Public International Law, Investment Treaties and Commercial Arbitration: an emerging system of complementarity?

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The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards forms the foundation of the modern system of international commercial arbitration. However, it contains no dispute resolution procedure of its own that a wronged party might use to enforce its rights under an arbitration agreement or award. It is generally left to State parties, and particularly domestic courts, to interpret and apply the Convention's provisions competently and in good faith. This can give rise to politicisation and frustration for contractual parties in the pursuit of their international arbitration rights. A series of recent decisions – by investment arbitration tribunals and regional human rights courts – suggests that public international law has a substantial role to play in the protection of international commercial arbitration rights against interference by States and, in particular, their domestic courts. Those decisions demonstrate that international courts and tribunals are increasingly stepping in to ensure the recognition and enforcement of commercial arbitration rights. In doing so, those international courts and tribunals are resorting to principles and remedies that are well-established under public international law. This article analyses and compares a number of recent judgments and awards addressing the relationship between public international law and international commercial arbitration. It examines the approaches taken by some notable recent investment arbitration awards to the protection of commercial arbitration rights under investment treaties. The article also examines the expandingjurisprudence of the European Court of Human Rights in connection with the recognition and enforcement of commercial arbitration awards. The article concludes by observing that the recent jurisprudence demonstrates a growing symbiotic relationship between public international law and international commercial arbitration rights.