In my previous post I took issue with what appears to be the basic premise of super-arbitrator Kaufmann-Kohler's approach to creating a multilateral investment court: because of the overriding importance of maximum enforcement instruments for investors, a multilateral tribunal can't deviate too much from "arbitration"; otherwise, enforcement under the New York Convention (UNCITRAL) and/or Washington Convention (ICSID) is put in question.
Now I want to address some of the features of the Kaufmann-Kohler approach that flow, directly or implicitly, from that premise. One of these is that a multilateral tribunal should not be an international court governed only by public international law (paragraph 104). A great advantage of public international law being the sole applicable or governing law is that one can confidently appoint judges whose primary qualifications are in public international law and/or public law more generally, and can dispense with persons from the old arbitrator/counsel elite who have arcane expertise is concepts like that the law of the seat or the governing law of the arbitration.
Another feature of the Kaufmann-Kohler approach is to tempt UNCITRAL to become involved in coordinating states' efforts in pursuing reform of ISDS (paragraph 75). UNCITRAL is a UN institution that is deeply embedded in the commercial law and the arbitration fields rather than in the public international law world. It took 7 years from the time that an NGO, IISD, proposed that UNCITRAL move to introduce transparency in arbitration to get agreement on what seems like an obvious requirement of a legitimate adjudicative system. Throwing the project of radical reform of ISDS as a whole into UNCITRAL is like throwing it into a bottomless pit.
Perhaps most worrying, except that EU Commissioner for Trade Malmstrom has made it clear that an appeal mechanism is a logically required part of a legitimate adjudicative system for investment, is the way in which Kaufmann-Kohler tries to wean reform enthusiasts away from the idea of a full appeals instance. Citing costs and delays, she proposes an alternative idea, "preliminary rulings." This idea is splendidly design to appear to provide consistency and certainty in legal interpretation, while all the while allowing a single instance to control the whole process. Under the Kaufmann-Kohler proposal, it would be in the hands of the panels of first instance to determine that they need a preliminary ruling on some legal issue, before they proceed to apply the law to the facts. The parties to the dispute would have no entitlement of any sort to the supposed certainty to be obtained by such a ruling; it would be entirely the prerogative of the panel of first instance themselves to decide whether the law needs to be clarified (paragraph 130). And who would clarify the law for the panel of first instance? Why, it just might be not a "separate body" but a special chamber of the pool of first instance adjudicators themselves! It seems there is nothing that that the investment arbitrator/counsel elite want to avoid more than genuine accountability to an appellate instance where the judges are appointed separately and sit above and quite autonomously from the first instance,therefore are undeterred in scrutiny of prior case law by "collegial" considerations and have the hierarchical authority of a high court.
Now comes the perhaps the most devious suggestion of all by Kaufmann-Kohler (paragraph 263): states could be allowed to declare that the multilateral investment court is merely an additional forum to which resort may be had alongside traditional investor-state arbitration. In other words, the multilateral court, instead of providing a solution to forum shopping by investors by creating a unified judicial system, could be operated simply to enhance their forum-shopping opportunities! One thing not in short supply among the investment arbitrator/counsel clique is chutzpah.
