Environmental Engineering Reference
In-Depth Information
Although most awards are enforced today,
491
there is still some reluctance if it
comes down to state property and entities.
492
2.5.2
Immunity from Execution and Waiver
Due to the fact that states increasingly participated within commercial transactions,
there idea came up that immunity must be restricted related to these activities.
493
Immunity from execution makes an arbitration process highly unpredictable for an
investor.
494
There is a difference between setting an award aside and resisting its
execution. In the case of setting aside,
(
...
) the award ceases to exist (
...
) and cannot
'
495
On the other hand, resisting execution means that the award is
not recognized and enforced, whereby the award itself is untouched.
496
Some
European courts have declared and states recognized that is not an absolute form of
immunity anymore.
497
This alone does not help because the immunity from execution
still exists, which means that there is a need for state waivers. The state could waive its
immunity from execution. The investor should demand a waiving of immunity with
regard to execution.
498
Frequently host states waived there right to plea on immu-
nity.
499
However, this is difficult to negotiate with the host state,
500
yet it is a common
practice.
501
The chance to conclude a waiver depends on the economic power of the
investor.
502
Some mention that concluding an arbitration agreement normally encom-
passes that the state waives all typical “support” from its national courts.
503
If the state
be enforced (
...
).
'
491
Reinisch (
2008
), 107 (111); cf Ziegler (
2012
), 4.
492
Swedish and Hong Kong courts, in: Loya (
2012
); Bono et al. (
2012
), 2-3.
493
Ziegler (
2012
), 2.
494
Bjorklund (
2009
), 302 (304).
495
McIlwrath and Savage (
2010
), 31 para 1-047.
496
McIlwrath and Savage (
2010
), 31 para 1-047.
497
Reinisch (
2006
), 803 (804) and (807).
498
Badmus-Busari (
2013
), 19-20; Moses (
2008
), 227; Nmehielle (
2001
), 21 (39); Waiver is the
'
(
...
) ultimate technique of (
...
) immunity avoidance (
...
)
'
, in: Delaume (
1985
), 319 (344);
Hunter (
2007
), 165 (174); Dolzer and Schreuer (
2008
), 289; Also citing other authors supporting
this claim, in: Pengelley (
2009
), 859 (871); Concerning different possibilities of waivers, in:
McIlwrath and Savage (
2010
), 331 para 6-012.
499
Ziegler (
2012
), 2.
500
Dolzer and Schreuer (
2008
), 289.
501
Ziegler (
2012
), 4.
502
Nmehielle (
2001
), 21 (39).
503
Ouerfelli (
2008
), 241 (255); Western position, in: McIlwrath and Savage (
2010
), 359 para
6-090; For investment arbitration, in: Harten and Loughlin (
2006
), 121 (128); Herdegen (
2003
),
13 (33); cf Hunter (
2007
), 165 (166); Sometimes it is pointed out that the stipulation of an
arbitration agreement includes a waiving of exequatur, in: Herdegen (
2003
), 13 (34).
