State Responsibility for Non-Enforcement of Arbitral Awards
World Arbitration and Mediation Review 2014 Vol. 8, No. 4
42 Pages Posted: 4 Mar 2015 Last revised: 5 Mar 2015
Date Written: December 31, 2014
This study attempts to provide an overview of the multifaceted nature of international arbitration and litigation proceedings that often follow unsuccessful efforts to enforce arbitral awards arising out of commercial disputes. Award-creditors have sought protection from unlawful State conduct before both the European Court of Human Rights (ECtHR) and various investment treaty tribunals under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) and other arbitral rules and institutions. The study discusses relevant case law in order to outline the rights of the award-creditor and the international obligations of the State with respect to enforcement of arbitral awards. This study proposes an expansive understanding of the notion of “arbitral award” for the purpose of post-enforcement proceedings to ensure conceptual clarity and afford due regard to the enforcement risks faced by award-creditors. By considering a number of treaties (European Convention on Human Rights (ECHR), bilateral investment treaties (BITs), the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), it is suggested that the State is under a general duty to ensure the enforcement of awards. It follows that, whether by reason of matters of law or fact (e.g. incompatible domestic legislation, unlawful acts such as breach of due process or denial of justice, etc.), if a State fails to ensure the enforcement of arbitral awards that it has an obligation to enforce, the award-creditor may invoke the State’s responsibility for internationally wrongful acts before international courts or tribunals in areas such as human rights and investment protection.
Keywords: international arbitration, international investment treaty arbitration, international investment law, European Convention of Human Rights
JEL Classification: K41, K33
Suggested Citation: Suggested Citation