Compliance and Enforcement of Awards: Is There a Practical Difference between ICSID and Non-ICSID Awards? - Chapter 9 - Investment Treaty Arbitration and International Law - Volume 5
Sylvia T. Tonova
PDF from "Investment Treaty Arbitration and International Law - Volume 5"
Sylvia Tonova, Associate, White & Case
Originally from Investment Treaty Arbitration and International Law - Volume 5
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention")1 is often seen as setting forth a superior regime for compliance and enforcement of investment arbitration awards, particularly against States, as compared with other regimes for enforcement of such awards, such as, for example, the regime under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention").2 The ICSID Convention is said to offer three advantages for compliance and enforcement of awards rendered pursuant to its terms: (i) the State party to an ICSID award has an international obligation to comply with the award; (ii) all Contracting States to the ICSID Convention are obligated to recognize an ICSID award as binding and to enforce the pecuniary obligations arising out of the award as a final judgment of a State’s courts; and (iii) the ICSID Convention establishes a delocalized, self-contained mechanism for review of ICSID awards, eliminating any review of the award by national courts.
Recent developments, however, have raised questions about the perceived superiority of ICSID awards. Certain States, notably Argentina, have resisted compliance with ICSID awards, insisting that ICSID award creditors present their awards to Argentine courts for enforcement.3 ICSID ad hoc committees have annulled awards against Argentina4 at the same time as awards rendered against Argentina under the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL Arbitration Rules") have been confirmed by U.S. courts, paving the way for their enforcement.5 Observers thus might legitimately question whether there is a practical difference in the compliance and enforcement of investment arbitration awards rendered pursuant to the ICSID Convention ("ICSID awards") and investment arbitration awards rendered outside the scope of the ICSID Convention in arbitrations conducted under the UNCITRAL Arbitration Rules, the ICSID Additional Facility Rules6 or the rules of other arbitral institutions such as the International Chamber of Commerce or the Stockholm Chamber of Commerce ("non-ICSID awards").