Sovereign Immunity And Enforcement Of Arbitral Awards Breaking The Barrier
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| Author | : Temitayo Bello |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2019 |
| Genre | : |
| ISBN | : |
In international commercial arbitration, parties that contract with states and state agencies seek to arbitrate disputes, but an increasing problem is the attempt by these state parties to raise the defence of sovereign immunity to challenge the jurisdiction of the arbitral tribunal or to avoid the enforcement of an arbitral award. It is discouraging in handling disputes with these sovereign entities which serve as major concern particularly with the growing prospect of sovereign defaults leading to cross-border disputes.The article reviewed the judicial decision in Trendtex v. Bank of Nigeria which is critical to the sovereign immunity that spreads across the globe. Award being final and binding as agreed in the parties' agreement should always be honoured. The article discovered that many states always resulted to the sovereign immunity doctrine in order to prevent the enforcement of arbitral awards. This article found that if this continues it may wreck and discourage the cooperation between the investors and the state agencies because investors prefer enforceable arbitration to litigation. The article concluded that by the practice of arbitration, it is honourable for states to allow enforcement of arbitral awards against their states or state agencies for the upliftment of global arbitration. The article recommended that states that have not ratified the New York Convention should do so and also the NYC should be amended to provide that any state party to the NYC has automatically waived the right to claim sovereign immunity when the issue of enforcement of award comes up.
| Author | : R. Doak Bishop |
| Publisher | : Juris Publishing, Inc. |
| Total Pages | : 506 |
| Release | : 2009-09-01 |
| Genre | : Law |
| ISBN | : 1933833297 |
The past decade has seen a veritable explosion of investment treaty and other arbitration claims brought against sovereigns. Many of those cases have been filed before the International Centre for Settlement of Investment Claims (ICSID), which has its own self-contained rules for enforcement. Given this significant increase in sovereign cases and the issues attendant to sovereign immunity, this treatise is timely in addressing the various issues that arise in enforcing arbitral awards against sovereigns. One of the first questions posed to their counsel by clients considering the initiation of an arbitration proceeding against a sovereign state is whether and how the resulting award can be enforced. The origin of the client’s question is usually based in some knowledge that a state possesses sovereign immunity, along with an uncertain concern about the exceptions to such immunity and the difficulties of enforcement against a sovereign’s assets. This uncertainty is understandable, especially in light of the sometimes confusing and even contradictory court decisions in certain jurisdictions. It is these inquiries in their broadest application that form the subject of this treatise. With contributions by eminent and experienced practitioners of the multiple issues that have arisen in various jurisdictions and the key cases that have created the law of enforcement of obligations against sovereigns, this book will provide access to valuable information, add to the transparency of this subject and further spur the consistent development of this area of law. This book is divided into three parts. The first part is general in nature and includes chapters encompassing the subjects of sovereign immunity in general (including both immunity from jurisdiction and immunity from enforcement), treaty obligations to honor awards, diplomatic protection by a claimant’s government to obtain payment of awards, and conciliation and settlement. The second part of the book deals with the means of enforcing awards. Part three of this treatise addresses the enforcement issues that arise in specific jurisdictions in which enforcement against sovereign assets is often sought - in particular, the United States, the United Kingdom, Switzerland, France, The Netherlands, and South America.
| Author | : Monica Feria-Tinta |
| Publisher | : Oxford International Arbitrati |
| Total Pages | : 304 |
| Release | : 2022-07-13 |
| Genre | : Law |
| ISBN | : 9780198806233 |
If Lauterpacht, writing back in 1950, warned about the changing landscape of the law of immunities due to the increased activities of the state in the economic sphere, English courts have never been so busy with regards to the enforcement of foreign arbitral awards against sovereign states today. As foreign direct investment grows, so too does the number of disputes between states and investors. Increasingly these disputes are resolved by international arbitration proceedings but once resolved, the enforcement of awards against states brings its own challenges. Whilst enforcement of arbitral awards should be 'almost a matter of administrative procedure' (to use the language of PetroChina International (Hong Kong) Corp Ltd [2011]), immunities remain to some, a 'hurdle', adding complexity to that process. This book gives the reader the key to understanding the principles governing such a notion in the context of enforcement of arbitral awards. This is the first systematic treatment of the jurisprudence relating to award enforcement against foreign states in England. It provides comprehensive examination of the principles and case-law relating to state immunity in the context of enforcement of international arbitral awards before English courts. It addresses questions such as: What are the principles governing the enforcement of international awards against sovereigns in England? How does the distinction between jurisdictional immunity and enforcement immunity operate in this context? What are the precise contours of such legal notions when they are put into motion by means of procedure? What is the practice of English courts in that regard? This book also covers the complexities arising from enforcement proceedings in other jurisdictions and their relation to proceedings in England. Authored by an expert with unique insight into immunities both as a practising barrister and as an academic, this is an essential resource for anyone interested or involved in enforcement proceedings during which state immunity is invoked.
| Author | : Andreas A. Frischknecht |
| Publisher | : Kluwer Law International B.V. |
| Total Pages | : 461 |
| Release | : 2016-04-24 |
| Genre | : Law |
| ISBN | : 9041186352 |
Merely obtaining a favorable arbitral award or judgment at the end of a dispute holds little value unless the prevailing party is able to enforce it. This book, more thoroughly than any other source, shows practitioners how to navigate the relevant laws in New York—a leading global financial center known for its pro-enforcement policies and the powerful discovery tools it makes available to creditors. No other resource explores the current state of the law in New York as comprehensively as this book. Beyond its sheer practical significance given the likelihood of debtors having assets in (or routing U.S. dollar transactions through) New York, this book provides creditors and their counsel with the critical information they need to define their global enforcement strategy and facilitate their enforcement efforts not only in New York but potentially worldwide. Among the issues and topics that the book tackles are the following: • review of the fundamentals of U.S. practice and procedure for non–New York practitioners; • easy to understand, jargon-free explanation of the often daunting state and federal procedures for enforcement; • up-to-date, clear presentation of the relevant case law, including key state and federal decisions; • explanation of how state and federal laws intersect with international law; • review of significant recent developments impacting a creditor's ability to reach foreign defendants and their assets outside the U.S. in post-judgment execution proceedings; and • comprehensive advice on the practicalities of executing a judgment. Given the critical role New York plays in a host of cross-border transactions and its status as a hub for worldwide judgment and award enforcement, the demand to better understand the laws and judicial system within the state has never been higher. This comprehensive yet practical guide to navigating award and judgment enforcement in New York provides the understanding both the basics and the nuances in this area that is critical for any domestic or international practitioner when advising a client as to the likelihood of collection in or through New York.
| Author | : Ylli Dautaj |
| Publisher | : |
| Total Pages | : 0 |
| Release | : 2023 |
| Genre | : |
| ISBN | : |
| Author | : Faizat Badmus-Busari |
| Publisher | : |
| Total Pages | : 55 |
| Release | : 2013 |
| Genre | : |
| ISBN | : |
International commercial transactions often involve states and state agencies in contractual dealings with individuals and multinational corporations and owing to the reluctance of states to subject disputes arising from their transactions to the courts of another state, arbitration is often the forum of choice for resolution of disputes arising from such international commercial transactions involving state parties and their agencies. The ultimate goal of arbitration proceedings is the rendering of an enforceable award for settlement of the disputes between the parties. However, in the event of an unfavorable award against a state or state agency in international arbitration, one veritable hurdle usually encountered by the successful party in enforcing the award is the plea of sovereign immunity by the state entity. Since the very essence of arbitration is the rendering of an enforceable award, this plea of sovereign immunity serves to frustrate and defeat the essence of entering into an international arbitration with a state entity. Nevertheless, in view of the nature of international business transactions, multinational companies and other international business agencies cannot avoid dealing with state entities and international arbitration remains the preferred dispute resolution forum for these international transactions. So how do these individuals and multinational corporations protect themselves, their investments and the sanctity of their arbitration proceedings from been frustrated by a plea of sovereign immunity by the state party in the event of a successful award?This research aims at undertaking a critical analysis of the concept of sovereign immunity and its applicability to international commercial arbitration proceedings and to highlight recent trends and issues in the area of sovereign immunity that are frequently encountered in international commercial arbitration. Essentially, this research shall examine the problems encountered by non-state parties in enforcing a successful award against state entities and scrutinize the various ingenious ways that have been devised by these non-state parties to side-track and subvert the plea of sovereign immunity by state entities.
| Author | : Julien Fouret |
| Publisher | : Globe Law and Business Limited |
| Total Pages | : 0 |
| Release | : 2015 |
| Genre | : Arbitration and award |
| ISBN | : 9781909416543 |
Présentation de l'éditeur : "The growth in cross-border investments in an increasingly globalised economy means that there are more international disputes between foreign investors and states than ever before. Investment treaty arbitration has thus become the preferred dispute resolution mechanism for resolving disputes with a state relating to foreign investment. However, securing a final arbitral award in this context is often only the beginning of a complicated process in enforcing arbitral awards against sovereigns and state entities. Spearheaded by leading arbitration practitioner Julien Fouret, this new title brings together more than 60 experts to provide both substantive analysis of recurring issues at the enforcement stage of awards and practical perspectives on how to enforce an award based on investment treaties. It explores enforcement issues ranging from the specificities of the International Centre for Settlement of Investment Disputes mechanism to the enforcement of interim relief and the issues of sovereign immunity and state entities; and addresses the means to enforce these types of award in practice. Valuable jurisdiction-specific information is provided for over 25 states, including coverage of the applicable international and domestic legal frameworks and reviews of the most recent practices. Whether you are an arbitration lawyer in private practice or a user of investment treaty arbitration, this title will provide you with holistic, practical and theoretical insight on the last and most important step of an arbitral process against a state or state entity."
| Author | : Erica Devine |
| Publisher | : |
| Total Pages | : 72 |
| Release | : 2012 |
| Genre | : Conflict of laws |
| ISBN | : |
| Author | : Esra Yildiz Üstün |
| Publisher | : Taylor & Francis |
| Total Pages | : 135 |
| Release | : 2022-04-19 |
| Genre | : Law |
| ISBN | : 1000568091 |
This book examines how international investment arbitral awards can be facilitated. It sets out to achieve a fuller conceptualisation and theorisation of awards through a discussion of relevant issues and themes, as well as demonstrating how they can be achieved through a comparative approach that has been conceived and developed with reference to existing deficiencies in the research literature. This contribution is particularly important given the worldwide emergence of investment arbitration as a powerful form of alternative dispute resolution (ADR). The book ultimately seeks to explore and develop solutions that can be directed to an existing oversight and deficit within the international investment architecture. In considering the advantages and disadvantages of each ‘solution’, it will work towards an approach best-suited to upholding the interest of the victorious party at the enforcement stage. The enforcement of arbitral awards on a voluntary basis has proven to be insufficient, and this created a real and ongoing shortcoming that needs to be addressed. International Investment Dispute Awards: Facilitating Enforcement therefore seeks to directly influence existing practice on the part of international institutions, with the intention of helping to develop a more effective resolution. The readerships for this book will include arbitration practitioners, policy-makers (including treaty drafters), academics and postgraduate students interested in the enforcement of investment arbitral awards.
| Author | : Kaj Hobér |
| Publisher | : |
| Total Pages | : 274 |
| Release | : 1994 |
| Genre | : History |
| ISBN | : |
Arbitration of disputes involving Russian entities has increased significantly since the breakup of the Soviet Union. Kaj Hober, with his expertise in Russian & Swedish arbitration & legal systems, guides you through the procedural framework for enforcement of awards as well as all the practical considerations. With this one handy reference, you can secure your judgment & do business with confidence.
