Systemic Reflections on Argentina's Non-Compliance with ICSID Arbitral Awards: A New Role of the Annulment Committee at Enforcement?
Argentina’s non-compliance with arbitral awards has brought to the fore a question concerning compliance problems under the ICSID system. Argentina’s ignorance of its ICSID obligations might potentially undermine ICSID arbitration as an efficient mechanism for the resolution of investment dispute. In this paper, drawing from recent decisions on Argentina’s requests for stays of the award’s enforcement in annulment proceedings, the author considers that the annulment committees can be expected to play a more active role to facilitate a better compliance at the post-award enforcement stage. That is, in the face of persistent non-compliance, the annulment committees should take into account the possible inducement effect when they decide whether there has been appropriate assurance of compliance or decide what should be done so as to secure the compliance in their decisions concerning the stays. This should have important implications for the overall ICSID enforcement system in the future.
The divergence and convergence of ICSID and non-ICSID arbitration
This thesis is an inquiry into the inherent divergence and emerging convergence of ICSID and non-ICSID arbitration. Based on the argument that investor-State arbitration is an intricate interplay of diverse actors with compatible or disparate interests, this study investigates the substantial divergences between ICSID and non-ICSID arbitration by evaluating the jurisdiction of tribunals, the role of institutions, post-awards remedies and the recognition and enforcement of arbitral awards. It also examines the consequential, but discrepant, impact of the divergences on the safeguarding of State sovereignty, the protection of foreign investors’ rights, the enhancement of legitimacy of investment arbitration and the endorsement of public interests. It further puts forward fair, efficient, accountable and legitimate ways that would tentatively or constructively improve the entire dispute resolution system in the realm of international investment. In scrutinizing the interplay and interaction between ICSID and non-ICSID arbitration, the thesis argues that the symbiosis of ICSID and non-ICSID arbitration creates and maintains a relatively stable environment where a number of factors serve as engines for promoting directly or indirectly the convergence of ICSID and non-ICSID arbitration.
World Trade Organization (WTO) Appellate Body Report: United States— Tax Treatment for “Foreign Sales Corporations”
Some of the legal analysis in this study derives from joint work between Robert Howse and Susan Esserman on this ruling, ‘‘Trade disputes quire fairer arbitration,’’ FT.com,