Enforcement of Arbitral Awards Against States and State Entities

Abstract

A PERCEIVED advantage of international arbitration as compared with litigation is the ‘transportability’ of arbitral awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the ‘New York Convention’), or under the Washington Convention on the Settlement of Investment Disputes 1965 (the ‘ICSID Convention’), in the case of investment disputes submitted to arbitration thereunder. On the basis of anecdotal evidence at least, it appears that currently the vast majority of international arbitration awards are complied with voluntarily, presumably due to the availability of enforcement mechanisms and negative publicity which would result from non-compliance. Furthermore, success rates in relation to enforcement of awards through the domestic courts pursuant to the New York Convention have historically been excellent.1 As the number of BIT claims increases there will inevitably be more instances of awards not being paid voluntarily; this is perhaps more likely where the issues behind underlying...