States have traditionally preferred the finality of investor-state awards, in preference to “consistency and correctness.” Following the decisions in SGS and Lauder, however, commentators have argued that “consistency and correctness” ought to outweigh finality. In this article, it is argued that, based on the available evidence, the “tide has not turned”: states and investors continue to prefer finality over consistency and correctness. It is further argued that, based on this position, reform ought to be considered to seek to protect the finality of investorstate arbitral awards. It is submitted that this reform can be achieved through the creation of an Additional Annulment Facility and the issuing of an “interpretive note” by the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID) Administrative Council.
Journal of International Arbitration