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ดุลพาห

(b) Qualification of Members of Appeal Tribunal

Members of the Appellate Tribunal under the TTIP and the
EU-Vietnam FTA must meet a higher threshold to qualify as the Members of
the First Instance Tribunal, namely qualification required for appointment

to “the highest judicial office.” The TTIP Proposal and the EU-Vietnam

FTA provide :

“The Members of the Appeal Tribunal shall have

demonstrated expertise in public international law, and
possess the qualifications required in their respective
countries for appointment to the highest judicial offices

or be jurists of recognised competence. It is desirable

that they have expertise in international investment law,
international trade law and the resolution of disputes
arising under international investment or international

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trade agreements.”

The CETA simply requires that Members of the Appeal Tribunal meet

the same eligibility requirements as Members of the Tribunal and comply

with ethics obligations. Cases are to be heard in divisions consisting of three
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Members of the Appellate Tribunal and the composition of each division is
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random and unpredictable. It should be noted that the Appellate Tribunal
can examine both legal and factual issues which is not part of the common

law legal tradition. This could pose some problems when it comes to the
Appellate Review, which will be discussed further below.

72. Article 13(7) of the EU-Vietnam FTA; Article 10(7) of the TTIP.
73. Article 8.28(4) of the CETA.
74. Article 5 of the CETA; Articles 14(8) and 14(9) of the EU-Vietnam FTA; Articles 10(8) and
10(9) of the TTIP.

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