Gabrielle Kaufmann-Kohler, Professor, University of Geneva; Partner, Schellenberg Wittmer, Geneva. She is President of the Swiss Arbitration Association and former Chair of the Court of Arbitration for Sport, Olympic Division.
The question that the organizers of the IAI-ASIL Conference have asked me to address is set out in the title of this contribution: is the ad hoc committee’s review different if the arbitration giving rise to the request for annulment is based on an investment treaty or an investment contract? The answer is threefold: Yes, no, and maybe. No, because the annulment process is the same: same grounds for annulment, same scope of review, same procedure. Yes, because different issues justify different standards of review. Maybe, because different interests and policies in treaty disputes may call for some structural changes to the traditional arbitration mechanism.
This contribution first reviews the “no part” of the answer (section I), which is divided into three sub-answers: scope of review (subsection A), grounds for annulment (subsection B), and procedural rules (subsection C). It then proceeds to discuss the “yes part” (section II), which addresses the two areas where different issues may arise, i.e., jurisdiction (subsection A) and applicable law (subsection B). It finally concludes with the “maybe part” of the answer (section III), which examines the need for transparency of the process (subsection A) and for consistency of the decisions (subsection B).