Award as an Investment: The Value of an Arbitral Award or the Cost of Non-Enforcement

29 Pages Posted: 7 Jan 2013  

Loukas A. Mistelis

Centre for Commercial Law Studies, Queen Mary University of London

Date Written: January 7, 2013

Abstract

This paper explores two themes. The first one addresses the legal nature of arbitral awards and an attempt is made to offer a legal definition also by looking at the legal nature of arbitration and related theories. The conclusion is that awards are de facto and de jure functional equivalents of court judgments. In this regards the paper also looks at the 'value' of arbitral awards. The second theme is whether the interference of judicial or other state authorities with the enforcement of a foreign arbitral award may be the trigger for investment protection (for treatment short of fair and equitable treatment or even expropriation) in investment treaty arbitration; this may be on the basis of a bilateral investment treaty and/or the ICISD Convention. It is well established that states parties to the 1958 New York Convention have a public international law obligation to enforce a foreign arbitral award unless they find that one of the limited grounds to resist enforcement exists. A number of recent cases rely on investment treaties to establish jurisdiction against states which aggressively and arbitrarily or negligently and willfully refuse to enforce an award with a foreign party beneficiary. While a trend emerges there are also cases which reject such applications for lack of jurisdiction under investment treaties. The paper provides guidance as to which state conduct in relation to enforcement of arbitral awards may warrant investment arbitration.

Keywords: arbitral award, arbitration, enforcement, non-enforcement, fair and equitable treatment, expropriation, investment treaties, ICSID, New York Convention, legal nature of arbitration, legal nature of awards

Suggested Citation

Mistelis, Loukas A., Award as an Investment: The Value of an Arbitral Award or the Cost of Non-Enforcement (January 7, 2013). Queen Mary School of Law Legal Studies Research Paper No. 129/2013. Available at SSRN: https://ssrn.com/abstract=2195016 or http://dx.doi.org/10.2139/ssrn.2195016

Loukas A. Mistelis (Contact Author)

Centre for Commercial Law Studies, Queen Mary University of London ( email )

London
United Kingdom
+44 20 7882 8075 (Phone)
+44 20 7882 8101 (Fax)

HOME PAGE: http://www.ccls.law.qmul.ac.uk

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