Arbitration - Investing into North African Solar Power - page 89

ICSID Convention and Rule 28 of the Arbitration Rules deal with the costs of
ICSID arbitration.

2.3.3 Awards Under the ICSID Convention

Section 6 of the ICSID Convention deals with the recognition and enforcement of
an ICSID award (Art. 53 to 55 of the ICSID Convention). Art. 53(1) of the ICSID
Convention stipulates that ' ( ... ) (t)he award shall be binding on the parties and shall
not be subject to any appeal or to any other remedy except those provided for in this
Convention (

Therefore, national courts cannot review ICSID tribunal deci-
sions very easily. 304 Art. 54(1) of the ICSID Convention points out that there is no
need for a declaration of execution by the local courts. As the paragraph
emphasizes:
( ... ) [A]ll Contracting states recognize an award rendered pursuant to this Convention as
binding and enforce the pecuniary obligations imposed by that award within its territories
as if it were a final judgment of a court in that State (

... ).

'

... ).

According to Art. 54(3) of the ICSID Convention, the execution of the award is
according to the laws of the state where such an execution is sought. These
obligations of international law take precedence regulations of the respective
national arbitration law. 305 Besides the fact that national courts cannot review
ICSID awards, other authors also point out that this applies to a review by
international courts. 306 Interestingly, Art. 54(1) and (2) of the ICSID Convention
refer to enforcement, whereas Art. 54(3) of the ICSID Convention mentions
execution. Neither the French nor Spanish versions of the Convention have the
same difference. 307 It is therefore proposed that enforcement and execution be
treated in the same way. 308
There is one little “stain” on the recognition and enforcement of ICSID awards.
Art. 55 of the ICSID Convention specifically mentions that immunity from execu-
tion is untouched by the ICSID Convention. Also, section VI No. 43 of the Report
of the Executive Directors states that doctrine of sovereign immunity may prevent
execution of the award. The issue of state immunity will be assessed later on in this
thesis.

304

Mortenson ( 2010 ), 257 (266); Hauschka ( 2005 ), 1550 (1559); Krajewski ( 2009 ), 213; Hunter
( 2007 ), 165 (170); cf Herdegen ( 2003 ), 13 (33); Domestic courts are only capable of reviewing the
authenticity of the award, in: Tietje ( 2003 ), 5 (11); The actual review of the ICSID award is done
by an ICSID tribunal and not a national court, in: Hauschka ( 2005 ), 1550 (1559).
305 Hauschka ( 2005 ), 1550 (1559).
306 Tietje ( 2003 ), 5 (11); Hobe and M¨ ller ( 2009 ), 65 (74).
307 Bjorklund ( 2009 ), 302 (306).
308 Bjorklund ( 2009 ), 302 (306).