Page 27 - นิตยสารดุลพาห เล่มที่ ๒-๒๕๖๑-กฎหมาย

ดุลพาห

noted that the qualifications of a candidate was just one
factor that come into play. When the ICC was established,

the Assembly of State Parties valiantly tried to keep its

judicial elections from following the model UN courts,
59
but it was not successful.”

These concerns are more significant in the context of investment
disputes where States that eventually would be parties to a dispute would
have an additional advantage in the selection of judges over the foreign

investors. This could mean that foreign investors are more likely to enter into

individual contracts with the host States providing for arbitration rather than
risk taking their dispute to the ICS where they have no say in the selection of
judges. Moreover, the appointment by States would possibly mean that Tribunal

Members might tend to make decisions favouring the State party as a result

of appointment through Contracting States only, undermining the balance
between States and investors.

In looking at the appointment for the CETA Tribunal, five judges
would be selected by 27-Member States of the EU. Certain States, such as the
Netherlands, support the ICS while others such as Eastern European States are

not in favour. Ten provinces in Canada ranging from Quebec to British Columbia

would also have to appoint five judges. In addition, five judges would have to
be commonly selected by the EU and Canada. One can imagine the political
challenges that would ensue in the selection of judges and possibility for

political deals that could be made as in other international courts and tribunals.

One rationale behind a permanent Tribunal is to ensure consistency

and predictability, which is considered a criticism of the ad hoc ISDS regime.

59. Brandeis Institute for International Judges, Towards an International Rule of Law, p. 37.

16 เล่มที่ ๒ ปีที่ ๖๕