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ดุลพาห

c. The number of Members of the Appellate Tribunal
and their remuneration; and

d. The cost of appeal.

(c) Concerns with Appeal on Manifest Error of Fact

The three treaties do not specify what standard to be used when
reviewing for manifest error of facts, whether it is a de novo review that allows

broad setting aside of awards with a decision based on whether it merely would
have found the facts different. On the other hand, it is unclear whether the

manifest error standard would preclude setting aside findings of facts unless
the finding is clearly wrong in light of the record reviewed in its entirety. The

problem also arises as to how an Appellate Tribunal would be better situated
than the Tribunal of First Instance to make a determination of fact because it

has not sat through the factual hearing. It is also ambiguous how much power
the Appellate Tribunal will have to examine prior evidence, whether it can

subpoena witness to testify again or is limited to a review of the record only. If
a witness were to testify again, there is a possibility that the second testimony

would be altered to take into account the award of the Tribunal of First Instance.
Therefore, in practice, this ground may be difficult to implement and could
lead to greater number of appeals. Moreover, an appeal of facts appears to

remedy a problem that does not exist because the criticism of ISDS does not

include allegations that tribunals did not appreciate certain facts or accorded
more weight to particular witnesses.

(d) Consiste ncy and Predictability in Outcome

The Appellate Review mechanism is designed to ensure consistency in

the decisions. As discussed earlier, for the CETA and TTIP, there are possibilities
of 125 different individual tribunal forms with the fifteen sitting judges at a
time. The judges may come from differing legal background, common law

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