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Sovereign Immunity As A Barrier To The Enforcement Of Investor-State Arbitral Awards: The Re-Politicization Of International Investment Disputes - ARIA Vol. 21 No.1-4 2010

Author(s): 
Andrea K. Bjorklund
Page Count: 
32 pages
Media Description: 
PDF from "The American Review of International Arbitration (ARIA)"
Published: 
April, 2011
Jurisdictions: 
International
Practice Areas: 
Investment Disputes,
Enforceability,
Sovereign Immunity
Author Detail: 

Andrea K. Bjorklund is a Professor of Law & Martin Luther King, Jr. Scholar, University of California, Davis, School of Law. J.D. Yale Law School; M.A. New York University; B.A. University of Nebraska. I am grateful to Seán Duggan, Toni Henneke, Meg Kinnear, John Major & Tom Sikora, and to participants in the PCA/Houston International Arbitration Club/University of Texas Symposium: “Arbitration and National Courts: Conflict and Cooperation” (May 13-14, 2010), for helpful suggestions and comments. Any errors, of course, remain my own.

 

 

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Description: 

Originally from American Review of International Arbitration - ARIA

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"Successful" claimants in investment arbitrations increasingly find that they
have earned a hollow victory if the losing state refuses to pay the arbitral award
voluntarily. Immunity inhering in the state's assets may prevent execution against
them. This difficulty arises from the distinction between waivers of sovereign
immunity with respect to jurisdiction and waivers of sovereign immunity with
respect to execution.1 By entering into investment treaties states have waived
their jurisdictional immunity, but the argument that a state's waiver of
jurisdictional immunity should encompass a waiver of immunity in sovereign
assets themselves has so far been unsuccessful in the investment treaty context,
and has met with only minimal success in cases involving state contracts.2
Investors are left to proceed against a state's commercial assets, assuming they
can locate them and defeat any arguments the state makes respecting their
governmental function. These hurdles might prove too large for many investors to
surmount.3 Thus, the international community has created an elaborate