
litigation, teleology, and an end to public international law’s denial of stare decisis.
ADR’s constitutive principle dictates that whether arbitration or other method
(e.g. facilitation, negotiation, mediation) – each set of proceedings in any par-
ticular case represents an independent unit in itself and bears no consequences
for other cases; none of these various proceedings constitutes a precedent and is

without prejudice regarding any other proceeding. The privacy of the proceed-
ing stipulated confidentiality as a major condition to assure the success of such
a DS approach. Consequently, it has been extremely difficult to access records of
private – and often also public, or public–private106 – ADR awards and settle-
ments. Incorporating the principle of precedent within international DS pro-
cedures will therefore require further adaptation to this aspect of court-style
litigation as well.
• Access – locus standi. Because international DS bodies have already been operating
in a quasi-litigation fashion, calls for broader access to (not just for states and third
parties but also NSAs, and not just as observers but also as participants107), and
transparency of, proceedings, and clarification regarding third party status, have
been mounting. These were reciprocated by some clarifications (de facto amend-
ments) to provisions in existing treaties and ‘access friendly’ jurisprudence.108 But
what is more significant is that they have been incorporated in subsequent agree-
ments. Bilateral trade agreements (BTAs) and BITs as well as regional treaties have
been incorporating provisions regarding access and transparency, and the draft
FTAA represents perhaps the most progressive example.109
• Selection of adjudicators and governance of tribunals. A crucial condition for quali-
fication as an authoritative adjudicatory forum (including at the appellate instance)
for ADR-premised tribunals attaches to the provisions governing the selection of
adjudicators. Again, because the authority of any appeal process – and its promise
of finality – depends on the integrity of the entire system, this process must include
all levels of hierarchy within the same DS apparatus.110 The search for a type of
tribunal that would produce the most effective judicial outcomes has propelled a
105
Sosnow et al., supra note 23, at 139.
106
E.g. in investment disputes.
107
‘WTO dispute settlement contrasts with domestic dispute settlement processes where the dividing line
between public access to pleadings and oral proceedings and the right to intervene and make submissions
is clear’: McRae, supra note 74, at 12.
108
Particularly regarding submission of amicus curiae briefs.
109
Gal-Or (d), supra note 83.
110
It therefore comes as no surprise that the EU and Canada have made suggestions with regard to the
creation of a WTO standing body of professional panellists: ‘Private vs. Public International Justice’ and
‘Outsourcing of Justice’, supra note 21.
literature on the design of courts and tribunals,111 distinguishing between dependent

and independent, complete dependent and constrained dependent, tribunals. For
a judicial decision to be considered effective and fair, and hence enjoy enhanced
chances to be also accepted as final, the institutional design must secure impartiality.
It will therefore set standards addressing, among other things, the judges’112 ‘moral
commitment’ to both international law and the community it represents,113 and
their professional skills in applying the law; it will instruct the judges of the standard
of review to be applied,114 determine their tenure, and so on.115 As repeatedly stressed

in the literature, the judicial outcome116 depends also on the practical adherence by
the parties to their agreement’s design requirements,117 which is a question of poli-
tics, not of law, and to the comportment of the tribunal members118 – which is a
question of both politics and law. While it may well be that institutional design of
international courts and tribunals must not provide for strong review structures,119
it should, however, allow for adjustments. Signatories should be encouraged to,
111
‘Effective’ in the context of this article is interpreted as authoritatively final. Dependent tribunals are ‘ad
hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or
threat of retaliation’, whereas independent tribunals are ‘staffed by judges appointed on terms similar to
those in the domestic courts’: Helfer and Slaughter, supra note 82, at 5–6. The softwood lumber dispute
brings several of these distinctions – and their presumed benefits – into question, e.g. the argument that
bilateral disputes are more suited for dependent international adjudication: ibid., at 42, 43. For lack of
space, I will not comment on this question here.
112
Or arbitrators, panellists.
113
Helfer and Slaughter refer among others to Robert O. Keohane’s classification of dependence: supra note
82, at 9–10.
114
See Raustiala, ‘Form and Substance in International Agreements’, 99 AJIL (2005).
115
‘The most familiar type of review structure is a court. Third-party adjudication strikes many lawyers as
an essential component of a legal system. Yet the international legal system is distinguished by the rarity
of courts and the weakness of those that exist. In practice, most agreements neither create courts nor
employ sanctions as enforcement tools. The dispute settlement clause in many of the agreements that
do contain it has never been invoked. In addition, international courts clearly lack the authority and
coercive bite of domestic courts. Yet the number of international courts is rising. … No matter which the-
oretical approach one favours [to explain choice of structure], the empirical impact of different structures
should be understood. Yet the dearth of research on this topic makes any such claims tentative’: ibid., at
605–606.
116
I refer here to the quality of the judicial decision which, among other things, serves also to induce compli-
ance, and which should not be confused with actual compliance and enforcement.
117
‘Consider the procedures by which states appoint judges and tribunal members. Often these appointment
rules differ radically from the formal appointment rules specified in the agreement establishing the court
or tribunal. The Appellate Body provides a notable example’: Helfer and Slaughter, supra note 82, at 49.
However, the deviation may be intended to enhance independence: ibid. See also Steinberg, supra note
85.
118
C.L. Ostberg and M. Wetstein, Attitudinal Conflict in the Post-Charter Canadian Supreme Court (on file with
the author).
119
‘In general, the analysis here suggests that concerns about reputation, credibility, and uncertainty often
lead states to negotiate international commitments that may be legally binding but are shallow and lack
strong review structures. As a result, compliance with these commitments may be high, but their impact
on actual behaviour is low’: Raustiala, supra note 114, at 609. While Raustiala deplores the ‘overly deep
contract’ (at 613) of the WTO, I locate the major problem in the fuzziness of the contract.
64 EJIL 19 (2008), 43–65
over time, fill in the above-mentioned standards by way of joint interpretations and
clarifications by the parties, and based on their satisfaction with the tribunal’s
jurisprudence.120
• Conflict of interest. A source of pressing concern is the disturbing re-occurrence of
conflict of interest which falls foul of the imperative of legitimacy, independence,
impartiality, accountability, and transparency121 underlying any public adjudica-
tive body and process. Conflict of interest and credibility arise in investment disputes

adjudicated before private tribunals,122 as well as in the context of public invest-
ment and trade DS adjudication.123 In comparison, the municipal court system,
after which international DS apparatuses tend to pattern themselves, stipulates that
judges be excluded from counselling and counsel barred from judging; the judici-
ary is separated from the executive and legislative branches of authority. Indeed,
the WTO AB has addressed this conflict of interest aspect by taking leadership and
adopting a full-time position model coupled with a requirement for qualifications
based on recognized competence and selecting from a pool of candidates which
ranges beyond the club of international trade lawyers and practitioners.124 In brief,
the closer international appeal designs follow the municipal appeal models, the
greater the attention and adherence to clear and acceptable standards governing
conflict of interest.
6 Conclusion
‘The undesirable phenomenon of ambiguity rising from the multiple use of the
same term could be avoided by a new and separate terminology for each and every
120
The lack of democratic legitimacy is, of course, an underlying subject of concern which is raised in mat-
ters ranging from the appointment of judges to the controversy regarding whether judges interpret or
also create law. The American approach of elections of judges is not the sole option and yardstick for
democracy. See Pauwelyn, ‘The Transformation of World Trade’, 104 Michigan L Rev (2005) 1, for a
detailed discussion of these issues including legitimacy and Steinberg, supra note 85, for the role of power
politics in international DS.
121
Principles listed in Mann et al., ‘Comments on ICSID Discussion Paper, “Possible Improvements of the
Framework for ICSID Arbitration”’, International Institute for Sustainable Development (IISD), Dec.
2004, available at www.iisd.org.
122
Howard Mann reports about a 2004 conflict of interest case heard by the Dutch District Court in The
Hague relating to the doubling of functions of a person – once as arbitrator in an investor–state case, the
other as counsel in another case addressing relating legal issues. According to Mann, ‘[t]he Dutch case is
clearly just the first known instance of many such challenges to come’: ‘The Emperor’s Clothes Come Off:
A Comment on Republic of Ghana v. Telekom Malaysia Berhard, and the Problem of Arbitrator Conflict of
Interest’, TDM 2004, available at: [email protected] or www.howradmann.ca, at 5. Similarly, ‘I think
the distrust of arbitrators disclosed in the episode of the NAFTA “clarification” may be well more wide-
spread than we – i.e. the international arbitration community – want to admit’: Lowenfeld, supra note
69, at 16, which raises also issues regarding conflict of interest: ibid., at 17–20.
123
Mann et al., supra note 114, at 13.
124
Ibid. See also New Amendments to the ICSID Rules and Regulations and the Additional Facility Rules,
effective 10 Apr. 2006, supra note 3.
context.’125 In other words, the undesirable phenomenon of ambiguity flowing from

the use of a new and separate terminology for each appeal-like variation and every
generally similar context (e.g. annulment, setting aside, etc.), could be avoided by
admitting to an overarching term, namely appeal. The innovation in the establish-
ment of the WTO AB suggests that finality in the settlement of international trade and
investment disputes is being considered possible both in international law and within
the contemporary international relations. Since its inception over 12 years ago, and
in the course of creating a rich jurisprudence, the WTO AB and other appellate bodies

that followed suit have been increasingly emulating the model of domestic appellate
courts.126 Yet, they have still some distance to cover before reaching the goal of final-
ity, assuming this is their purpose.
In this article, I undertook to discuss the dissonance between theory and practice,
and within theory itself, which renders the international law concept of ‘appeal’ a
misnomer. It feeds on the myth that the DS mechanisms are designed and capable of
securing finality of disputes heard by them, only to be dispelled by the reality of paral-
lel and competing jurisdictions. Undertaking a deductive approach, I first tackled the
teleology of finality from a theoretical angle, and then studied how finality was served
by the prevalent appeal process. Finality provides for closure of a case by definitively
disposing of the case for good. It serves (and is served by) the larger goal of any legal
system, namely consistency, which in turn is the condition upon which the system’s
credibility, and hence legitimacy, are predicated.
Two principles were identified as necessary for finality: res judicata (already recog-
nized in international law as a general principle), which relates to vertical consistency,
and stare decisis (not yet recognized in international law) representing horizontal con-
sistency. In contrast with municipal law, where they form the bedrock of the law’s
integrity within a uniform closed system of which final appeal is the highest authori-
tative instance, the ambivalent application in international law requires explanation.
I argued that the cause of inconclusiveness was to be found in international law’s
mixing and merging of two municipal models based on two different teleologies: court
litigation and ADR. To support this argument, I listed several examples of issues aris-
ing from design (international legislation) and adjudication. I also showed that both
institutional design and adjudicative practice were tilted toward an increased ‘munic-
ipalization’ of international law, with the WTO AB leading the trend.
Currently, the international legal system has evolved in an inconclusive fashion,
replete with partial overlaps of substantive and procedural rules and bodies compet-
ing for ‘supremacy’. A holistic approach to international law, safe from the pitfalls
of discontinuities generated by ad hoc and isolated refinements to the law, calls for a
discussion of the role of finality in public international law, and must precede, at least
accompany, legislative treaty design and the jurisprudential development of the pro-
cedural aspects of appeal.
125
126
See Bjorklund for an analysis of the pros and cons of an appellate body in investor–state disputes: supra
note 10.

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The European Journal of International Law Vol. 19 no.

1 © EJIL 2008; all rights reserved

The Concept of Appeal

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EJIL (2008), Vol. 19 No. 1, 43–65 doi: 10.1093/ejil/chm054

and investment matters, the international community now has an international

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the combination of consistency and integrity.22 However, the recent mushrooming of

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international law rejects horizontal consistency:28 explicit exclusion of the principle of

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3 The Teleology of Finality and Appeal: Res Judicata and

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integrative institutional structures. Consequently, res judicata in international law is

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4 The Relationship between Municipal and International

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A The ‘Detached Perception of Analogy’ and the Dilemma of

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B Courts and Tribunals, Litigation, Arbitration, and Panel Procedure

arbitration as well as panel procedures have developed as an (imperfect) form of liti-

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rules93 evidence sincere attempts towards reconciling differences and disentangling

5 Issues to be Reconciled within the New International

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literature on the design of courts and tribunals,111 distinguishing between dependent

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context.’125 In other words, the undesirable phenomenon of ambiguity ﬂowing from

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