Enforcement & ICSID/BIT Awards 3 rd DIS Baltic Arbitration Days John Willems – 27 June 2014

ICSID Automatic Enforcement Regime  Article 53(1) of the ICSID Convention – “The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided in this Convention…”  Article 54(1) of the ICSID Convention – “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State…”  BUT: the State needs to enact the enabling legislation under Article 69 of the ICSID Convention 1

ICSID Statistics: Annulment  No challenge should be possible at enforcement stage. ICSID Article 52 is the exclusive review.  ICSID tribunals have rendered 180 awards  50 awards have been subject to an annulment proceeding under ICSID Article 52, resulting in 13 annulments (in whole or in part)  According to ICSID, only four ICSID awards have been “challenged” somehow by the State in a national court. 2

Enforcement of Other BIT Awards  Non-ICSID BIT Awards are enforceable – and reviewable -- like any other award under the New York Convention  Challenges to Non-ICSID BIT Awards can be considered by national courts Metalclad v. Mexico (award set aside in part, Canadian Court) Occidental v. Ecuador (English Court) (unsuccessful challenge) CME v. Czech Republic (SVEA Court) (unsuccessful challenge) Swembalt v Latvia (SVEA Court) (unsuccessful challenge) 3

Voluntary Compliance & ICSID Awards  States generally comply voluntarily with ICSID awards  The “World Bank factor”: – Failure to respect an ICSID Award has political consequences for credible relations with the World Bank. (World Bank Operational Policy)  Trade Remedies: US suspends Argentina’s Generalized System of Preference: – “…because it has not acted in good faith in enforcing arbitral awards in favor of United States citizens.” U.S. Presidential Proclamation (26 March 2012) 4

Execution Issues  Article 55 of the ICSID Convention  “Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or on any foreign State from execution.”  Issue of “overall ICSID fairness” to States vs Investors  According to ICSID Statistics: – 48% of cases: award upholding the claims (part or full) – 24% of cases: award dismissing all claims – 28% of cases: award declining jurisdiction 5

Thank you