Who Sits on the Appeal Bench? Criteria, Independence, and Politics:

WTO Lessons for UNCITRAL Reform

Nguyen Luu Lan Phuong

 

ABSTRACT: As international dispute settlement undergoes critical reform, UNCITRAL’s proposal to establish a standing appellate mechanism for investor-state disputes raises foundational questions about institutional design. The collapse of the WTO Appellate Body, once praised for enhancing legal consistency, has revealed how vague qualification criteria, politicized reappointments, and insufficient safeguards can undermine legitimacy. While UNCITRAL’s Draft Statute introduces procedural advances - such as term limits and voting-based appointments - it retains structural vulnerabilities, including non-binding diversity standards, ambiguous disclosure obligations, and limited oversight over conflicts of interest. This paper examines these risks through a comparative analysis of the WTO and UNCITRAL frameworks, drawing on legal interpretation and scenario-based stress tests to assess how appointment mechanisms influence adjudicator independence, representativeness, and system resilience. The findings identify three key fault lines: reputational selection models that concentrate power among elites, voting structures prone to geopolitical dominance, and the absence of enforceable procedures to assess and manage conflicts of interest. To address these challenges, the paper proposes institutional reforms grounded in comparative practice, including binding regional seat allocations, a fallback roster of vetted candidates, and a transparent screening process for adjudicator appointments. These recommendations aim to embed structural safeguards that reduce political obstruction and enhance legitimacy, offering UNCITRAL a path toward building a more credible and resilient appellate system.