Environmental Engineering Reference
In-Depth Information
tribunals are able to award
, because the award relates
to compensation due to damage committed by the state.
318
This does not alter the fact that the ICSID Convention cannot supersede the
immunity from execution because this depends on the local immunity rules.
319
The
domestic courts are obligated not to interfere with the ICSID proceedings.
320
The
“only” purpose of national courts under the ICSID Convention is to recognize and
enforce an ICSID award.
321
If the host state claimed immunity from execution, this
would restore the option of diplomatic protection again.
322
This is also laid down in
Art. 27(1) of the ICSID Convention. Furthermore, the contracting state whose
national is involved could rely on Art. 64 of the ICSID Convention and submit
the question of application of the ICSID Convention to the ICJ.
The risk that the state claims immunity from execution of the awards is relatively
low because this would damage its credibility immensely, leading to fewer invest-
ments.
323
All arbitration courts face this problem, whereby the ICSID Convention
deals with less issues of sovereignty than others.
324
It is also mentioned within the
literature that ICSID awards are enforced more often than awards from other
arbitration institutions.
325
The ICSID Convention and therewith investment protec-
tion benefit from the special provisions concerning the enforcement. Although the
risk of immunity of execution remains, it is beneficial that public policy is excluded.
As mentioned above, the provisions on public policy within the NY Convention are
loopholes. Hence, there is a risk of abuse, which does not exist within the ICSID
Convention. The issue of state immunity and its effect on arbitration awards will be
discussed later in this chapter.
(
...
) public law remedy (
...
)
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2.3.5
Interpretation, Revision and Annulment
Unlike other arbitration institutions, the ICSID Convention offers special provi-
sions dealing with the interpretation, revision and annulment of awards. Within the
ICSID Convention, Section 5 deals with interpretation, revision and annulment,
encompassing Art. 50 to 52 of the ICSID Convention. Art. 50(1) of the ICSID
318
Harten and Loughlin (
2006
), 121 (131); Individualized damage claims are rare in international
law, in: Harten and Loughlin (
2006
), 121 (131).
319
Nmehielle (
2001
), 21 (30-31); Moses (
2008
), 227; cf McIlwrath and Savage (
2010
), 393 para
7-058.
320
Delaume (
1983
), 784 (785).
321
Delaume (
1983
), 784 (785).
322
Sch
obener and Markert (
2006
), 65 (107-108); Delaume (
1983
), 784 (801).
323
Hauschka (
2005
), 1550 (1559); Possibility to claim sovereignty was not used often, in: Tietje
(
2003
), 5 (11).
324
Mortenson (
2010
), 257 (266).
325
McIlwrath and Savage (
2010
), 393-394 para 7-059; Reinisch (
2008
), 107 (112).
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