Sovereigns Rule Again: Recent Challenges to Enforcement and Execution of Arbitral Awards against Sovereigns

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216208%3A11220%2F15%3A10325905" target="_blank" >RIV/00216208:11220/15:10325905 - isvavai.cz</a>

Result on the web

<a href="http://arbitrationlaw.com/library/sovereigns-rule-again-recent-challenges-enforcement-and-execution-arbitral-awards-against" target="_blank" >http://arbitrationlaw.com/library/sovereigns-rule-again-recent-challenges-enforcement-and-execution-arbitral-awards-against</a>

DOI - Digital Object Identifier

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Result language

angličtina

Original language name

Sovereigns Rule Again: Recent Challenges to Enforcement and Execution of Arbitral Awards against Sovereigns

Original language description

The last two decades have been marked by a sharp increase in international arbitral proceedings brought by private parties against states. The ability to bring disputes against states to international fora is, however, only a partial victory for investors. Unlike international dispute resolution mechanisms, the execution of arbitral awards remains in the realm of national laws, and state immunity from execution, the last bastion of state immunity, seems to be on the rise rather than in retreat, judging from recent decisions from prominent jurisdictions such as the United Kingdom, France, Belgium and Hong Kong. Recent developments in the United States related to obstacles at the enforcement stage such as forum non conveniens also evidence a tendency toward a stricter standard for enforcement and execution of arbitral awards against sovereigns. The current fragmentation of the law on state immunity favors states. The low ratification rate of the 2004 U.N. Convention on State Immunity shows that states are reluctant to abandon their national regimes in favor of an international one. In this author's view, the effort by states to keep state immunity rules within their national realm is a fair counterbalance to the liberalization of private parties' access to international arbitral tribunals for claims against states and the sharp increase in the number of such disputes. In the current context, potential new investors contracting with states are advised to include in their contracts, in addition to an arbitration clause, express and specific waivers of immunity adapted to the new case law. This article includes guidance on how to draft effective waivers of immunity with examples of model clauses. The recent case law will also be presented from a comparative perspective to reveal possibilities of potential forum shopping for state creditors.

Czech name

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Czech description

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Type

J_x - Unclassified - Peer-reviewed scientific article (Jimp, Jsc and Jost)

CEP classification

AG - Legal sciences

OECD FORD branch

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Project

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Continuities

I - Institucionalni podpora na dlouhodoby koncepcni rozvoj vyzkumne organizace

Publication year

2015

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů

Name of the periodical

World Arbitration and Mediation Review

ISSN

1934-3310

e-ISSN

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Volume of the periodical

9

Issue of the periodical within the volume

1

Country of publishing house

US - UNITED STATES

Number of pages

49

Pages from-to

1-49

UT code for WoS article

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EID of the result in the Scopus database

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