Abstract

What good is a victory on paper if it cannot be enforced in practice? For an investor, an unenforceable award is often no better than no award at all. ICSID awards are meant to be final, binding, and self-contained, yet at the execution stage, these attributes begin to erode, permitting states to raise the defense of immunity and avoid pecuniary obligations of the award despite consenting to arbitration. The article systematically addresses the problem of execution in the context of the United States, where Article 55 of ICSID is weaponized to shield state assets. 

The article reinterprets Article 55 in view of its enforcement purpose, suggesting that the provision was not intended to stand in the way of the execution of awards, but to offer contracting states the autonomy to define their approach to sovereign immunity. Central to the analysis, is the study of the waiver exception under the FSIA. Courts treat the ICSID accession as a waiver of jurisdictional immunity. But, can it extend to waive execution immunity, as well? The research study has attempted to provide a comprehensive answer to this question, with comparative insights from the English Jurisdiction. Furthermore, the article exhaustively explores judicial attitudes in the United States towards the acceptance of the principle of double waiver and proposes how it can be effectively accommodated within the U.S. legal system to cure the enforcement gap. 

In the end, several legal, regulatory, and market-driven recommendations are also provided to resolve the problem of execution, ensuring that arbitration remains a shield for rights, not a refuge for evasion.