I. Introduction -
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) has become a critical mechanism for the settlement of investor-State disputes and provides binding and streamlined procedures for the enforcement of arbitral awards rendered in accordance with its framework. The United States is party to the ICSID Convention and has implemented its obligations under the Convention into the U.S. Code by providing that U.S. courts must recognize every arbitral award rendered pursuant to the ICSID Convention as if it were a “final judgment of a court in [the United States].”1 Notwithstanding this mandate, exactly what procedures federal courts may utilize to domesticate and enforce ICSID awards in the United States remains unsettled, and recent decisions of the New York and District of Columbia district courts appear to illustrate a developing rift between courts in those jurisdictions about the proper procedure to be followed when asked to enforce an ICSID award; the courts’ disagreement specifically concerns whether the ex parte procedures for recognizing sister-state judgments under state law may be used to recognize an ICSID award. While the state of the law on this issue is still somewhat uncertain in the District of Columbia, the New York courts have made clear that ICSID award creditors may take advantage of expedited, ex parte procedures in seeking recognition of an ICSID award.
II. Background -
The recognition and enforcement of ICSID awards is provided for in Articles 53 through 55 of the Convention. Collectively, these passages demonstrate a desire to eliminate review of awards by national courts. See, e.g., ICSID Convention Art. 53 (awards “shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention.”).
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