State Compliance with Investment Awards

Abstract

When the ICSID system was being set up, the matter of compliance with investment awards rendered against States was considered "academic". ICSID’s architects believed that as long as States would remain under an international obligation to comply with awards they would generally do so. Writing in the 2000s and early 2010s, commentators observed that States have generally complied with adverse investment awards. In the last two decades, the number of investor-State arbitrations has soared, and more and more damages awards have been rendered against States. This analysis seeks to contribute to a fact-based debate on the future of international investment law by addressing an under-examined but essential aspect of that regime, namely, compliance with investment awards. It assesses empirically the experience with investment arbitration of the thirty-two most sued States, covering approximately 70% of all cases initiated through to the end of 2019. The data examined indicates that the ICSID founders’ prognosis that compliance with investment awards would be a non-issue—framed as it was in such sweeping terms—has not held true. Whereas the majority of States have complied with adverse awards (usually after seeking annulment), the instances of non-compliance or significantly delayed compliance are important. A significant proportion of the cases where States have been ordered to pay damages have required enforcement proceedings. Instances of home State’s intervention--and inevitably re-politicization of the dispute--have resurged. There is thus a gap between the regime’s authority and effectiveness that needs to be addressed. Still, and regardless of its imperfections, it could be said that the modern investment dispute resolution system continues to be revolutionary, in particular when compared to the antecedent regime, which rested almost entirely on the inclination of the home State to espouse its nationals’ claims.