International Investment Dispute Awards Facilitating Enforcement

This book examines how international investment arbitral awards can be facilitated. It sets out to achieve a fuller conceptualisation and theorisation of awards through a discussion of relevant issues and themes, as well as demonstrating how they can be achieved through a comparative approach that has been conceived and developed with reference to existing deficiencies in the research literature. This contribution is particularly important given the worldwide emergence of investment arbitration as a powerful form of alternative dispute resolution (ADR). The book ultimately seeks to explore and develop solutions that can be directed to an existing oversight and deficit within the international investment architecture. In considering the advantages and disadvantages of each ‘solution’, it will work towards an approach best-suited to upholding the interest of the victorious party at the enforcement stage. The enforcement of arbitral awards on a voluntary basis has proven to be insufficient, and this created a real and ongoing shortcoming that needs to be addressed. International Investment Dispute Awards: Facilitating Enforcement therefore seeks to directly influence existing practice on the part of international institutions, with the intention of helping to develop a more effective resolution. The readerships for this book will include arbitration practitioners, policy-makers (including treaty drafters), academics and postgraduate students interested in the enforcement of investment arbitral awards.

0.1 AKNOWLEDGEMENTS 0.2 TABLE OF CASES 0.3 TABLE OF LEGISLATION 1. INTRODUCTION 1.1. General background 1.2. Central research questions 1.3. Originality and significance of the book 1.4. Structure of the book 2. CHAPTER 1: OBSTACLES IN ENFORCEMENT OF ICSID AWARDS 2.1. Introduction 2.2. The Enforceability of the ICSID Awards 2.2.1. Characteristics of the ICSID Awards 2.2.1.1. Final and Binding 2.2.1.2. Additional facility 2.2.1.3. No precedent 2.2.1.4. Post-award remedies 2.3. Enforcement obstacles 2.3.1. Stay of enforcement 2.3.2. Sovereign immunity 2.3.2.1. Jurisdictional Immunity 2.3.2.2. Immunity against Execution LETCO v Liberia Case (in the U.S.A.) AIG Capital Partners, Inc. v Republic of Kazakhstan Case (in the UK) Sedelmayer v. Russian Federation Case 2.4. Conclusion 3. CHAPTER 2- OBSTACLES IN ENFORCEMENT OF NON-ICSID AWARDS 3.1.Introduction: Enforceability of Non-ICSID Awards (The New York Convention) 3.2. Benefits of the NYC 3.3. Drawbacks of the NYC 3.3.1. Public Policy 3.3.1.1. International public policy 3.3.1.2. National public policy 3.4. The ICSID and Non-ICSID Awards: Enforceability in Different Jurisdictions 3.5. Conclusion 4. CHAPTER 3: POTENTIAL ENFORCEMENT OBSTACLES IN A FUTURE MULTILATERAL INVESTMENT COURT (MIC) 4.1. Introduction 4.2. MIC Enforcement Mechanism 4.2.1.The ICSID Convention 4.2.2. New York Convention 4.2.3. Creation of a New International Convention 4.3. Potential Risk for Enforcement of MIC Awards in Third States 4.3.1.As a alternative approach: Fund system of the MIC 4.4. Evaluating the Significance of the MIC in Practice 4.5. Conclusion 5. CHAPTER 4: THE PRACTICAL REMEDIES TO REDUCE THE EXECUTION ISSUES IN INVESTMENT DISPUTE SETTLEMENT SYSTEM 5.1. Introduction 5.2. The General Progress of Enforcement of an International Arbitral Award 5.2.1. The Republic of Turkey 5.3. Previous Practical Proposals to Reduce the Enforcement Issues 5.3.1. Creating a Uniform State Sovereignty Law 5.3.1.1. State’s Consent to Waive Immunity from Execution in Their Agreement 5.3.1.2. Enter Into Force of the United Nations Convention on Jurisdictional Immunities of States and Their Property (the UNCSI) 5.3.2. Activating the World Bank 5.3.3. Refusal the Next ICSID Application of Non-Complaint States or Investors (New Proposal) 5.3.4. Proposal to reform the ICSID rules 5.3.5. Securing Compliance ICSID Awards with Countermeasures under the Law of State Responsibility 5.3.6. Securing Compliance ICSID Awards with VCLT Article 60.Termination or Suspension of the Operation of a Treaty as a Consequence of Its Breach 5.3.7. Securing Compliance from Losing Investors 5.4. Conclusion 6. Chapter 5: CONCLUSION 6.1 Answering the Central Research Questions 6.2. Further Research 7. LIST OF ABBREVIATIONS 8. INDEX

Dr Esra Yildiz Üstün is a lecturer at Atatürk University, Turkey. She is a registered lawyer in the Istanbul Bar Association, holds professional memberships in the fields of international investment arbitration, commercial arbitration and ADR (Alternative Dispute Resolution) and maintains associations with Young ICSID, LCIA, ISTAC and ICC. Esra consults on enforcement of international arbitral awards. She an active contributor to the Turkish Law Blog and Jus Mundi (Wiki Notes).