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Issues with the Recognition and Enforcement of Investment Arbitration Awards: As Revealed Through the Yukos Arbitration

Min Kyu Lee 1

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ABSTRACT

An investment arbitration raises questions unique to it compared to ordinary commercial arbitration cases. For instance, an investor who has prevailed in an investment arbitration procedure must first overcome a preliminary hurdle in the issue of sovereign immunity in order to actually receive compensation. In this situation, what is relevant is the notion of sovereign immunity as it is understood under the domestic laws of each state. However, even if an investor overcomes the issue of sovereign immunity through one of several methods which in theory could be relied upon, the losing state could then argue that the recognition and enforcement of the concerned investment arbitration award must be refused in accordance with certain grounds provided by the arbitral rules or domestic laws applicable to each investment arbitration award. Additionally, where the New York Convention is applicable, the losing state could seek to annul the arbitral award based on one of the grounds provided by the New York Convention. One example which accurately shows this problem is the so-called “Yukos Arbitration” regarding the now defunct corporation which was once a Russian oil giant. With respect to this case, on April 20, 2016, the District Court of the Hague annulled the award rendered by the tribunal of the Yukos Arbitration that ordered the Russian Federation to pay $50 billion to foreign investors of Yukos. The decision by the District Court of the Hague explicitly reveals this issue with the recognition and enforcement of investment arbitration awards. Indeed, the investors of the concerned arbitration proceeding have yet to receive anything at all from the Russian Federation despite having received an arbitral award for such an astronomical amount back in 2014. Here, the decision of the District Court of the Hague has added further uncertainty to the future and outlook of the concerned arbitral award. At the same time, however, under the New York Convention an arbitral award does not automatically lose its effectiveness in another jurisdiction simply because it has been annulled at its place of arbitration. Rather, the courts of other states are given discretion over whether to recognize and enforce the award in accordance with the domestic laws of the concerned state. As a matter of fact, the investors of the Yukos Arbitration continue to seek the recognition and enforcement of the arbitral award at hand in jurisdictions other than the Netherlands. As such, one cannot help but become curious about how the decision of the District Court of the Hague will be received elsewhere. After briefly introducing and analyzing both the Yukos Arbitration and the decision of the District Court of the Hague, as a final note this paper questions fundamentally the process of recognizing and enforcing investment arbitration awards under the New York Convention.

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