Part VI The Post-Award Phase, 29 Enforcement of Investment Treaty Awards

2018 ◽  
Author(s):  
Reinisch August
Keyword(s):  
New York ◽  
Ad Hoc ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Recognition And Enforcement ◽  
New York Convention

Investment arbitration between States and private parties is mostly pursued according to the International Centre for Settlement of Investment Dispute (ICSID) Convention and under various institutional or ad hoc arbitration rules leading to arbitral awards, which are regarded as foreign arbitral awards in the sense of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This chapter distinguishes between enforcement possibilities offered by the New York Convention for non-ICSID awards and the special enforcement regime for ICSID awards laid down in the ICSID Convention. In the majority of that fraction of cases in which host States were found to have incurred liability, the awards seem to have been voluntarily complied with.

The (In)Compatibility of Appellate Mechanisms with Existing Instruments of the Investment Treaty Regime

2017 ◽  
pp. 585-627 ◽  
Author(s):  
N. Jansen Calamita
Keyword(s):  
New York ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
The European Union ◽  
New Model ◽  
Investment Treaty ◽  
New Process ◽  
New York Convention ◽  
The Eu

In its recent treaties, the European Union (EU) has established a new model of investor-State dispute settlement (ISDS). The EU’s new model entails the replacement of ad hoc arbitration with standing, treaty-based investment tribunals, staffed with judges appointed by the states parties. Awards produced by the EU’s new process will be subject to appellate review on issues of law and fact. The EU has indicated that it will pursue a treaty to multilateralize its new tribunal system. This article addresses the compatibility of the EU’s new ISDS model with existing instruments of the investment treaty regime: first, whether the introduction of an appellate mechanism or, indeed, the total reworking of ISDS to establish investment tribunals, renders instruments like the ICSID Convention and the New York Convention inapplicable to the modified process of ISDS; second, how the integration of any appellate mechanism with existing international investment treaties might technically be achieved.

BITs and Pieces in International Investment Law: Enforcement of Investment Treaty Arbitration Awards in the Non-ICSID States: The Case of India

2013 ◽  
pp. 198-239 ◽  
Author(s):  
S. R. Subramanian
Keyword(s):  
New York ◽  
International Investment ◽  
International Investment Law ◽  
Investment Treaty ◽  
Legal Challenges ◽  
Domestic Courts ◽  
Recognition And Enforcement ◽  
Investment Law ◽  
New York Convention ◽  
Legal Mechanism

The ICSID Convention provides for one of the strongest regimes for enforcement of its awards. Consequently, finality of the ICSID awards was rarely disputed in the past. However, recently, there has been a growing sense of investment awards being subjected to challenge by domestic courts. Moreover, this phenomenon is not only confined to investment disputes arising under the ICSID Convention and even amongst non-ICSID states also, taking advantage of the greater space granted to the national law under the New York Convention, the investment treaty awards are subject to unwarranted challenges at the stage of enforcement of awards. It is in this background, taking India as an example, the paper aims to find out how the international investment awards will be enforced in India and what major legal challenges that it will encounter during the process of recognition and enforcement. For this purpose, the paper closely reviews a number of recent and significant Indian rulings on arbitration and notes that the enforcement of such awards faces a number of challenges including interpretative hurdles, multiple jurisdictional claims and parallel proceedings and extreme judicial delays. It finally suggests that the creation of an exclusive legal mechanism for the enforcement of investment arbitral awards will remove the legal impediments associated with the enforcement of the arbitral awards and bring about the desired changes in the expeditious disposal of enforcement cases.

scholarly journals Dallah: the death knell for deference?

2021 ◽  
Author(s):  
◽  
Anastasia Lee Fraser
Keyword(s):  
New York ◽  
United Kingdom ◽  
Supreme Court ◽  
De Novo ◽  
Commercial Arbitration ◽  
English Court ◽  
Arbitral Award ◽  
The United Kingdom ◽  
Recognition And Enforcement ◽  
New York Convention

<p>This paper examines the decision of the United Kingdom Supreme Court in Dallah Real Estate and Tourism Holding Company v The Minister of Religious Affairs, Government of Pakistan, a rare case where an English court refused enforcement of an international arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).  Although in Dallah the United Kingdom Supreme Court acknowledged the trend to limit reconsideration of the findings of arbitral tribunals in fact and in law, the Court considered it was bound to decide the question of validity de novo. Contrary to the tribunal, the Court held the arbitration agreement was not valid under the law to which it was subject and refused enforcement of the arbitral award.  This paper analyses how the English Supreme Court decided the legal issues before it. It concludes the English court could have reached the same decision on a more convincing basis. Even where the issue is initial consent, holding the court at the place of enforcement is always bound to decide a matter de novo neither serves the objectives of international commercial arbitration nor is necessary to promote the fundamental integrity of arbitral proceedings.</p>

Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

2020 ◽  
Author(s):  
Sester Peter
Keyword(s):  
New York ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

scholarly journals The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution

2019 ◽  
Vol 9 (2) ◽  
pp. 195-205 ◽  
Author(s):  
Eunice CHUA
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Critical Analysis ◽  
Trade Law ◽  
International Trade Law ◽  
Settlement Agreements ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Brighter Future

AbstractOn 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) and amendments to the Model Law on International Commercial Mediation prepared by Working Group II. These instruments aim to promote the enforceability of international commercial settlement agreements reached through mediation in the same way that the New York Convention facilitates the recognition and enforcement of international arbitration awards. This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.

Emergency Arbitration: Mere Innovation or Vast Improvement

2019 ◽  
Vol 35 (4) ◽  
pp. 441-472
Author(s):  
Rania Alnaber
Keyword(s):  
New York ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Arbitration ◽  
The Future ◽  
New York Convention ◽  
Interim Measures ◽  
Specific Concern

Abstract Effectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.

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