BITs and Pieces in International Investment Law: Enforcement of Investment Treaty Arbitration Awards in the Non-ICSID States: The Case of India

Abstract

The ICSID Convention provides for one of the strongest regimes for enforcement of its awards. Consequently, finality of the ICSID awards was rarely disputed in the past. However, recently, there has been a growing sense of investment awards being subjected to challenge by domestic courts. Moreover, this phenomenon is not only confined to investment disputes arising under the ICSID Convention and even amongst non-ICSID states also, taking advantage of the greater space granted to the national law under the New York Convention, the investment treaty awards are subject to unwarranted challenges at the stage of enforcement of awards. It is in this background, taking India as an example, the paper aims to find out how the international investment awards will be enforced in India and what major legal challenges that it will encounter during the process of recognition and enforcement. For this purpose, the paper closely reviews a number of recent and significant Indian rulings on arbitration and notes that the enforcement of such awards faces a number of challenges including interpretative hurdles, multiple jurisdictional claims and parallel proceedings and extreme judicial delays. It finally suggests that the creation of an exclusive legal mechanism for the enforcement of investment arbitral awards will remove the legal impediments associated with the enforcement of the arbitral awards and bring about the desired changes in the expeditious disposal of enforcement cases.