Enforcement of Arbitral Awards: "To ICSID or Not to ICSID" Is Not the Question - Chapter 8 - Investment Treaty Arbitration and International Law - Volume 5
Freya Baetens, Assistant Professor, Leiden University
Up to the Second World War, private individuals and companies were rather poorly protected by international law. The few rights which they did possess (for example the right to compensation for expropriation) could only be enforced if their home State was willing to risk souring its international relations, by taking up their plight via diplomatic protection. This dramatically changed with the conclusion of, on the one hand, numerous human rights treaties and, on the other hand, a growing number of bilateral investment treaties (BITs) – both of which offer individuals substantive protection as well as procedural weapons to enforce their rights against offending States. Individuals have indeed seized upon these significant possibilities by initiating cases at an exponentially increasing rate before regional human rights courts as well as investor-State arbitral tribunals. These adjudicatory bodies have in most cases done a remarkable job of weighing the interests of the individual against those of the State, rejecting unreasonable complaints but, when faced with substantiated allegations, offering remedies to repair the damage suffered by private parties. This is the point where law students might close the book, all's well that ends well, justice has been done. But has it?