This article is an extract from TLR The Investment Treaty Arbitration Review - Edition 8. Click here for the full guide.

i Introduction

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 Investment 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 172 contracting parties to the New York Convention.10 Some contracting states, including the United States, have declared in accordance with Article I(3) of the Convention that they will apply the Convention '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 Investment treaty disputes generally meet this 'commercial relationship' requirement, which US courts have held is satisfied if the parties' relationship 'arise[s] out of or in connection with commerce'.12 The Convention calls on each contracting state to recognise and enforce foreign arbitral awards unless one or more of seven enumerated grounds exist for refusing recognition and enforcement.13 Finally, the New York Convention envisages that the courts of the arbitral seat (or under the law of which the award is made)14 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.15

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.16 Although there are a few differences between the treaties,17 US courts called on to apply the Panama Convention seek to achieve the same result as if the award were being enforced under the New York Convention.18

ICSID Convention

The ICSID Convention was designed to provide investment protection from unilateral actions taken by host states.19 It establishes its own arbitral rules and procedure, its own annulment process, and a unique, streamlined regime 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.20 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.21 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.22

ii The process for enforcing arbitral awards

Enforcing an arbitral award generally requires two steps.23 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'.24

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,25 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.26 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.27

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.28 The judgment will not be enforceable, however, until the respondent has been served and given the opportunity to challenge enforcement of the award.29

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 once the award creditor proves the existence of the award and demonstrates that enforcement of the award would not violate French international public policy.30 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.31


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 circumscribed by applicable principles of sovereign immunity in the enforcing forum, as 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 '[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'.32 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.33 Although the New York and Panama Conventions do not purport to regulate local law for annulling a domestic award, most states' grounds for annulment mirror those set forth in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (1985) (the Model Law), which closely track the grounds for non-recognition of an award under the New York and Panama Conventions.34 Although states adopting the Model Law generally consider these grounds to be exhaustive,35 some non-Model Law states (including the United States, the United Kingdom, China and Brazil) permit annulment on additional grounds.36 Further, despite the increasing harmonisation of the grounds for annulment globally, a limited number of jurisdictions provide for materially different approaches. For example, in Portugal and Argentina, arbitral awards are subject to the same judicial review as a domestic court judgment;37 and in Belgium and Switzerland, the courts have recognised parties' ability to waive their right to seek annulment.38

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.39 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.40

Timing of annulment proceedings

In its latest Background Paper on Annulment, ICSID reported that the average duration of annulment proceedings between 2010 and 2016 was approximately 22 months from the date of registration.41 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.42 In the 2016 Updated Background Paper on Annulment, ICSID reported that a stay of enforcement was requested in approximately 50 per cent of annulment applications,43 and that more than 83 per cent of stay requests were granted by ICSID annulment committees.44 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 regulate and limit how enforcement proceeds against a foreign state. These limitations can have the effect of prolonging post-judgment execution 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.45 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.46 The FSIA provides two separate forms of immunity to foreign states: first, it confers '[i]mmunity of a foreign state from jurisdiction'47 or immunity from jurisdiction; and second, it confers '[i]mmunity from attachment, arrest, and execution of property of a foreign state'.48 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.49

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:50 '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.'51 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'.52

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,53 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.54 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.55

Immunity from execution is subject to certain exceptions, however. For example, the US FSIA provides that a foreign state's 'property used for a commercial activity in the United States' is not immune from execution upon a judgment of a US court, if the judgment is 'based on an order confirming an arbitral award rendered against the foreign state'.56 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'.57

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,58 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 would soon be transferred to the Argentine social security administration (Argentine administration) under proposed Argentine legislation.59 Shortly after the district court restrained the funds, the proposed Argentine legislation became law, mandating that the funds be transferred to the Argentine administration.60 The district court then issued an order authorising attachment of the funds immediately upon the transfer.61 The Court of Appeals for the Second Circuit ultimately vacated the attachment 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 Argentine administration, 'neither the Administration nor the Republic had the opportunity to use the funds for any commercial activity whatsoever'.62 Absent evidence that the funds were to be used for commercial activity in the United States by Argentina after gaining possession of the funds, they were deemed immune.

iv Recent developments: Intra-EU investment disputes

iChanges in EU law

CJEU case law

An area of investment award enforcement in a current state of flux is the enforceability of 'intra-EU' awards in favour of investors of one EU Member State against another EU Member State, in light of three decisions handed down in the past few years by 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).

First, in its March 2018 decision in Achmea BV v. Slovak Republic (Achmea),63 the CJEU ruled that the agreement to arbitrate contained within the 1991 bilateral investment treaty between the Netherlands and Slovakia (Netherlands–Slovakia BIT) was invalid under EU law because it did not provide a mechanism by which the CJEU could give preliminary rulings on matters of EU law in accordance with Article 267 of the TFEU. Second, in its September 2021 decision in Komstroy LLC v. Republic of Moldova (Komstroy),64 the CJEU ruled that, as a matter of EU law, no valid arbitration agreement can be formed under the Energy Charter Treaty (ECT) between an EU investor and an EU Member State. Third, in its October 2021 decision in PL Holdings Sàrl v. Poland (PL Holdings),65 the CJEU ruled that an EU Member State cannot validly enter into an ad hoc arbitration agreement with an EU investor to resolve a dispute arising under an investment treaty.

These three decisions have called into question the enforceability of dozens of investment treaty awards rendered against EU Member States.

EC State Aid Decision

Several EU Member States and the European Commission (EC) also have 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 EC with authority to regulate and approve all state aid within the European Union after assessing its compatibility with the internal market. Based on these principles, the EC has taken the position that treaties providing investment protections between certain EU Member States create an uneven playing field and frustrate the EC's sole authority to regulate intra-EU investments.

In November 2017, the EC issued State Aid Decision 2017/7384 concerning certain Spanish renewable energy subsidies (the State Aid Decision).66 In this Decision, the EC 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 it barred Spain from paying such compensation without the EC's prior authorisation.

Actions taken by EU Member States

On 29 May 2020, 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 signatories agreed to terminate more than 120 BITs concluded between them.67 The BIT Termination Treaty also purported to terminate the sunset clauses contained within the signatories' intra-EU BITs.68

On 24 June 2022, the 53 contracting parties to the ECT reached an agreement in principle on a modernised version of the ECT after two years of formal negotiations.69 The modernised ECT would have explicitly prohibited intra-EU arbitrations; however, several EU Member States subsequently announced their intention to withdraw entirely from the ECT and on 7 February 2023, the EC announced that it recommended a coordinated withdrawal of all EU Member States because the ECT was not consistent with the European Union's policy on investment protection or the 2015 Paris Climate Agreement.70

These recent EU law developments have upended intra-EU investor-state arbitration and leave substantial uncertainty for EU investors with unsatisfied arbitral awards against EU Member States. The following sections discuss the reactions to these developments by arbitral tribunals and national courts.

ii Arbitral awards

With only one exception, every investment treaty tribunal and ICSID annulment committee confronted with an EU Member State's intra-EU jurisdictional objection has rejected it.71 In ECT cases alone, more than 60 tribunals and annulment committees have rejected the objection, with at least 17 such decisions having been issued since the CJEU's Komstroy decision.72 Tribunals and annulment committees have relied on myriad grounds for rejecting the intra-EU objection in ECT cases, including that:

  1. the plain and ordinary meaning of Article 26, the ECT's dispute resolution provision, encompasses intra-EU arbitration;
  2. Article 26(6), the ECT's applicable law provision, contains no reference to EU law;
  3. even if Article 26(6) of the ECT allowed a tribunal to apply EU law, Article 16, the ECT's conflicts provision, ensures the investor's right to rely on any ECT provision that is 'more favourable', including any provision relevant to 'dispute resolution';
  4. the CJEU's Achmea and Komstroy decisions lack any analysis of public international law;
  5. Article 42 provides the ECT's exclusive procedure for amendment and contracting parties have not agreed to amend the ECT to exclude intra-EU disputes;
  6. under customary international law, tribunals assess jurisdiction, at the latest, according to the facts existing at the time the investor filed its request for arbitration, and retroactive application of Komstroy, Achmea or any other CJEU decision would violate this bedrock rule of customary international law; and
  7. the European Union and its Member States negotiated, signed and ratified the ECT as written in the late 1990s and the travaux préparatoires of the treaty demonstrate that an explicit disconnection clause for intra-EU disputes was rejected by the ECT contracting parties.

iii National court decisions

Because the CJEU's decisions in Achmea, Komstroy and PL Holdings, the BIT Termination Treaty and the State Aid Decision have rendered intra-EU investment awards virtually unenforceable within the European Union,73 intra-EU award creditors have flocked to New York Convention 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 15 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.74

English court decisions in Micula v. Romania and Infrastructure Services v. Spain

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.75

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'.76 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'.77 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.

On 24 May 2023, Mr Justice Fraser of the English Commercial Court issued a judgment in Infrastructure Services v. Kingdom of Spain78 denying Spain's application to set aside an ex parte order recognising and enforcing an intra-EU ICSID award issued under the ECT. Spain claimed that it was immune from the jurisdiction of the English courts under the State Immunity Act 1978, based on the purported invalidity of the parties' arbitration agreement under EU law. Relying on the Supreme Court's decision in Micula v. Romania, Fraser J held that (1) a foreign state cannot raise as a defence to enforcement of an ICSID award the tribunal's purported lack of jurisdiction or any other matter that could form the basis for an annulment application before an ICSID annulment committee, (2) the CJEU 'is not the ultimate arbiter' of the ICSID Convention or the ECT, and (3) the waiver and arbitration exceptions to immunity under the State Immunity Act 1978 apply to ICSID award enforcement proceedings.

Australian court decisions in Eiser and Infrastructure Services v. Spain

On 24 February 2020, the Federal Court of Australia issued a decision in Eiser Infrastructure Ltd v. Kingdom of Spain79 concerning the enforcement of two ECT ICSID awards.80

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]'.81 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]'82 and becoming a party to the ICSID Convention, which 'expressly provides for the automatic recognition and enforcement of awards in Contracting States'.83 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 Australia84 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.85 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'.86

On 12 April 2023, the Australian High Court issued a unanimous judgment dismissing Spain's appeal and affirming that its agreement to Articles 53 to 55 of the ICSID Convention constituted a waiver of its immunity from the jurisdiction of the Australian courts to recognise and enforce an ICSID award against it.87

US court decisions in intra-EU ICSID award enforcement proceedings

On 15 February 2023, Judge Tanya Chutkan of the US District Court for the District of Columbia issued decisions in two intra-EU ICSID award enforcement proceedings (NextEra v. Spain and 9REN v. Spain), holding that the Court had subject-matter jurisdiction over the proceedings pursuant to the FSIA's arbitration exception.88 Judge Chutkan concluded that the purported invalidity of the parties' arbitration agreement under EU law 'does not affect the Court's jurisdiction' and that, as a result, 'there is no need at this stage to analyze the effects of Achmea and Komstroy on EU law and intra-EU disputes'. Spain is currently appealing Judge Chutkan's rulings.

On 29 March 2023, Judge Richard Leon of the US District Court for the District of Columbia issued a contrary decision in an intra-EU award enforcement proceeding under the New York Convention (Blasket v. Spain). Judge Leon upheld Spain's challenge to the Court's subject-matter jurisdiction on the basis that the parties had never entered into a valid arbitration agreement.89 Relying on the CJEU's decisions in Achmea and Komstroy, Leon J concluded that 'Spain lacked the legal authority to make a standing offer to arbitrate to [Blasket] under the law that applies to both parties'. Blasket is currently appealing Judge Leon's ruling.


Together, these decisions signal that intra-EU ICSID award creditors may have success with enforcing their awards outside the European Union, despite the CJEU's Achmea and Komstroy rulings. It may be more difficult, however, for award creditors holding non-ICSID awards to enforce their awards under the New York Convention, for two reasons. First, if those awards were issued by a tribunal seated in an EU Member State, the awards are susceptible to annulment by the courts at the seat of the arbitration, and the annulment of an award is a ground for its non-recognition under the New York Convention. Second, the New York Convention provides other 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 national courts will set important precedents in defining the enforceability of intra-EU investor-state awards.