International Review of Decisions Concerning Recognition and Enforcement of Foreign Arbitral Award: A Threat to the Sovereignty of the States or an Overestimated Hazard (so far)? (With Emphasis on the Developments within the International Investment Arbitration Setting)

Abstract

The article explores the possibilities of review of the decisions of national courts pertaining to the recognition and enforcement of foreign arbitral awards by the international investment arbitration tribunals – a relatively new development, arguably limiting the sovereignty of the judiciaries of the host states further by creating a new “appellate” mechanism, verifying the “appropriateness” of their respective verdicts. The scrutiny, based on the case law analysis, demonstrates that, while overall the international dispute settlement mechanism concerned does feel certain reluctance in dealing with the reviews of the kind, in principle, taken that jurisdictional preconditions are met, it should be considered as a possible venue for the reexamination of the respective national judgments and could potentially be addressed by the parties raising expropriation, denial of justice and similar claims, arising out of the relevant context. The controversies, however, promise to present quite a challenge to the investors as far as the merits phase is concerned in light of [potential] existence of the alternative enforcement fora (arguably eliminating the expropriation claim) or the need to exhaust all available national judicial remedies (for the cases of denial of justice).

Additionally, the enforcement prospects for the international investment arbitration awards resolving the post-award phase controversies, rendered outside of the ICSID context, are so far unclear. They might risk following the fate of the awards with the successful or failing recognition and enforcement of which they are concerned.

Keywords: Arbitration, International Investment Arbitration, Recognition and Enforcement, Execution, New York Convention, ECHR, ECtHR, ICSID, BIT, UNCITRAL, Jurisdiction, Denial of Justice, Fair Trial, Expropriation, Foreign Arbitral Award

JEL Classification: K33, K41, F21