Kenneth B. Reisenfeld, Joshua Robbins Examine the Finality and Enforceability of Investor-State Arbitral Awards Issued by ICSID Tribunals Versus Those Issued by Non-ICSID Panels, ICSID Review, Vol. 32, No. 2: 371-384 (2017) (Oxford University Press)

Articles / June 21, 2017

“Finality under the Washington and New York Conventions: Another Swing of the Pendulum?”

An article by Ken Reisenfeld, BakerHostetler Partner and a leader of its International Litigation and Arbitration Practice, and Joshua Robbins, was just published by the ICSID Review – Foreign Investment Law Journal. The article analyzes one of the key virtues of arbitration: finality and the enforceability of arbitral awards in courts around the world. Their study reviews whether investment treaty awards issued by tribunals constituted under the Rules of the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID) stand a better chance of being enforced by U.S. and foreign courts than those issued by ad hoc (or other non-ICSID) tribunals.

The answer has varied radically over time, as there have been historical periods when ICSID annulment committees have shown less deference and more inclination to annul awards than comparable domestic courts reviewing and enforcing non-ICSID investor-state awards under the New York Convention. The article’s review of recent decisions by ICSID annulment committees as well as by domestic courts in popular arbitral jurisdictions (such as France, the Netherlands, Sweden and the United Kingdom) suggests that the trend may be reversing. Currently, domestic courts are undertaking more searching review of an arbitration tribunal's substantive analyses while ICSID annulment committees have exhibited deference, even in cases where an arbitral tribunal may have erred.

Reisenfeld and Robbins conclude that, for the moment, parties with a choice between ICSID and non-ICSID fora, and a preference for finality over the opportunity for further (endless) judicial review, may decide that ICSID is a preferable venue for their investment disputes. This study should be of particular interest to potential investors in high risk countries, claimants, respondent Sovereign states, and funders of investment treaty disputes.

View the article at the link here until August 24, 2017. The article will be accessible by subscribers of the ICSID Review only thereafter.