Introduction to the Enforcement of Arbitral Awards Against Sovereigns - Chapter 1 - Enforcement of Arbitral Awards Against Sovereigns
R. Doak Bishop is a Partner in the Houston office of King & Spalding LLP. Mr. Bishop has over 27 years experience focusing on international arbitration and litigation of oil and gas, energy, construction, and environmental disputes. He has developed a national reputation for his experience in international arbitration, serving both as an arbitrator and counsel in large business disputes.
Mr. Bishop presently serves as Vice Chairman of the Institute of Transnational Arbitration and as a member of the U.S. delegation to the NAFTA Advisory Committee on Private Commercial Disputes. He has previously served as Chairman of the Litigation Section of the State Bar of Texas (1998) and Co-Chair of the American Bar Association International Litigation Committee (1998-1999). His experience in litigation and arbitration includes international litigation and arbitration, oil & gas and energy disputes, construction disputes, environmental disputes, and high technology disputes
Mr. Bishop received his B.A. degree with high honors and departmental distinction from Southern Methodist University in 1973, and his J.D. degree with honors from The University of Texas in 1976 where he served as Research Editor of the Texas Law Review.
Originally from Enforcement of Arbitral Awards Against Sovereigns
Introduction to the Enforcement of Arbitral Awards Against Sovereigns
The past decade has seen a veritable explosion of investment treaty and other arbitration claims brought against sovereigns. Many of those cases have been filed before the International Centre for Settlement of Investment Claims (ICSID), which has its own self-contained rules for enforcement. Given this significant increase in sovereign cases and the issues attendant to sovereign immunity, this treatise is timely in addressing the various issues that arise in enforcing arbitral awards against sovereigns.
One of the first questions posed to their counsel by clients considering the initiation of an arbitration proceeding against a sovereign state is whether and how the resulting award can be enforced. The origin of the client’s question is usually based on some knowledge that a state possesses sovereign immunity, along with an uncertain concern about the exceptions to such immunity and the difficulties of enforcement against a sovereign’s assets. This uncertainty is understandable, especially in light of the sometimes confusing and even contradictory court decisions in certain jurisdictions. It is these inquiries in their broadest application that form the subject of this treatise.
Ultimately, the value of international arbitration as a means of resolving disputes is dependent upon the extent to which awards are either honored or can be enforced. Few claimants will pursue a time consuming and often expensive process of dispute resolution just for the principle of establishing a point. An award has legal meaning and consequences, and it is generally pursued for practical ends.
Although there are real legal obstacles to enforcing an award against a sovereign, those obstacles are limited to the means of obtaining enforcement and the types of assets against which enforcement may be sought. But those obstacles do not diminish the legal effect or the moral force of the award, with which the sovereign is legally obligated to comply. There is no right in international law of non-compliance with a final and binding award that has not been properly annulled or vacated.