Author: Crina Baltag**
Published: December 2009
| Jurisdiction: International |
Topics: Enforcement of Arbitral Awards Enforceability New York Convention |
Description:
I. INTRODUCTION
The enforceability of arbitral awards is one of the main advantages of international arbitration, which makes arbitration an attractive alternative to litigation. Until now, the anecdotal evidence surrounding the recognition and enforcement of arbitral awards in disputes between private entities and states has indicated that there is a high degree of compliance by the debtor-state with regard to arbitral awards. The 2008 Survey on Corporate Attitudes and Practices on Recognition and Enforcement of Arbitral Awards and Settlement in International Arbitration (the “2008 Survey”) confirms that states usually honor arbitral awards rendered against them and that in cases where this does not happen, enforcement proceedings against states present no major problems.
The enforcement of foreign arbitral awards is, as a rule, subject to the law of the place of enforcement and, where applicable, to international treaties, including the New York Convention. The enforcement of arbitral awards rendered in institutional — ICC, LCIA, SCC etc. — or ad hoc arbitration proceedings between states and private entities follows the same rule. The enforcement of arbitral awards pursuant to the ICSID Convention is the exception. The ICSID self-contained system provides for a special feature for awards rendered under the ICSID Convention: these awards are to be treated and enforced by the ICSID Contracting States as final judgments of the courts of the state of enforcement. This makes it impossible “for a State to rely on defenses such as those contained in the New York Convention.” It does not, however, eliminate the applicability of the New York Convention when the enforcement is sought in a non-contracting State to the ICSID Convention. The fact that the ICSID Convention provides for a particular system for the enforcement of arbitral awards does not exclude the risk that a state will rely on immunity from execution in order to escape from compliance with an ICSID award.
*Special Section on the 2008 Survey on Corporate Attitudes Towards Recognition and Enforcement of International Arbitral Awards
**Crina Mihaela Baltag is the PricewaterhouseCoopers Research Fellow in International Arbitration at the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London. She is a PhD Candidate at Queen Mary University of London and holds a Master in International Commercial Arbitration (Stockholm University) and a Master in International Business (Academy of Economic Studies, Bucharest). She is a lawyer registered with the Romanian Bar Association.