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ดุลพาห

(3) Appellate Review

(a) Appeal Mechanism

The Appeal Tribunals are given a right to render final decisions

85
substituting the provisional award with their own legal findings and conclusions.
For example, Article 29 (4) of the TTIP provides “If the appeal is well founded,
the Appeal Tribunal shall modify or reverse the legal findings and conclusions

in the provisional award in whole or in part. Its decision shall specify precisely

how it has modified or reversed the relevant findings and conclusions of the
Tribunal.” However, the treaties are not clear as to under which circumstances
the matter must be referred back to the Tribunal of First Instance. Although

such an option is not expressly provided in the TTIP, the EU-Vietnam FTA

grants the Appeal Tribunal the right to refer the matter to the tribunal where
it is not possible for the Appeal Tribunal to “apply its own legal findings
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and conclusions to such facts and render a final decision on the matter.”
The CETA differs from the other two treaties in that it sets a 90-day period

which must elapse from the issuance of the Appellate Tribunal’s award before
it can become final, as the Appellate Tribunal may refer the matter back to
the Tribunal of First Instance within this time frame. If the Appeal Tribunal
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rejects the appeal, the Tribunal award becomes final. 88

(b) Grounds for Appeal

The three treaties grant Appellate Tribunal broad jurisdiction, giving
them competence issued by the Tribunal of First instance on a number of

grounds. The grounds for appeal include:

85. Articles 8.28(2) and 8.28(9) of the CETA; Article 28(4) of the EU-Vietnam FTA; Article 29(2)
of the TTIP.
86. Article 28(4) of the EU-Vietnam FTA.
87. Article 8.28(9)(c)(iii) of the CETA.
88. Article 8.29(c) (i) of the CETA; Article 29(2) of the EU-Vietnam FTA; Article 29(2) of the TTIP.

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