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ดุลพาห

“(a) that the Tribunal erred in the interpretation or
application of the applicable law;

(b) that the Tribunal has manifestly erred in the
application of facts, including the appreciation of relevant

domestic law; or

(c) those provided for in Article 52 of the ICSID Convention,
in so far as they are not covered by (a) and (b).” 89

The grounds for annulment in the Article 52 of the ICSID
Convention are : (1) the Tribunal was not properly constituted; (2) the Tribunal

has manifestly exceeded its power; (3) there was corruption on the part

of a member of the Tribunal; (4) there has been a serious departure
from a fundamental rule of procedure; and (5) the award has failed
to state the reason on which it is based.

Under the three treaties, the Appellate Tribunal would not only have
the additional power to reverse an arbitral award based on an error of law or

a manifest error of fact, it would also have the power to “modify” an award,

which is a power not available to an ad hoc ICSID Annulment Committee.
90
Some elements of the ICS, particularly surrounding the Appellate

Tribunal, could not be agreed during the CETA negotiations. Therefore, the
EU and Canada agreed for the Joint Committee to resolve those outstanding
issues. These include:
91

a. The procedure for the initiation and conduct of
appeals, including referring issues back to the Tribunal;

b. The procedure for filing Appellate Tribunal
vacancies and constituting that Appellate Tribunal;

89. Article 8.28(20) of the CETA; Article 28(1) of the EU-Vietnam FTA; Article 29(1) of the TTIP.
90. Article 52(3) of the ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules).
91. Article 8.28(7) of the CETA.

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