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Generally, the enforcement of awards represents the conversion of a favourable award into concrete relief for the claimant, for example, by leading up to execution proceedings.1 The enforcement of investor-State arbitration awards falls into two main categories: enforcement of awards made under the ICSID Convention, and enforcement of non-ICSID awards, which is generally pursuant to the New York Convention or other systems such as for the enforcement of OHADA awards.
Blackaby N., Partasides C., Redfern A. and Hunter, M., Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press, 2015, at 11.22:
“By contrast, where a court is asked to enforce an award, it is asked not merely to recognise the legal force and effect of the award, but also to ensure that it is carried out, by using such legal sanctions as are available. Enforcement goes a step further than recognition. A court that is prepared to grant enforcement of an award will do so because it recognises the award as validly made and binding upon the parties to it, and therefore suitable for enforcement. In this context, the terms ‘recognition’ and ‘enforcement’ do run together: one is a necessary part of the other.”
Recognition and enforcement of ICSID awards is governed by the ICSID Convention. All State parties to the ICSID Convention are obliged to recognise ICSID arbitration awards. An award is to be binding and not subject to any appeal or any other remedy.2 The ICSID Convention accepts no grounds whatsoever for national courts to refuse recognition and enforcement of ICSID tribunal awards, the effect of which is to make the ICSID Convention even more favourable to the recognition and enforcement of awards than the New York Convention.3 See further Compliance with arbitral awards, Section III.A.
Under the framework of the ICSID Convention:
Reed, L. F., Paulsson, J. and Blackaby, N., Guide to ICSID Arbitration, Kluwer Law International, 2010, pp. 180-181:
“A strength of the ICSID Convention is that it is even more favorable to recognition and enforcement of awards than the New York Convention. The ICSID Convention accepts no grounds whatsoever for national courts to refuse recognition and enforcement of ICSID tribunal awards. It requires, instead, that the national courts of Contracting States recognize and enforce monetary awards immediately, as if they were final judgments of the local courts themselves. The courts may not vacate ICSID awards, because they are a-national and subject to the ICSID treaty regime rather than to national law.”
Reed, L. F., Paulsson, J. and Blackaby, N., Guide to ICSID Arbitration, Kluwer Law International, 2010, at 185:
“Although the ICSID Convention specifically insulates awards from review under national laws at the recognition and enforcement stage, it offers no such insulation when awards are to be executed against specific assets. The Convention, however supportive of foreign investment and investors, does not obligate a Contracting State to execute an ICSID award in circumstances where an equivalent final judgment of its own courts could not be executed. In such circumstances, national law on sovereign immunity from execution may prevail (subject to other international instruments). […] In other words, national courts in Contracting States must recognize and enforce awards according to the Convention, i.e., immediately and without review, but they may execute them according to their own national law.”
Recognition and enforcement of non-ICSID awards are generally governed by the laws of the State where setting aside or enforcement proceedings are brought.7 Where the State where enforcement is sought and the seat of the arbitration are both parties to the New York Convention, recognition of the award is subject to the New York Convention. The New York Convention, Article V, sets out exhaustive grounds for a court to refuse to recognise or enforce an award.8 Parties commonly choose to seat their arbitration in a country that is party to the New York Convention in view of eventual enforcement of the award. See further Compliance with arbitral awards, Section III.B.
Enforcement of OHADA awards, i.e. those made in arbitrations seated in one of the OHADA States,9 can be sought under the OHADA Uniform Act on Arbitration Law10 incorporated as domestic legislation within OHADA States. If the investment arbitration award has been rendered by an arbitral tribunal under the auspices of the Common Court and Justice of Arbitration (CCJA), its enforcement or annulment within the OHADA States is governed by the CCJA Arbitration Rules.11
At the moment the 17 member States of OHADA are Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Côte d'Ivoire, Democratic Republic of Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Republic of the Congo, Senegal, and Togo.
Stay of enforcement of an ICSID award is available where a party applies to annul, interpret or revise all or part an award. That party may then request for a stay of enforcement, which will be decided by the ad hoc Committee constituted to hear the request for annulment.12 Where an application for revision, interpretation or annulment contains a request for a stay of enforcement, the Secretary-General shall stay the award provisionally.13
Stay of enforcement of non-ICSID awards is generally governed by the law of the State where recognition or enforcement is sought. Where the New York Convention applies, Article VI provides that if an application for the setting aside or suspension of the award has been made, the court may adjourn the decision on the enforcement of the award.14 It is open to a court to stay only part of an award, while ordering the rest to be enforced.
Gaillard, E. and Siino, B., Enforcement under the New York Convention, Global Arbitration Review
Douajni, G., Recent Developments in OHADA Arbitration, Global Arbitration Review.
Kronke, H., Nacimiento, P., Otto, D. and Port, N. (eds.), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention, Kluwer Law International, 2010.
Reinmar, W. (ed.), The New York Convention: A Commentary, 2nd ed., Hart Publishing, 2019.
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