Enforcement of Arbitral Awards : 'To ICSID or Not to ICSID' is <I>Not</I> the Question

‘To ICSID or not to ICSID' is not the (relevant) question. The two types of enforcement which are often presented as ‘good versus bad', namely ICSID versus New York Convention enforcement, do not affect a claimant's chances of success as much as often portrayed. The grounds for this assertion are threefold. First and most important, there is a legal ground: the ICSID and the New York Convention enforcement system both contain a form of safeguard mechanism against ‘blind' enforcement of all – including severely flawed – awards (albeit at a different stage): the annulment procedure and the national review procedure, respectively. The second ground supporting the assertion that enforcement under the New York Convention is not inferior to enforcement under the ICSID system is a policy ground: several States have expressed doubts about the ICSID system, sometimes even choosing to withdraw from the ICSID Convention whereas New York Convention membership remains constant and includes several economically important States which are not parties to the ICSID Convention. The third and last ground of the assertion put forward in this paper is a practical ground: actual compliance and enforcement rates seem equally high under both systems. What is therefore important for those lawyers who aspire to have nothing but satisfied clients is not to opt for ICSID arbitration no-matter-what, but to be aware of the differences between the enforcement systems and to choose wisely taking into account the advantages and disadvantages linked to each enforcement mechanism