Award as an Investment: The Value of an Arbitral Award or the Cost of Non-Enforcement.

This article explores two themes. The first one addresses the legal nature of arbitral awards and an attempt is made to offer a legal definition also by looking at the legal nature of arbitration and related theories. The conclusion is that awards are de facto and de jure functional equivalents of court judgments. In this regards the article also looks at the ‘value' of arbitral awards. The second theme is whether the interference of judicial or other State authorities with the enforcement of a foreign arbitral award may be the trigger for investment protection (for treatment short of fair and equitable treatment or even expropriation) in investment treaty arbitration; this may be on the basis of a bilateral investment treaty and/or the Convention on the Settlement of Investment Disputes between States and National of Other States (‘ICSID Convention’). It is well established that States party to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’) have a public international law obligation to enforce a foreign arbitral award unless they find that one of the limited grounds to resist enforcement exists. A number of recent cases rely on investment treaties to establish jurisdiction against States which aggressively and arbitrarily or negligently and willfully refuse to enforce an award with a foreign party beneficiary. While a trend emerges there are also cases which reject such applications for lack of jurisdiction under investment treaties. The article provides guidance as to which State conduct in relation to enforcement of arbitral awards may warrant investment arbitration. [ABSTRACT FROM PUBLISHER]