Page 44 - นิตยสารดุลพาห เล่มที่ ๒-๒๕๖๑-กฎหมาย

ดุลพาห

the ICS would arguably fall under “permanent arbitral bodies”. Permanent
arbitral bodies are rather uncommon and there are only a few that have
been recognised by case law as such. The most famous one is the Iran-United

107
States Claims Tribunal. The permanent nature and judicial structure of the
ICS, including the roster of predetermined permanent Judges and the name
“Court” may cast doubt as to the ICS’s arbitral nature. Therefore, a national

court in one of the New York Convention States may render the Convention
inapplicable and thus endanger the enforcement of the ICS decision.

CONCLUSION

The ICS is an aspirational development in the investment dispute

settlement arena that comes with both advantages and disadvantages. Some
innovations are certainly to be welcomed, particularly when it comes to
ADR. Some aspects, however, are not devoid of criticisms and the ICS raises
a number of complex legal issues. First, the enforcement of decisions of

ICS tribunals outside the territorial boundaries of Contracting Parties may be
subject to challenge. Second, the qualification requirements and restrictions
on the appointment of Tribunal Members and Appeal Tribunal reduce the
pool of qualified adjudicators, eliminate valuable insights from practicing

counsels, and may lead to the politicisation of appointments and appointment
of pro-State adjudicators. Third, the establishment of an appellate mechanism
is flawed in many respects and would inevitably lead to an increase in time
and costs. Fourth, there is no guarantee that the ICS would achieve the

outcome of consistency and predictability as envisaged. Despite these flaws
and questions, it appears that more States are negotiating IIAs containing ICS
and open to the ambitious Multilateral Investment Court and that the ICS

appears to be a direction in the near future.

107. L. Pantaleo, Lights and Shadows of the TTIP Investment Court System, Cleer Papers
2016/1, p. 86 - 87.

พฤษภาคม - สิงหาคม ๒๕๖๑ 33