CONSENT TO ARBITRATE AS AN IMPLIED WAIVER OF IMMUNITY FROM EXECUTION IN THE CONTEXT OF THE ICSID CONVENTION

Abstract

The effectiveness of ICSID awards, were States to fail to comply with them, ultimately relies on the likelihood of their enforcement before domestic courts; an outcome that finds its main obstacle in the doctrine of immunity from execution, which shields foreign States' property from any kind of coercive attachment. Consequently, the theory of the implied waiver has been suggested as a solution to the problem in light of the Creighton case. After a preliminary framework of the ICSID enforcement system and a concise overview to contextualise the issue of immunity, the paper proposes an analysis of the mentioned theory throughout a breakdown of the leading objections raised against it. Accordingly, attention will be brought to the criticism maintaining that the proposed theory cannot find application within the context of the ICSID Convention, to the position holding that it was refuted by subsequent case-law, and, lastly, to the requirement that the waiver must be explicit, condition that appears to be incompatible with the theory of implied waiver.