Investment-Treaty Law & Arbitration (Part 3): Remedies, Annulment, and Enforcement

This program is the third in a multi-part curriculum on investment treaty law and arbitration by Stephen Anway, partner at Squire Patton Boggs and the 2014 Client Choice Award winner for arbitration in New York. Whereas the first two parts of the curriculum focused on pre-arbitration matters, investment-treaty arbitration procedure, and the merits of disputes under investment-treaties, this third part focuses on issues that can arise after the resolution of the merits of the dispute - most notably, remedies in investment-treaty arbitration, the annulment of the award, and the enforcement of the award. 

Because remedies in investment-treaty arbitration can be rendered against the State, tensions exist between sovereign immunity, regulatory sovereignty, and investor protection under international investment law. This course describes the various types of remedies traditionally available in the US and examines how they have fared in investment-treaty arbitration—including restitution, specific performance, declaratory judgment, and compensatory and non-compensatory damages, such as punitive damages. With regard to damages, this course maps the valuation methods that have been applied by investment treaty tribunals in damage assessment. 

After reviewing the remedies available in investment-treaty arbitration, Mr. Anway then turns to the issuance of the award and the circumstances under which the award can be annulled or set-aside. He explains that, in general terms, the grounds and procedure by which an award can be annulled or set-aside depends on whether the dispute is adjudicated by a tribunal operating under the auspices of the International Centre of Settlement of Investment Disputes (“ICSID”), which has a self-contained system, or a tribunal operating under the purview of a different institution or an ad hoc tribunal, where setting aside of the award will be governed by the national law of the seat of the arbitration.

Mr. Anway describes how that same distinction must be drawn with regard to enforcement of the award: where it is an ICSID award, the ICSID Convention will govern the enforcement proceeding; where it is a non-ICSID award, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) is likely to apply. 

In this course, Mr. Anway reviews:

• Different remedies under public international law
• Various valuation methods to assess damages
• Annulling (setting aside) investment-treaty awards
• Enforcing investment-treaty awards
• Sovereign immunity considerations

Learning Objectives:

I.   Understand which remedies are available in investment-treaty arbitration

II.  Learn methods of valuation traditionally used by investment-treaty tribunals

III. Review sovereign immunity principles in the context of remedies in investment-treaty arbitration

IV. Know the circumstances under which investment-treaty awards can be annulled or set-aside

V.  Grasp the basic enforcement structure for investment-treaty awards