Potential Enforcement Mechanisms for Decisions of a Multilateral Investment Court
In recent years, demands for reforming investor-state arbitration have become louder. One of the rather incisive proposals in this regard is to set up a Multilateral Investment Court (MIC). Because of the still early stage of development there is much roo
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Contents 1 Introduction 2 Enforcement of MIC Decisions Under Existing Mechanisms 2.1 Enforcement Under the New York Convention 2.2 Enforcement Under the ICSID Convention, Including Possibility of inter se Modification 2.3 Applicability of Documents Ensuring the Enforcement of Judgments 2.4 Interim Result 3 Enforcement of MIC Decisions Under Yet-To-Be-Created Instruments 3.1 Independent Enforcement Mechanism Included in the MIC Statute 3.2 New York Convention 2.0 3.3 ICSID Convention 2.0 3.4 Taking International Documents Ensuring the Enforcement of Judgments as a Model 3.5 Additional Protocol to the Existing NYC 3.6 Additional Protocol to International Documents Ensuring the Enforcement of Judgments 3.7 Interim Result 4 Alternative Enforcement Method: Fund System 4.1 Organisational Form of a Fund System 4.2 Functioning of the Fund 4.3 Interim Result 5 Summary and Outlook Annex 1: Summarising Table on the Results of the Paper Annex 2: Convention on the Recognition and Enforcement of Decisions Made by the Multilateral Investment Court (MIC) (New York Convention 2.0) References
Abstract In recent years, demands for reforming investor-state arbitration have become louder. One of the rather incisive proposals in this regard is to set up a Multilateral Investment Court (MIC). Because of the still early stage of development there is much room for the unprejudiced expression of ideas and suggestions
M. Bungenberg (*) and A. M. Holzer Europa-Institut, Saarland University, Saarbrücken, Germany e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 European Yearbook of International Economic Law 2020, European Yearbook of International Economic Law 10, https://doi.org/10.1007/8165_2020_48
M. Bungenberg and A. M. Holzer
regarding its organisational structure. This article aims to contribute to this process and intends to identify possible arrangements for effective enforcement mechanisms for the decisions of the MIC. The present paper will therefore look at the different ways in which decisions of an MIC could be enforced. Part B will deal with the question whether existing conventions concerning the enforcement of arbitral awards or the international enforcement of judgments should and could be used for the enforcement of MIC decisions. Part C will then address the possibilities of creating new international instruments or agreements for the enforcement of MIC decisions aiming at obliging not only MIC members but also third states to enforce MIC decisions. The options to be addressed include establishing an MIC Statute containing provisions on the enforcement of MIC decisions, the creation of a new international convention along the lines of the New York Convention, the ICSID Convention, or existing conventions on the international enforcement of judgments. Additionally, the advantages and disadvantages of agreeing on additional protocols to existing conventions are discussed. A further, however entirely different approach will then be addressed in the last part: MIC decisi
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