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Furthermore, the question of the relationship between Art. 53 and 54 of the
ICSID Convention may cause difficulties. The respondent (Argentina) claimed that
an award is only binding according to Art. 53(1) of the ICSID Convention if the
investor has previously resorted to local enforcement proceedings according to Art.
54 of the ICSID Convention.
309
One tribunal however declined this approach and
highlighted that Art. 53 and 54 address different subjects and obligations.
310
It
especially underlined that:
(
) [I]f the interpretation were accepted that there is no obligation to comply with an
award unless and until the judgment creditor avails itself of enforcement mechanisms
established pursuant to Article 54, the result could be that there would never be an
obligation to comply with non-pecuniary obligations in an award.
311
This decision was later widely favored and supported.
312
...
2.3.4 Difference to Enforcement of International
Commercial Arbitration Awards
Based on the articles of the ICSID Convention, there are three main differences
concerning the enforcement of international commercial awards. First of all, the
execution of the ICSID award is solely due to the ICSID Convention and not
according to the NY Convention.
313
Due to the non-application of the NY Con-
vention, the ICSID Convention prevents that the state uses public policy as a reason
to prevent ICSID award enforcement.
314
Lastly, awards of other arbitration insti-
tutions (e.g. ICC) need recognition by the local courts (e.g. § 1061 of the German
code of civil procedure), because of Art. 5 of the NY Convention, unlike ICSID
awards.
315
However, this is only valid for ICSID awards according to the Arbitra-
tion Rules and not to the ICSID Additional Facility.
316
The ICSID Convention benefits from Art. 54(1) of the ICSID Convention. It is a
unique regulation which separates the ICSID Convention from other arbitration
rules. If the award grants financial benefits, the ICSID judgment is automatically
enforceable, without further recognition by domestic courts.
317
Thus, ICSID
309
ICSID [2008] ARB/01/3—Annulment, 28 para 55.
310
ICSID [2008] ARB/01/3—Annulment, 30-34 paras 61-70.
311
ICSID [2008] ARB/01/3—Annulment, 33 para 66; Alexandrov (
2009
), 322 (336-337).
312
ICSID [2007] ARB/97/3—Annulment, 1 (13-14) para 34.
313
Saunders and Salomon (
2007
), 467 (469); cf Schobener and Markert (
2006
), 65 (106-107).
314
Reinisch (
2008
), 107 (112); Delaume (
1983
), 784 (801); Tietje (
2003
), 5 (11).
315
In Germany ICSID awards are awards sui generis and they need no recognition according to §
1061 ZPO, in: Semler (
2003
), 97 (99); cf Griebel (
2008
), 120.
316
Semler (
2003
), 97 (101).
317
Sch
obener and Markert (
2006
), 65 (107); Hobe and M¨ ller (
2009
), 65 (74); cf Hunter (
2007
),
165 (170); McIlwrath and Savage (
2010
), 393 para 7-058; No scrutiny of domestic courts, in:
Delaume (
1983
), 784 (785).
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