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(c) Drawback of System

The restriction of Tribunal Members from serving as counsel may
severely restrict the pool of Tribunal Members and reduce diversity. This is
likely to lead to the appointment of only academics or retired judges.

Counsels often bring beneficial viewpoints that can bring counterbalance to

a tribunal. A Tribunal Member with experience as counsel can bring a
viewpoint particularlywhen it comes to procedural issues. Arbitrators find it
useful to have one member of the tribunal to have a counsel with practical

experience who has put together cases.

(4) Appeal Tribunal

The new investment chapters propose a two-tiered judicial system by
establishing permanent courts consisting of a Tribunal of First Instance and an

Appeal Tribunal. To aim is to ensure consistency and predictability of decisions.

(a) Composition of Appeal Tribunal

Under the TTIP Proposal, the Appeal Tribunal consists of six members,
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appointed for six years, and renewable once. Two nationals of a Member State
of the EU, two nations of the United States and two nationals of third States. 68

The EU-Vietnam FTA also sets up an Appeal Tribunal comprising six Members :
two nationals of a Member State, two nationals of Vietnam and two nationals
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of third States. However, the term of their appointment is fixed for four years,
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renewable once. The CETA, on the other hand, does not provide much detail
on the constitution of the Appellate Tribunal. It merely states that the Appellate
Tribunal is appointed by a decision of the CETA Joint Committee.
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67. Articles 10(2) and (5) of the TTIP.
68. Articles 10(2) and (5) of the TTIP.
69. Article 13(2) of the EU-Vietnam FTA.
70. Article 13(5) of the EU-Vietnam FTA.
71. Article 8.28(3) of the CETA.

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