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23 J. Int'l Arb. 1 (2006)
Limits to Enforcement of ICSID Awards

handle is hein.kluwer/jia0023 and id is 3 raw text is: Journal of International Arbitration 23(l): 1-24, 2006. C 2106 KhIowcr Laiw' Inrernational. Irinued in lic Netherlands. Limits to Enforcement of ICSID Awards Edward BALDWIN, Mark KANTOR and Michael NOLAN* The ICSID Convention excludes any attack on the award in the national courts.' Investor-state arbitration has become an important form of dispute resolution, not least because of the growing number of bilateral investment treaties and fiee trade agree- ments. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention)2 establishes the most widely used institutions for those arbitrations. Many observers assume that final awards issued by arbi- tral tribunals organized tinder the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) in investor-state arbitrations are final and self-executing, and that the ICSID Convention eliminates defenses in national court to the enforcement of these awards. To date, the limited existing experience with the enforcement of ICSII) awards largely bears this out.To the knowledge of the authors, there have been only three decisions challenging the enforcement and execution of ICSID awards in national courts, and one case challenging only execution of the award. All of the enforcement challenges have been unsuccessful, whereas challenges to execution of the award against particular sovereign assets have been more successful. In those challenges, however, the courts have not treated the ICSID arbitral awards with the deference that commentators have expected. Moreover, there have been only 180 ICSID arbitrations in the entire fifty-year history of ICSID. As this article goes to press, eighty-nine of those arbitrations are pend- ing and a number of the concluded arbitrations did not reach a finding of liability.? It should be assumed that an increase in the number of ICSID awards will lead to an increase in the number of challenges by disappointed parties. The purpose of this article is not to be a practitioner's guide to challenging ICSID awards, but rather to consider some of the tactics that disappointed parties may employ in national courts in attempts to delay or to avoid compliance with ICSID awards. Chal- lenges of ICSI1) awards potentially may be based upon the provisions of the ICSID Con- vention itself and from outside the ICSID Convention. The terms of the ICSID Convention afford means for a party to oppose enforce- ment of an ICSID award. ICSID) Article 54(1) requires Contracting States to enforce an * Mr Nolan and Mr Baldwin are, respectively, partner and associate at Milbank. Tweed, Hadley & McCloy LLP. specializing in international arbitration. Mr Kantor is a retired partner of Milbank Tweed, currently teaching at Georgetowln University Law Center and serving as an arbitrator in international disputes. An earlier version of por- tions of this article was published in the Deceitber 2004 issue of the INTEiRNAIONAt. FINANCIAl. LAW RI-t viw. S\lritine Iterwthtiial Nominecs Estblishmbnt (.AJIN) v Rq ublic of Guinca, Case No. ARB/84/4, Ad Hoc Coniinittee Decision of December 22. 1989, 5 ICSID .'-v-FILJ 95 (1991)). 2 Done at Washington, D.C., March 18, 1965,TI.A.S. No. 6090, 575 U.N.T.S. 159. SSece <www worldbaik.org/icsid/cases/conclde.litrni> (list visited June 1. 2005); see also <www.worldbank. org/icsid/cases/peiiding.htin> (last visitedjune 1, 2005).

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