State Immunity and the Recognition and Enforcement of ICSID Awards: Taking Stock

This article analyses recent decisions on the interaction between domestic state immunity laws and the recognition and enforcement of awards made under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), focusing primarily on the English Court of Appeal’s decision in Infrastructure Services Luxembourg v. Kingdom of Spain. First, it is argued that proceedings for the recognition and enforcement of ICSID awards should not involve any question of state immunity (or its purported waiver). It is only when considering the award’s execution that the question of immunities arises. Second, if that first proposition is incorrect, then it is improper to rely solely on the language of Article 54(1) of the ICSID Convention for the purposes of establishing that a respondent state has waived its jurisdictional immunity or that it has submitted to the jurisdiction of the enforcing court. The language of provisions within ‘framework’ Conventions like the ICSID and New York Conventions do not on their own supply conclusive evidence of a state’s waiver of immunity. Courts should instead have regard to more specific indicia of waiver. Before English courts, the question of waiver in ICSID award registration proceedings is more properly addressed via the arbitration exception in section 9 of the state Immunity Act (SIA), rather than via section 2.