In a recent article published in the ICSID Review, Professor Bermann examines the various positions that courts and commentators have taken on the susceptibility of ICSID awards to judicial review by national courts at the enforcement stage. He argues that a correct understanding of Article 54 of the ICSID Convention should lead to the conclusion that “a national court before which an ICSID award is brought for enforcement is expected to impose only the procedural requirements that it analogously imposes on the enforcement of court judgments rendered in that jurisdiction”.
As is usual with his writings, Professor Bermann’s analysis is insightful and persuasive. He draws support from various sources including the treaty text, State practice and the negotiating history of the ICSID Convention. In this respect, he observes that “the drafters discussed but ultimately rejected the idea of importing into the ICSID Convention the New York Convention’s grounds for denying enforcement of awards or the grounds on which any other award could be denied enforcement”. That is, as he submits, how the specific text of Article 54 came about.
In this contribution, we draw upon Professor Bermann’s analysis to address a distinct yet related question: can an ICSID award be enforced under the New York Convention where the special regime of Article 54 of the ICSID Convention does not apply? This question, which Albert Jan van den Berg has termed the “residual application of the New York Convention”, is not discussed by Professor Bermann.