When Seeking To Enforce An ICSID Arbitration Award Against A Foreign Sovereign, Think FSIA First

An ex parte proceeding in a U.S. court to "recognize," "enforce," or "confirm" an arbitration award against a foreign sovereign is improper. The U.S. Court of Appeals for the Second Circuit issued a lengthy and instructive decision to that effect in Mobil Cerro Negro, Ltd. v. Bolivarian Republic of Venez., 863 F.3d 96 (2d. Cir. 2017). Its lesson is that in the United States, the only way to enforce (or recognize or confirm) an arbitral award issued against a sovereign entity by the International Centre for Settlement of Investment Disputes ("ICSID") (and probably otherwise as well) is in compliance with the Foreign Sovereign Immunities Act ("FSIA").

(The distinctions between confirmation, recognition, and enforcement of arbitration awards were the subject of the Second Circuit's decision in CBF Indústria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58, 72 (2d Cir. 2017), which this blog discussed in A Primer for Enforcement in the U.S. of Foreign-Issued