This article is an extract from The Investment Treaty Arbitration Review, 7th Edition. Click here for the full guide.
International arbitration is an important protection afforded under investment treaties designed to attract foreign direct investment, as it provides a neutral forum for the resolution of disputes with the host state. Historically, the promise of investment arbitration has been bolstered by a relatively high rate of voluntary compliance with investment treaty awards.2 However, a recent comprehensive study analysed state compliance with investment awards and found that 'non-payment can no longer be considered a theoretical possibility'.3 Post-award litigation has become increasingly necessary to compel state compliance with investment awards, with 83 per cent of states seeking to annul investment awards issued against them.4 Enforcement considerations have therefore taken on greater importance in the area of investment treaty arbitration, where voluntary compliance with arbitral awards can be mired by political interests, and compulsory enforcement against the debtor state can be both challenging and time-consuming in light of the protections afforded to foreign states by applicable principles of sovereign immunity.
This chapter gives an overview of the enforcement process and legal regimes that govern it, and discusses factors that contribute to the time and cost of enforcing an investment treaty award, and recent and noteworthy developments in the enforcement of investment awards.
II Overview of enforcement
i The legal regimes
The enforcement of investment treaty awards is facilitated by multilateral treaties designed to provide a streamlined and uniform framework for enforcing international arbitration awards in national courts around the world. In general, there are three international treaty-based enforcement regimes that may be used to enforce investment treaty awards: (1) the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958 (the New York Convention); (2) the Inter-American Convention on International Commercial Arbitration, 30 January 1975 (the Panama Convention); and (3) the Convention on the Settlement of International Disputes between States and Nationals of Other States (the ICSID Convention).
New York and Panama Conventions
The New York Convention, which entered into force in 1959, emerged to address the shortcomings of the 'double exequatur'5 enforcement regime provided by the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927.6 Commentators have described the New York Convention as 'a radically innovative instrument'7 and the 'single most important pillar on which the edifice of international arbitration rests'8 because it created the first 'comprehensive legal regime for the international arbitration process'9.
There are currently 168 contracting parties to the New York Convention.10 The Convention applies 'only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the [s]tate making such declaration'.11 The framework of the Convention generally calls on each contracting state to recognise and enforce foreign arbitral awards unless the award exhibits one or more enumerated defects.12 Finally, the New York Convention envisions that the courts of the arbitral seat (or under the law of which the award is made)13 will retain exclusive authority to annul the award. An award's annulment constitutes a ground on which other enforcing courts may refuse recognition of that award.14
The Panama Convention is substantially similar to the New York Convention, and was designed to mirror the latter and promote international commercial arbitration in Latin America.15 Although there are a few differences between the treaties,16 United States courts called on to apply the Panama Convention have stated the goal of achieving the same result as if the award was being enforced under the New York Convention.17
The ICSID Convention was designed to provide investment protection from unilateral actions taken by host states.18 It establishes its own arbitral rules and procedure, its own annulment process, and a unique, streamlined feature for the enforcement of ICSID arbitral awards. An ICSID award is enforceable in any contracting state as if it were a final judgment of a court of that state.19 Unlike the New York and Panama Conventions, the ICSID Convention itself provides no grounds on which national courts may refuse recognition of an ICSID award. Nor are ICSID awards subject to annulment by national courts; rather, review of an ICSID award is entirely self-contained through the ICSID annulment process.20 Although contracting states are legally bound by an ICSID award, the ICSID Convention does not purport to abrogate any sovereign immunity from execution to which a debtor state may be entitled in the recognising forum.21
ii The process for enforcing arbitral awards
Enforcing an arbitral award generally requires two steps. First, the award must be 'recognised' and converted into a domestic judgment. Second, the resulting judgment may be enforced through domestic procedures governing the execution of judgments.
Recognition of the award
Recognition confers on an arbitral award, after finding it free of fundamental defects, judicial imprimatur, and renders it capable of enforcement through compulsory measures. Under the United States Federal Arbitration Act – the second chapter of which contains the implementing legislation for the New York Convention – the act of recognition is also referred to as 'confirmation'.22
Procedures for recognition may vary as between awards governed by the New York and Panama Conventions and the ICSID Convention. In the United States, for example, arbitral awards governed by the New York and Panama Conventions may be confirmed through a summary proceeding,23 which is generally narrow in scope, does not require discovery or a trial, and is adjudicated on an expedited timeline. The United States' implementing legislation for the enforcement of ICSID awards, however, does not expressly specify the procedures to be followed in seeking recognition of an ICSID award, which led to some inconsistencies in the procedures applied by US courts. Several early cases involving the confirmation of ICSID awards permitted the recognition of the awards and entry of judgment on an ex parte basis.24 However, more recent US court decisions have found that the use of ex parte procedures for recognising an ICSID award violates the procedural protections afforded to foreign states under the US Foreign Sovereign Immunities Act (FSIA) and have held that a party seeking to enforce an ICSID award against a foreign state must initiate a plenary lawsuit and comply with the personal jurisdiction and service requirements of the FSIA.25
By contrast, in the United Kingdom, actions seeking confirmation of an arbitral award (whether governed by the New York or ICSID Convention) may be commenced without notice to the award debtor, subject to the duty of 'full and frank disclosure', which requires the applicant's disclosure of all material facts regarding the case as well as the specific legal arguments that the respondent would have been likely to make had it been aware of the proceeding.26 The judgment will not be enforceable, however, until the respondent has been served and given the opportunity to challenge enforcement of the award.27
Many civil law jurisdictions – France, for example – also permit ex parte recognition of an arbitral award through an exequatur proceeding. Exequatur proceedings typically do not afford full review of an award by the judge at the first instance level; rather, the award will be enforced pursuant to Article 1514 of the French Civil Procedure Code (3) once the award creditor proves the existence of the award and demonstrates that enforcement of the award would not violate French international public policy.28 Once the exequatur proceeding is complete and the award debtor is served with a copy of the judgment, the award debtor may then seek to vacate the exequatur decision. However, in contrast to English procedure, an exequatur order is still enforceable pending the award debtor's challenge of that order.29
Once an arbitral award is recognised by the enforcing forum, the resulting judgment may then be enforced through domestic procedures governing the execution of judgments. These procedures may include mechanisms for the restraint and turnover of identified property deemed suitable for execution and post-judgment discovery designed to locate those assets. The process of executing an investment treaty award is largely limited by applicable principles of sovereign immunity in the enforcing forum, which is discussed in greater detail in the following section.
III Time and costs of enforcement
Among the major factors affecting the time and cost of enforcing investment awards are defending the debtor state's attempts at annulment and the procedural protections afforded to states by sovereign immunity, which typically limit the categories of sovereign assets that may be executed against and often impose additional notice requirements that build delays into the execution process.
A recent study surveying state compliance with investment awards found that of '[o]f the 170 disputes resulting in damages awards . . . examined, States have initiated annulment or setting-aside proceedings in 141, or 83 percent of the cases'.30 These statistics demonstrate a growing trend of states resisting immediate compliance with investment awards issued against them in favour of first exhausting potential avenues for challenging the award.
Annulment of New York Convention awards
As previously discussed, the forum and grounds for annulment will depend on the enforcement framework that governs the award. New York and Panama Convention awards may be annulled, or set aside, by courts of the seat of the arbitration or country under the law of which the award was made.31 Although the New York and Panama Conventions do not purport to regulate local law for annulling a domestic award, most states' grounds for annulment will mirror those set forth in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (1985) (the Model Law).32 Although states adopting the Model Law generally consider these grounds to be exhaustive,33 some states (including the United States, the United Kingdom, Singapore, China and Brazil) permit annulment on additional grounds.34 Further, despite the prevalence of the Model Law, a limited number of jurisdictions provide for different approaches. For example, in Portugal and Argentina, arbitral awards are subject to the same judicial review as a domestic court judgment;35 and in Belgium and Switzerland, the courts have recognised parties' ability to waive their right to seek annulment.36
Annulment of ICSID awards
By contrast, ICSID awards can only be annulled through the self-contained ICSID annulment process. Under the ICSID Convention, contracting states have agreed to enforce ICSID awards unconditionally unless annulled by an ICSID annulment panel.37 In further contrast to the framework provided by the New York and Panama Conventions – which contemplate and accept some degree of variance in the grounds for annulment applied by each contracting state to its own domestic awards – the ICSID Convention creates a uniform set of grounds for annulment to be applied to every ICSID award.38
Timing of annulment proceedings
ICSID's most recent Background Paper on Annulment reported that the average duration of annulment proceedings between 2010 and 2016 was approximately 22 months from the date of registration.39 Although the timing of domestic set-aside proceedings will necessarily vary according to jurisdiction, set-aside proceedings before national courts may last even longer when factoring in potential appeals.
The timing of annulment can affect the timing of enforcement to the extent that enforcing courts are empowered to stay their own proceedings pending the adjudication of annulment proceedings. Each of the New York, Panama and ICSID Conventions permit a discretionary stay of enforcement proceedings pending the adjudication of an annulment application.40 ICSID's 2016 Updated Background Paper on Annulment reported that a stay of enforcement was requested in approximately 50 per cent of annulment applications,41 and that more than 83 per cent of stay requests were granted by ICSID annulment committees.42 In sum, this data shows that an award debtor's filing of an annulment application can cause significant delay to an award creditor's enforcement efforts.
ii Sovereign immunity
Although the multilateral enforcement treaties discussed in this chapter have streamlined the process for recognising arbitral awards, principles of sovereign immunity applicable in the enforcing forum will still regulate and limit how enforcement proceeds against a foreign state. These limitations can have the effect of prolonging enforcement proceedings by necessitating extensive asset discovery.
Immunity from recognition of an arbitral award
Most states now follow a 'restrictive theory' of immunity, which shields a sovereign state from the jurisdiction of the courts of another state with respect to sovereign acts, but not commercial activities.43 States that follow the restrictive theory of immunity and are parties to one or more of the multilateral enforcement treaties discussed in this chapter are likely to recognise an 'arbitration exception' to sovereign immunity, ensuring that foreign states cannot use sovereign immunity as a defence to the recognition of an arbitral award.
For example, the US FSIA, which governs all claims brought against foreign states and their instrumentalities in US state and federal courts, embodies a restrictive theory of immunity.44 The FSIA provides two separate forms of immunity to foreign states: first, it confers '[i]mmunity of a foreign state from jurisdiction'45 or immunity from liability; and second, it confers '[i]mmunity from attachment, arrest, and execution of property of a foreign state'.46 Each type of immunity may be abrogated if one or more expressly enumerated exceptions to immunity are demonstrated. One such exception exists for litigation to recognise and enforce arbitral awards governed by an enforcement treaty to which the United States is a contracting party.47
The English State Immunity Act 1978 (SIA) likewise embodies a restrictive theory of sovereign immunity. As explained by Lord Denning MR in Trendtex Trading v. Central Bank of Nigeria:48 'Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in nature.'49 As a matter of general principle only in respect of its sovereign activities should a state reasonably expect to be immune from proceedings in a foreign court. English law also distinguishes between jurisdictional immunity and immunity from execution. As regards the former, if a state 'has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration'.50
By contrast, states such as China maintain a system of absolute immunity. Under this approach, foreign states enjoy an absolute immunity to suit – including those seeking merely to enforce an arbitral award – absent explicit, contemporaneous waiver of that immunity. As explained by the Hong Kong Court of Final Appeal in Congo v. FG Hemisphere,51 the long-standing Chinese state policy of granting foreign states absolute immunity does not permit a finding of implicit waiver by virtue of the foreign state award debtor's agreement to arbitrate.
Immunity from execution and attachment
Notwithstanding the abrogation of sovereign immunity for purposes of recognising an arbitral award, debtor states typically retain sovereign immunity from execution or attachment against state assets. The ICSID Convention, for example, requires contracting states to recognise ICSID awards but expressly preserves principles of sovereign immunity from execution that may apply in the enforcement forum.52 The same principle can be found in most national systems, which recognise the immunities from liability and execution as independent from one another. As a result, there may be circumstances where a state may be subject to suit but immune from execution of any judgment rendered against it.53
Moreover, even once a foreign state's immunity from execution is abrogated, sovereign immunity statutes may nonetheless limit the categories of sovereign property against which a judgment may be satisfied. For example, in the United States, the courts may only execute against a foreign state's 'property used for a commercial activity in the United States'.54 The English SIA operates similarly in respect of immunity from execution, which does not apply to property that is 'for the time being in use or intended for use for commercial purposes'.55
Identifying a foreign state's property and proving its commercial use can prove quite difficult, however, and often requires extensive discovery. In Aurelius Capital Partners v. Argentina,56 the judgment creditors of Argentina identified and restrained certain funds held by US investment managers on behalf of Argentine workers and pensioners, arguing that the funds were being used for a commercial activity by earning revenues in the United States. The creditors restrained those assets while they were in the United States, just prior to their scheduled repatriation to the Argentine social security administration (Administration).57 The Court of Appeals for the Second Circuit ultimately vacated the restraint because the judgment creditors had not proven that, at the time of the attachment, the property was used for a commercial activity in the United States when in the hands of the sovereign. Specifically, the court explained that '[t]he commercial activities of the private corporations who managed these assets' before they were transferred to Argentina were 'irrelevant', and found that because the funds were restrained at the very moment that title over the funds was transferred to the Administration, 'neither the Administration nor the Republic had the opportunity to use the funds for any commercial activity whatsoever'.58 Absent evidence that the funds were to be used for commercial activity in the United States by Argentina after gaining possession of those funds, the funds were released.
IV Recent developments: intra-EU disputes
An area of investment award enforcement in a current state of flux is the enforceability of awards involving parties from Member States of the European Union in light of a decision from the European Court of Justice (CJEU) – constitutionally designated as the apex judicial authority on questions of EU law in accordance with the Treaty on the Functioning of the European Union (TFEU) – declaring that the arbitral dispute resolution provision contained within a bilateral investment treaty (BIT) between two EU Member States was contrary to EU law. Specifically, in the case of Achmea BV v. Slovak Republic (Achmea),59 the CJEU ruled that agreement to arbitrate contained within 1991 bilateral investment treaty between The Netherlands and Slovakia (Netherlands–Slovakia BIT) was invalid because it did not provide a mechanism by which the CJEU could provide preliminary rulings on matters of EU law in accordance with Article 267 of the TFEU. The Achmea decision called into question the enforceability of dozens of investment treaty awards rendered against EU Member States and has been cited by many of those states as a basis for resisting compliance with arbitral awards issued under multilateral treaties, such as the Energy Charter Treaty (ECT). The European Commission has further taken a position that any arbitral award issued pursuant to an intra-EU investment treaty (i.e., between EU parties) must be considered illegal 'state aid', and contrary to EU law to the extent that such law vests the Commission with sole authority to require the payment of subsidies between and among EU Member States. These recent developments have upended investor-state arbitration in the European Union and leaves substantial uncertainty for EU investors with unsatisfied arbitral awards against EU Member States. The following section discusses these defences to enforcement and recent decisions of national courts addressing them.
i CJEU review of EU law
The Achmea decision
Achmea concerned an award issued against Slovakia in favour of Dutch investors. In set-aside proceedings commenced in Germany, Slovakia contended that the tribunal lacked jurisdiction to hear the dispute because the arbitration agreement contained within the Netherlands–Slovakia BIT was incompatible with Article 267 of the TFEU. Specifically, Slovakia argued that because (1) any dispute between an EU-based investor and an EU Member State would involve the application and interpretation of EU law, and (2) Article 267 of the TFEU mandated that the CJEU must be the final authority on questions of EU law, the BIT's agreement to arbitrate violated EU law because an arbitral tribunal's decision on issues of EU law were not directly reviewable by the CJEU.60 The first instance court summarily rejected these arguments but, on appeal, the German Federal Court of Justice chose to refer several questions to the CJEU, including whether the arbitration remedy set forth in the Netherlands–Slovakia BIT was consistent with EU law.61 On 6 March 2018, the CJEU sided with Slovakia. It held that because an arbitral tribunal could not be considered a 'court or tribunal of a[n EU] Member State' within the meaning of Article 267 of the TFEU – and therefore could not refer preliminary questions of EU law to the CJEU – the arbitral dispute resolution provisions in BITs would impermissibly undermine and circumvent the judicial review mechanism provided by the TFEU,62 and could not ensure 'the full effectiveness of EU law, even though [it] might concern the interpretation or application of that law'.63
Energy Charter Treaty
Like many BITs, the ECT also permits an investor to resolve its disputes through arbitration, before (1) an ICSID tribunal,64 (2) a sole arbitrator or ad hoc arbitration established under the UNCITRAL Arbitration Rules65 or (3) an arbitration proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce.66 Several EU Member States have argued that the arbitration mechanism set forth in the ECT must also be invalidated based on the CJEU's reasoning in Achmea.
There are several arguments for why Achmea would not necessarily dictate that result. First, the CJEU's decision in Achmea was based, in part, on the fact that the Netherlands–Slovakia BIT was likely to require the arbitral tribunal to apply the substantive law of one or more of the parties (which would necessarily include EU law) in resolving the dispute.67 The ECT, on the other hand, requires the arbitral tribunal to 'decide the dispute in accordance with [the ECT] and applicable rules and principles of international law'.68 Further, the CJEU remarked in Achmea that an agreement to arbitrate contained within a multilateral treaty would not per se be incompatible with EU law, particularly where the European Union itself is party to that treaty,69 noting that '[t]he competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements'.70 Such 'competence' should therefore arguably be respected in connection with the ECT, to which the European Union itself is a contracting party.71
Nonetheless, there are currently at least 11 ECT awards being challenged in annulment proceedings on the basis of the Achmea ruling.72 The European Commission has largely backed Member States' efforts to annul intra-EU investment awards by seeking to appear as amicus curiae in connection with those proceedings.
Subsequent actions taken by EU Member States
In the wake of Achmea, 22 EU Member States jointly issued a declaration (on 15 January 2019) (the Declaration),73 in which they declared that 'all investor-State arbitration clauses contained in bilateral investment treaties concluded between Member States are contrary to Union law and thus inapplicable'.74 Moreover, the Declaration stated that '[a]rbitral tribunals have interpreted the Energy Charter Treaty as also containing an investor-State arbitration clause applicable between Member States' and that '[i]nterpreted in such a manner, that clause would be incompatible with the Treaties and thus would have to be disapplied'.75
On 5 May 2020,76 23 EU Member States signed the Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union (the BIT Termination Treaty), by which the contracting parties agreed to terminate more than 120 BITs concluded between EU Member States.77
ii EU 'state aid'
Several EU Member States and the European Commission have also sought to challenge intra-EU BIT and ECT awards by characterising them as impermissible 'state aid'. Article 107(1) of the TFEU defines 'state aid' as a measure 'granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods . . . in so far as it affects trade between Member States'. Article 108 of the TFEU vests the Commission with authority to regulate and approve all state aid within the European Union after assessing its compatibility with the 'internal market'. From these principles, the Commission has taken the position that treaties providing investment protections between certain EU Member States create an uneven playing field and frustrate the Commission's sole authority to regulate intra-EU investments.
In November 2017, the Commission issued State Aid Decision 2017/7384 concerning certain Spanish renewable energy subsidies (the State Aid Decision). In the State Aid Decision, the Commission declared that 'any provision [of an investment treaty] that provides for investor-State arbitration between two Member States is contrary to [European] Union law'.78 The Commission further asserted that 'any compensation which an Arbitration Tribunal were to grant to an investor' in respect of the subsidies that were the subject of Spain's regulatory reforms in the energy sector 'would constitute in and of itself State aid', and barred Spain from paying without the Commission's prior authorisation of the legality of such state aid.
V Judicial reception of objections to enforcement of 'Intra-EU' investment awards
Although the BIT Termination Treaty and the State Aid Decision have rendered intra-EU investment awards virtually unenforceable within the European Union, intra-EU award creditors have flocked to New York and ICSID Convention signatory countries outside the European Union, such as the United States, Australia and the United Kingdom, to enforce their awards. In the United States, for example, at least 10 actions have been commenced for the purpose of recognising and enforcing intra-EU investment awards against various EU Member States, including Spain, Italy and Romania.79 To date, most of these cases have been stayed pending adjudication of annulment applications before ICSID Annulment Committees or national courts at the seat of the arbitration, none of which have yet ruled on the intra-EU Achmea and state aid objections raised to date.80 However, there have been some early breakthroughs in the Australian and English courts with respect to the enforcement of intra-EU ICSID awards, which are discussed below.
i Micula v. Romania
On 19 February 2020, the Supreme Court of the United Kingdom recognised an ICSID award rendered against Romania in favour of the Micula claimants pursuant to the 2003 Romania–Sweden BIT. Romania argued that enforcement of the award would be unlawful both on the basis of the Achmea decision and because it constituted unlawful state aid. The lower courts stayed enforcement pending a decision from the CJEU on whether payment of the award would violate Romania's EU law obligations.81
The Supreme Court lifted the stay of enforcement upon finding the stay contrary to the United Kingdom's treaty obligations under the ICSID Convention. Taking note specifically of the fact that the United Kingdom had acceded to the ICSID Convention prior to joining the European Union, the Court held that principles of EU law could not override the United Kingdom's pre-existing treaty obligations 'to implement the ICSID Convention and to recognise and enforce the award under Articles 54 and 69 of the ICSID Convention'.82 The Court further found that there was no basis to stay enforcement of the award 'in deference to the EU courts on this issue, which is not one of EU law, simply because of the speculative possibility of infringement proceedings in the future'.83 The Supreme Court's decision is noteworthy to the extent that it deemed the question of the ICSID award's compatibility with EU law to be irrelevant for purposes of the UK courts' obligation to recognise and enforce ICSID awards.
ii Eiser and Infrastructure Services v. Spain
The primary question before the Federal Court was whether 'a foreign state [is] immune from the recognition and enforcement of an arbitral award made under the [ICSID Convention]'.86 The Federal Court held that Spain had waived its sovereign immunity in respect of recognition and enforcement of the ICSID award by giving 'its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of [Article 26 of the ECT]'87 and becoming a party to the ICSID Convention, which 'expressly provides for the automatic recognition and enforcement of awards in Contracting States'.88 On finding that Spain's sovereign immunity had been abrogated, the Federal Court recognised the ICSID awards and ordered Spain to comply with the pecuniary obligations set forth in those awards.
The Federal Court's decision was thereafter partially vacated by a Full Court of the Federal Court of Australia (the Full Court)89 to the extent that it ordered Spain to pay the ICSID awards. Specifically, the Full Court found that although the Federal Court had jurisdiction to recognise the ICSID awards, it had not accounted for Spain's immunity from execution, which would shield it from compulsory enforcement of the awards.90 Notably, however, the Full Court expressed little interest in Spain's argument that the arbitration mechanism contained in Article 26 of the ECT was incompatible with EU law, dismissing the argument as irrelevant since 'the question is not whether Art 26 of the ECT effects a submission to jurisdiction; it is whether Art 54(2) of the ICSID Convention does'.91
Together, these decisions signal an early reluctance by courts of some ICSID Convention signatory countries to wade into the politically sensitive issues relating to the enforceability of intra-EU ICSID awards under EU law. It may be more difficult, however, for national courts to avoid these issues in respect of investment awards governed by the New York Convention, which – unlike the ICSID Convention – expressly provides grounds for non-recognition through which EU Member States' intra-EU objections may be heard by local enforcement courts. The resolution of these objections by ICSID and domestic national court annulment proceedings will set important precedents in defining the enforceability of intra-EU investor-state awards.