52 - Post-Award Access to Justice Issues: Using Investment Treaties to Enforce Commercial Arbitration Awards

Summary

Commercial parties engaged in international transactions will typically resist agreeing to submit disputes to their counterparty’s national court system due to the real or perceived ‘home court advantage’. While international arbitration solves the problem with respect to the dispute on the merits, the arbitrators’ authority ends with the rendering of their award, and they cannot compel compliance with the award if voluntary compliance is not forthcoming. For that, the prevailing party – now an award creditor – must turn to the national courts, where the ‘home court advantage’ can re-emerge:the place of arbitration may have been located in the award debtor’s state, giving its courts the power to annul the award; or the award debtor’s assets may be uniquely located in its home state, making that the only practical enforcement forum. And problems may be particularly acute where the award debtor is the State itself or a state-controlled entity.The present chapter considers a potential option for an award creditor whose commercial arbitration award is annulled on arbitrary or parochial grounds by the courts of the seat, or wrongfully denied enforcement in that or another jurisdiction: the use of investment arbitration to enforce commercial arbitration awards as a vindication of rights and remedies under international law.