Investor Presentaiton

156 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL with each other, leading to the same problems of inconsistency and contradiction of decisions as with arbitral tribunals. This is perhaps not surprising; the ad hoc committees are not charged with creating consistent interpretations of investment treaty provisions. Yet the lack of consistency is one of the reasons that an appellate mechanism might be desirable (see III.B.1 below). R. Enforcement of arbitral awards Most treaties make clear that the awards handed down by ISDS tribunals are binding on the parties to the proceedings. The BIT between Bosnia and Herzegovina and San Marino (2011) contains language typical in this regard: "The arbitration award shall be final and binding on both parties to the dispute and shall be executed according to the law of the Contracting Party concerned" (Article 10.6). Compliance with an arbitral decision rendered against a State under an investment treaty thus becomes an international obligation of the State whose violation can, for example, give grounds for countermeasures. 185 Most States have honoured their obligations and paid awards voluntarily, though there have been several known cases of non- payment. In the event a State does not comply with an arbitral award, investors can seek enforcement in national courts and locate commercial assets in an enforcing jurisdiction. They can also seek the assistance of their home government. Article 27 of the ICSID Convention allows the exercise of diplomatic protection in such cases. In consonance with Article 27, most IIAs also permit, or at 185 186 Peterson and Hepburn, 2011. In addition to the preceding governments, Argentina, Russia, and Zimbabwe have been reluctant to honour awards against them. See Peterson, 2010. 186 "No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other UNCTAD Series on International Investment Agreements II

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