Enforcing arbitral awards against sovereign states : the validity of sovereign immunity defence in investor-state arbitration

• Main Author: Joemrith, Khanapoj
• Published: SOAS, University of London 2015
• Subjects: 346
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.703390

This thesis concerns the inter-relationship between international investment law and the law of sovereign immunity focusing on the enforcement of arbitral awards against sovereign states. The core hypothesis is that investor-state arbitration is severely hampered in its role of providing a remedy to foreign investors for losses to their investments caused by the breaches of International Investment Agreements by host states. In particular, there exists the risk that an arbitral award against the respondent state can be undermined by the respondent state's use of the sovereign immunity doctrine against execution as a defence against the payment of compensation. Accordingly, this leads to the main research question: Whether the defence of sovereign immunity doctrine should be fully available to a state in order to refuse the enforcement of arbitral awards, or should it be subject to limitations specified in the municipal sovereign immunity law of the country, in which the enforcement is sought? The major problem of investor-state arbitration is the extent to which the consent of a state to waive its immunity from enforcement and execution in both arbitration clauses and municipal sovereign immunity laws actually exists in any given case. The thesis argues that international investment law is a hybrid law displaying both private and public law characteristics. This can influence the development of rules concerning immunity from execution. Accordingly, the balancing of state obligations and investor rights under a proportionality analysis could be considered as an effective tool to promote the investment and to protect the interests for both investors and host countries towards a fair and impartial forum, where such immunity is in issue. Lastly, this attempt could not be effective without the development of international conventions and municipal laws on sovereign immunity in parallel to secure the execution of arbitral awards before a municipal court as well as to support the applicability of international conventions. Thus, this would limit the excessive or unjustified claims of sovereign immunity as a defense against the enforcement of arbitral awards in which state responsibility could not be avoided for a breach of investment treaty obligations towards private investors.