Review and enforcement of arbitral awards in international investment law and general public international law

Abstract

While arbitral proceedings before an investment tribunal are expensive and relatively long, a final award is not always the end of the dispute between the parties. In arbitrations conducted under the auspices of the International Center for the Settlement of Investment Disputes (ICSID) of the World Bank, the parties may only apply to annul the award before a three-member ad hoc committee the members of which are selected by ICSID from the 'Panel of Arbitrators'. In non-ICSID arbitrations, which include arbitrations conducted under the auspices of the ICSID Additional Facility, the unsuccessful party can (and sometimes does) challenge the arbitral award before the courts of the jurisdiction in which the arbitral tribunal was seated. Thus, a number of cases of pivotal legal and political importance regarding the review of arbitral awards have been brought before domestic courts in the USA, Canada, UK, France, the Netherlands, Singapore, and other jurisdictions. To date, little attention has been paid to the influence that investment tribunals had or could have on the decisions rendered by other international courts and tribunals either generally or regarding the issue of review of arbitral awards. The aim of this chapter is to explore the jurisprudence of ICSID ad hoc Committees and domestic courts in relation to the review of arbitral awards and examine why a 'common law' of review of awards has not yet emerged. For doing so, the chapter will examine the law regulating the review of arbitral awards by the ICJ, domestic courts and ICSID ad hoc committees. Finally, the chapter makes the case for greater cross-fertilization between (i) the case law regarding review of arbitral awards and (ii) other regimes of international law.