The Incomplete Depoliticization of Investment Disputes: Enforcing ICSID Awards
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The ICSID Convention was originally intended to insulate the entire dispute settlement process from the influence of the political considerations of States. However, this depoliticization scheme has not been sustained in the enforcement of arbitral awards. In this context, the only remaining option for an inflicted investor faced with noncompliance by a host State is to turn back to the home government. The initial depoliticization scheme established by the ICSID Convention is thus incomplete in that the Convention permits the possibility of diplomatic protection in cases of noncompliance with an award. This incompleteness has allowed political and diplomatic powers to be exercised in the final stage of the enforcement of ICSID awards. Considering this feature of the ICSID enforcement mechanism, this article examines the structural limitations of the ICSID Convention that impact award enforcement and suggests several methods for enhancing the enforceability of ICSID arbitral awards in public international law.
Abstract
The ICSID Convention was originally intended to insulate the entire dispute settlement process from the influence of the political considerations of States. However, this depoliticization scheme has not been sustained in the enforcement of arbitral awards. In this context, the only remaining option for an inflicted investor faced with noncompliance by a host State is to turn back to the home government. The initial depoliticization scheme established by the ICSID Convention is thus incomplete in that the Convention permits the possibility of diplomatic protection in cases of noncompliance with an award. This incompleteness has allowed political and diplomatic powers to be exercised in the final stage of the enforcement of ICSID awards. Considering this feature of the ICSID enforcement mechanism, this article examines the structural limitations of the ICSID Convention that impact award enforcement and suggests several methods for enhancing the enforceability of ICSID arbitral awards in public international law.