Facilitating Enforcement of International Investment Dispute Awards
Date: 18 May 2017
University of Exeter
PhD in Law
In the current investment climate, most investor-state disputes are settled through investment arbitration. Investor-state arbitration enables the foreign investor to bring a case before a neutral forum, whose decision is binding and enforceable in countries across the world. In instances where the dispute is governed by an arbitration ...
In the current investment climate, most investor-state disputes are settled through investment arbitration. Investor-state arbitration enables the foreign investor to bring a case before a neutral forum, whose decision is binding and enforceable in countries across the world. In instances where the dispute is governed by an arbitration clause, the clause places the disputing parties under the jurisdiction of an arbitral tribunal. In the event of achieving a victory, the investor may nonetheless come up against the obstacle of state sovereignty, even though the state party has ostensibly waived sovereign immunity from jurisdiction. If a state rejects to comply with an award, then investors must commence a worldwide search (forum-shopping), with a view to retrieving the assets that have been awarded. In instances where the state party is victorious, there is a danger that the award payment will not be made if the foreign investor has already declared bankruptcy. Although there are two Conventions (ICSID and the New York Convention) that facilitate the enforcement of arbitral awards, neither one is sufficient to preclude the emergence of the enforcement issue. In both instances, this issue is damaging as it wastes time and money, ultimately contributing to wider inefficiencies and uncertainties in investor-state arbitration. In addressing themselves to this problem and aspiring to the reduction of the obstacle of sovereign immunity from execution, scholars and practitioners have put forward two practical solutions; firstly, a hybrid sovereignty act has been proposed; secondly, it has been suggested that the World Bank could take punitive action, refusing to provide the state party with further loans until the award is resolved. However, these proposals have, to date, not been practically applied or developed. This thesis has two primary objectives: firstly, it attempts to analyse previous solutions that have been addressed to the enforcement issue of ICSID awards: secondly, it addresses itself to two alternatives: 1) that the ICSID Administrative council can review compliance with awards; 2) that countermeasures can be initiated against the failing state under the law of state responsibility (the ILC Articles on State Responsibility). In concluding, the thesis will consider the various advantages and disadvantages associated with each of the aforementioned solutions, ultimately proposing an approach that is best-suited to upholding the interest of the victorious party at the enforcement stage.
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