A Study On The Recognition And Enforcement Of ICSID Arbitral Awards By Third Countries

At present,ICSID centers are one of the most effective ways to resolve disputes between host countries and foreign investors.The Washington Convention has a set of"self-sufficient" operation mechanism,from the operation of arbitration procedures to the recognition and enforcement of awards,the Convention has all the provisions,and its recognition and enforcement mechanism has the characteristics that other international arbitration institutions do not have:mandatory,strict,internal independence.Based on the unique recognition and enforcement mechanism of the ICSID Center,disputes between host countries and foreign investors are effectively resolved through depoliticized legal means.However,in the process of obtaining the winning award and seeking the recognition and execution of the court of the losing country,the investor is confronted with many difficulties.Instead,the investor applies to the home country or other third-party contracting parties for the recognition and execution of the award,which results in a practical problem that needs to be solved urgently--the sovereign immunity of the state.The existence of State immunity affects whether the purpose of the successful investor’s claim for the execution of the host state property in a third State(a contracting State)can be achieved.This paper will focus on the recognition and enforcement mechanism within the Washington Convention,with articles 53 to 55 as the legal basis,from the theoretical and practical aspects of the state immunity of execution immunity is the specific reason for the obstruction of arbitration award.China,as the world’s second largest economy,has achieved a major victory in the epidemic,and will usher in new opportunities for development in attracting foreign investment,while investment disputes involving China will continue to increase.Both the host country and the country applied for enforcement of ICSID arbitration awards have to face the recognition and enforcement of awards.Therefore,in order to protect the property of our country and safeguard the rights and interests of overseas investors,the exemption position is changed and the relevant exemption law is introduced,which can effectively solve the problem of recognition and execution of ICSID arbitration award.This paper mainly analyzes the recognition and enforcement of ICSID arbitration awards in third countries from four parts:The first part mainly discusses the recognition and enforcement mechanism of ICSID rulings.Articles 53 to 55 of the Washington Convention firstly stipulate the binding force of the award on the parties to the dispute.Secondly,the Convention enpowers each State party to recognize the validity of the ICSID arbitral award and the specific procedures for the execution of the award.Finally,the Convention adopts an open-ended provision to transfer the final execution power of the award to the immunity law of each State party.Through the interpretation of the treaty,this part also summarizes the characteristics of ICSID arbitration award recognition and enforcement mechanism,including:mandatory,strict and internal independence.The second part mainly analyzes the influence of state immunity on the recognition and enforcement of ICSID awards from the theoretical level,and takes the theory of absolute immunity and the theory of limited immunity as the entry point to deeply analyze the relationship between immunity from execution and immunity from jurisdiction.This paper argues that the sovereign immunity of states is an unavoidable problem in the settlement of international investment disputes.For the issue of jurisdictional immunity,after each State party accedes to the Washington Convention,the bilateral and multilateral investment agreements signed by the State party and other State parties refer the investment disputes to the ICSID Center for settlement,which means the waiver of jurisdictional immunity.With regard to immunity from execution,the Convention leaves the final power of execution to the decision of the State party’s domestic legislation.The author believes that immunity from jurisdiction and immunity from execution should be distinguished,and the waiver of immunity from jurisdiction cannot be extended to the issue of immunity from execution.The issue of immunity from execution has a strong attribute of domestic law,and it has really become the root cause affecting the realization of ICSID arbitration awardimmunity from execution.The third part from the practical level,LETCO v.Republic of Liberia,Compagnie Noga v.Russian federation,S.A.R.L.Benvenuti&Bonfant v.People’s Republic of Liberia the Congo case,as a starting point,compares the different immunity laws and immunity positions of some developed countries,summarizes the experience of third-party States parties in handling the recognition and enforcement of ICSID arbitration awards,and makes an in-depth analysis of the host country’s defense of state immunity against the applied state(a third-party state party)based on the convention and domestic law.The treatment of recognition and enforcement of ICSID arbitral awards.The fourth part,from the perspective of the third party,proposes a set of feasible countermeasures for the third party when the foreign investor applies to the third party to recognize and enforce the ICSID arbitration award,and when the host country defends the exemption from execution.At the same time,China,as a member of the Convention,will open its door again with the end of the epidemic,and its investment and business environment will surely be improved.A large number of foreign enterprises will enter China,and Chinese enterprises’ overseas investment will also be optimized.In the future,China may become the country applied for execution or the home country of the successful investors.Due to the lack of Chinese legislation on recognition and enforcement of ICSID rulings and subject to the immunity of sovereign states,in order to better solve investment disputes and protect the rights and interests of domestic and overseas investors,a feasible scheme with Chinese characteristics is proposed on the basis of sorting out relevant domestic laws and judicial interpretations on recognition and enforcement of ICSID rulings in China:Including perfecting the supporting provisions of the Washington Convention,transforming the exemption position,introducing the exemption law with Chinese characteristics and the corresponding judicial interpretation.