Exploring the Prospects of a Preliminary Rulings System in ICSID Arbitration: An Efficient and Affordable Alternative to an Appellate System.
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While the regime of investment treaty arbitration has developed enormously over time, there hasn’t been much progress on the introduction of an appellate body or any other form of a review mechanism. Though certain arbitral institutions like JAMS and CPR provide optional appeals provisions, the debate around the introduction of an appeals facility in the International Centre for Settlement of Investment Disputes (ICSID) is still unsettled. This debate is centered around the see-saw between the finality of awards and the desire for consistency and coherence in international arbitration. Some scholars have put forward the view that the finality of awards should take a backseat in this journey of achieving consistency and have thus proposed for an appellate system in the ICSID arbitration. This has attracted a mixed reaction from the legal fraternity with some navigating the ways to implement the appeals system, and the others delving into efficient alternatives. In this paper, the author takes the latter approach and suggests that a Preliminary Rulings System (PRS), as promoted by Katharina Diel-Gligor, should be incorporated into the ICSID arbitration. The paper first suggests certain additional changes to the already proposed system for better efficiency. Thereafter, it establishes that the proposed PRS fulfils all the objectives which are sought to be achieved by an appellate system. Finally, the paper highlights how the system is a better alternative than an appeals facility in ICSID arbitration and suggests it as an efficient and affordable alternative to the appeals system.