Page 39 - นิตยสารดุลพาห เล่มที่ ๒-๒๕๖๑-กฎหมาย

ดุลพาห

or civil law, and may have divergent ruling on issues of similar fact and law.
There is a chance that the Tribunal of First Instance would arrive at divergent

decisions and this raises the issue of whether every case should be appealed as

a matter of course. In the domestic system, not every decision is considered
by the Supreme Court. The EU proposal is that the Appeal Tribunal will
ensure this consistency and predictability. However, one must again look

at the composition of the Appeal Tribunal. In the CETA and TTIP, the Appeal

Tribunal consists of six Judges with a possibility of eight potential different
appeals division consisting of three individuals appointed in a random
manner. Again, there is no assurance of consistency as there is no stare decisis

requirement written in the treaties thus the Appeal Tribunal is not legally

bounded by prior decisions.

Commentators have also expressed concerns as to the potential for

treaty-specific Appellate Tribunals to undermine consistency in international
investment law and how the EU may exert undue influence on its Treaty
Parties. A professor commented:

“[T]he existence of an Appeal Tribunal for each agreement
has the potential to undermine the attainment of more

consistency in International Investment Law as a whole.
It would also seem to present particular problems for

the EU, as different Appeal Tribunals could diverge on
key interpretation issues. One could imagine that the

EU would nominate the same members to different
Tribunals in order to promote consistency. However, this

would be unfair to other Treaty Parties as it would give
the European members undue influence, may affect the

members’ independence and other Treaty Parties may
be unwilling to consent to the appointment of certain

28 เล่มที่ ๒ ปีที่ ๖๕