State immunity as defense against enforcement of international investment arbitral awards: A pursuit to remedy the Achille's Heel of investor-state arbitration

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ID: 286434
2018
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Abstract
This study assesses the effect of the invocation of state immunity as a defense by a respondent-State against execution of arbitral award. The research reveals that, a successful investor in investment arbitration might have obtained a muted victory when the respondent-State raises the State immunity defense as a ground to preclude the attachment of its assets during the enforcement of the award. And this poses as a legitimate concern because of the failure of the enforcement vehicles to address the conflict. Despite the proenforcement development of the ICSID and New York Convention, they refer execution to the national laws of the place where execution is sought. Furthermore, notwithstanding the employment of the restrictive theory of immunity by many States, the investor bears the great burden to locate State assets suitable for attachment, and would have to prove that the suitability is in line with the national law of the forum State, which was proven to be very tedious and difficult as respondent-State may not only remove its assets within the jurisdiction of the court, but may also tag them as privileged properties, unless the property in question is clearly designated to be commercial. Therefore this study aims to develop a Guideline, based on the solutions proposed by the experts in the field, that ensures execution without impairing the rights and interests of the respondent-State and for the latter to attract even more investments, since total preclusion of invocation of the state immunity from execution is impossible.
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Authors Dado, Kylie Kaur Manalon
Journal Malay Journal
Year 2018
DOI
DOI not found
URL
https://animorepository.dlsu.edu.ph/etd_masteral/7235
Keywords Keywords not found

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