International Investment Law and Arbitration Commentary, Awards and other Materials

This chapter discusses the enforcement of awards and challenges to enforcement. It distinguishes between ICSID and other kinds of arbitral awards. Section 1 deals with the basic regime for set aside, enforcement and challenges to the enforcement of an international arbitral award, before introducing the ICSID regime, which applies specifically to ICSID awards. Section 2 discusses the case of non-ICSID arbitration in greater detail, while Section 3 discusses in greater depth the special case of ICSID arbitration, where enforcement and annulment of the award are matters governed solely under the ICSID Convention. Section 4 then deals with foreign state immunity. Notwithstanding the exceptions to foreign State immunity which allow the enforcement of investment arbitration awards, foreign sovereign assets continue to enjoy a broad immunity from execution and attachment. It might matter not at all that the immunity of the Respondent host State has already been lifted from suit and even enforcement, either in the non-ICSID situation by way of a ‘commercial exception’ typically found under various national rules, or in the case of an ICSID arbitration under the terms of the ICSID Convention. Immunity from execution and attachment is therefore the ‘last refuge’ of the host State. In practical terms, attachment of foreign sovereign assets will depend upon how favourable the rules are in the particular domestic jurisdiction, and this is discussed in Section 5.