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Enforcement and Recognition of ICSID awards [1]
['Jus Mundi']
Date: 2024-07
5.
In spite of this, the procedural law of many States allows enforcement, execution or both, to be opposed on public policy or other grounds.11 As such, domestic courts do from time-to-time entertain applications opposing enforcement or execution of ICSID awards and in so doing evaluate the award or procedure that led to it for compatibility with local constitutional or public policy requirements, contrary to terms of the ICSID Convention.12 While there are no readily apparent examples of final judgments declining enforcement, there are a number of examples of courts positively validating ICSID awards against these domestic law standards before enforcing the pecuniary obligations therein. For example, after CMS Gas Transmission Co. v Argentina, the then Attorney-General for Argentina stated publicly that ICSID awards could be reviewed by the Argentine Supreme Court and if found to be incompatible with the constitution, could not be complied with. Ultimately, the award in CMS was enforced in the courts of the United States.13 Yet, this issue is not unique to Argentina. A more recent example is seen in the State aid proceedings before the courts of the European Union,14 relating to the ICSID award issued in Micula v Romania.15 Further, amendments to the Constitution of the Russian Federation which came into force on 4 July 2020, permit its Constitutional Court to decide whether to implement foreign or international arbitral awards that impose obligations on the Russian Federation depending on whether the awards are considered to be contrary to Russian public policy.16 Accordingly, in spite of the terms of Articles 53 and 54, the courts of some States are permitted by domestic law to review ICSID awards for consistency with domestic public policy, their constitution or other standards.
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[1] Url:
https://jusmundi.com/en/document/publication/en-enforcement-and-recognition-of-icsid-awards#:~:text=In%20practice%2C%20where%20a%20State,the%20award%20may%20be%20executed
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