Chapter 20: An Empirical Case for Extending Standing Panels in Investor-State Arbitration

in International Investment Treaties and Arbitration Across Asia
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This chapter evaluates the use of standing panels in investor-state arbitration (isa) through a review of literature and a survey of recent investment treaties, including the China-Australia Free Trade Agreement (ChFTA). While standing panels are often presented as a solution to flaws associated with isa, they are frequently limitedly developed. This article argues for developing an empirically verified structure to support standing panels in isa, including the selection of arbitrators for inclusion on panels, their appointment as isa arbitrators, and the manner in which they reach decisions. It explores the development of in-house standing panels in the ChAFTA compared to external standing panels such as under the icsid Rules and the ad hoc appointments of arbitrators. It contends that institutional biases in selecting and appointing panellists from both internal and external lists, and decisional biases attributed to arbitrators, are not reasons to avoid standing panels. It argues, too, that both internal and external panels are preferable to ad hoc appointments by disputing parties. It concludes that institutional biases are factors to consider in devising an effective structure for standing panels, together with transparent procedures to regulate the selection and appointment to, and management of, such panels.

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