Can an Arbitration Award Be Expropriated? Introductory Note to European Court of Human Rights: Kin-Stib and Majkic v. Serbia
University of West London
July 24, 2010
International Legal Materials, Vol. 49, p. 1181, 2010
The European Court of Human Rights recently ruled that failure to enforce an arbitration award amounts to violation of the right to peaceful enjoyment of possession. This note first summarizes the ruling in Kin-Stib and Majkic v. Serbia and then considers its implications. In particular, it discusses whether an arbitration award can be expropriated by a State by virtue of non-enforcement in domestic courts.
This note concludes that under Kin-Stib and Majkic v. Serbia domestic arbitration awards, or to be more precise the contractual rights crystallized in such awards, are generally capable of being expropriated if the award is final and enforceable as such.
Applying the logic of the case to awards rendered under the ICSID Convention is more nuanced because non-enforcement in one jurisdiction does not fully deprive the award of its value. It is possible to enforce ICSID awards in other jurisdictions and therefore a case-by-case analysis is necessary to determine whether the award can be expropriated.
On the other hand, it appears that the logic of Kin-Stib cannot be applicable to awards rendered under the New York Convention because such awards are unenforceable without formal judicial recognition.
Number of Pages in PDF File: 14
Keywords: ECHR, ICSID, New York Convention, Enforcement of Arbitration Awards, Investor-State Arbitration; International Dispute Resolution, ICSID Convention, International Arbitration, Human Rights; Expropriation
JEL Classification: F21, K33, K40Accepted Paper Series
Date posted: July 24, 2010 ; Last revised: December 20, 2010
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