Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining Elements

Abstract

This paper explores whether a decision rendered by an international investment court or similar body would be enforceable in the courts of third States as a ‘foreign arbitral award’, pursuant to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After asserting the premise that an investment court would be harmonious with States’ existing obligations under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), this paper reviews salient aspects of the New York Convention’s travaux preparatoires, and its use to enforce the decisions of bodies that challenge assumptions concerning what features make an award ‘foreign’ and ‘arbitral’. The paper then charts a new path by gauging the meaning of ‘arbitration’ in international economic law, in light of its widely ratified usage decades later in the distinctive arbitral procedures of the World Trade Organization (WTO). Drawing from this variety of contexts, the paper concludes by linking the interim arbitration mechanism adopted by some WTO members in April 2020 to the institutional body that may yet emerge from UN Commission on International Trade Law (UNCITRAL) negotiations on the reform of investor-State dispute settlement (ISDS).