Workshops on enforcement and annulment of investment arbitral awards with Prof Hilmar Raeschke-Kessler, Andrea Menaker and Agnieszka Zarowna, 5 July 2019
As an arbitration practitioner, it is important to be aware of the peculiarities of the enforcement of arbitral awards rendered in investment disputes. On 5 July 2019, the IDR LL.M. class had the opportunity to learn more about the personal insights of three experts in this field in two guest lectures: Prof Hilmar Raeschke-Kessler, an experienced arbitrator and advocate with permission to represent clients in the German Federal Supreme Court, as well as Andrea Menaker and Agnieszka Zarowna of White & Case in London.
In his lecture on the topic “Enforcement of arbitral awards with emphasis on awards under investment treaties”, Prof Raeschke-Kessler set the basis for further discussions by clarifying that investment arbitrations are based on treaties in the realm of public international law, although they might seem to involve commercial questions. Prof Raeschke-Kessler further clarified that the enforcement and annulment of investment arbitration awards in particular still remains an issue of public law by means of international treaties. Moreover, from the enforcement perspective, he highlighted that although an agreement in an investment treaty on arbitration as the dispute resolution mechanism constitutes a waiver of a state’s immunity rights, there is still a distinction between acta iure imperii and acta iure gestionis. The latter term refers to activities of a state that are of a commercial nature, and such acts are in any case not immune from the jurisdiction and process of local courts. At the end, Prof Raeschke-Kessler, who represented one of the parties in the Federal Supreme Court himself, closed the lecture with a critical discussion of the recent decision of the ECJ in Achmea.
In the afternoon, Ms Menaker and Ms Zarowna jointly delivered another workshop dedicated to “The ICSID annulment procedure and enforcement/set aside of investment treaty awards in national courts”. Whilst Ms Menaker elaborated on the annulment mechanism within the ICSID Convention, Ms Zarowna focused on the same issue in non-ICSID investment arbitration. Both guest lectures combined provided the IDR LL.M. class with an interesting insight into the particularities of the enforcement and set aside procedure in investment arbitration.
Pengxiang Wang, IDR LL.M. Graduate 2019