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.
Uncharted Waters: Financial Crisis and Enforcement of ICSID Awards in Argentina
The creation of the International Centre for Settlement of Investment Disputes (ICSID)1 conceived a system of dispute resolution in 1966 that would allow judicial settlements between foreign investors and state governments for disputes that previously lacked a forum for resolution.2 ICSID originated under the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the Convention) and was designed
Retrospective Remedies in the WTO after Automotive Leather
Prior to the Australia -- Automotive Leather implementation report, it was widely understood by WTO Members that the WTO did not provide for retrospective remedies. The multilateral trading system was about a balance of rights and obligations with WTO remedies to preserve future trading opportunities rather than redress past injury. The Automotive Leather implementation panel's findings that 'withdraw the subsidy' under Article 4.7 of the Agreement on Subsidies and Countervailing Measures (the SCM Agreement) required retrospective repayment of past subsidies appeared to challenge this long-standing understanding. This paper examines the Automotive Leather findings on remedy and argues that retrospective remedies have no basis either in past GATT practice nor under the WTO Agreements. The findings raised fundamental constitutional and democratic governance concerns given the legal constraints on the ability of Member governments to recall subsidies already provided lawfully and in good faith to private companies. They also highlight the need for caution in transposing currently accepted rules of the law of the European Community into the WTO legal order. Given the fundamental legal and policy concerns, the Automotive Leather findings on retrospective remedy have not been followed by panels and parties in subsequent WTO disputes. Canada's comments at the February 2000 meeting of the Dispute Settlement Body -- that the findings will be treated by WTO Members 'as a one-time aberration of no precedential value' -- have therefore proved prophetic. Copyright Oxford University Press 2003, Oxford University Press.