Potential Enforcement Mechanisms for Decisions of a Multilateral Investment Court

Abstract

In recent years, demands for reforming investor-state arbitration have become louder. One of the rather incisive proposals in this regard is to set up a Multilateral Investment Court (MIC). Because of the still early stage of development there is much room for the unprejudiced expression of ideas and suggestions regarding its organisational structure. This article aims to contribute to this process and intends to identify possible arrangements for effective enforcement mechanisms for the decisions of the MIC. The present paper will therefore look at the different ways in which decisions of an MIC could be enforced. Part B will deal with the question whether existing conventions concerning the enforcement of arbitral awards or the international enforcement of judgments should and could be used for the enforcement of MIC decisions. Part C will then address the possibilities of creating new international instruments or agreements for the enforcement of MIC decisions aiming at obliging not only MIC members but also third states to enforce MIC decisions. The options to be addressed include establishing an MIC Statute containing provisions on the enforcement of MIC decisions, the creation of a new international convention along the lines of the New York Convention, the ICSID Convention, or existing conventions on the international enforcement of judgments. Additionally, the advantages and disadvantages of agreeing on additional protocols to existing conventions are discussed. A further, however entirely different approach will then be addressed in the last part: MIC decisions could be enforced by using a (yet-to-be-created) fund system following the example of the Iran-US Claims Tribunal. MIC members would have to pay a certain sum into that fund and if a decision against an MIC member is issued, the investor can—under certain conditions—obtain money out of/from the fund. However, this is followed again by questions of enforcement.