Journal Article

A (Counter) Balancing Act: The Express Power to Order a Security on a Stay of Enforcement Pending Annulment

Brian Kotick and Joel Dahlquist Cullborg

in ICSID Review

ISSN: 0258-3690
Published online February 2018 | e-ISSN: 2049-1999 | DOI: http://dx.doi.org/10.1093/icsidreview/six029
A (Counter) Balancing Act: The Express Power to Order a Security on a Stay of Enforcement Pending Annulment

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Abstract

ICSID has advised all 153 of its Members that it is beginning the process to further update the ICSID rules and regulations. One such amendment to be considered is whether the ICSID Arbitration Rules should include an express provision concerning a security for a stay of enforcement of awards. A background paper to the preparation process for these amendments explained this specific proposal as the following: ‘Similar to security for costs, parties might be assisted by an express rule addressing when an ad hoc committee could order security on a stay of enforcement of awards.’2

 By reviewing the ICSID jurisprudence concerning the stays of enforcement pending annulment, including specific jurisprudence focusing on orders of security, this article will endeavour to determine whether parties would be assisted by an express rule and, if so, what that express rule should be. This article will start with a short introduction to continued stays of enforcement (Section I), followed by a review of the trends in ICSID jurisprudence on stays of enforcement (Section II). For the sake of comparison, this article will also briefly discuss trends for stays of enforcement in the non-ICSID context (Section III). This article will then review the approaches of ad hoc committees exercising their discretion to issue a stay of enforcement subject to a condition or provision of security (Section IV). Finally, the article will analyse the ‘assistance’ that an express rule for ordering a security on a stay of enforcement could provide (Section V).

Journal Article.  10991 words. 

Subjects: Arbitration ; Company and Commercial Law ; Settlement of Disputes

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