Sovereign immunity and compliance with ISDS awards: a look at recent cases from the USA, UK, and Australia

Gáspár-Szilágyi, Szilárd ORCID: https://orcid.org/0000-0001-7204-406X 2026. Sovereign immunity and compliance with ISDS awards: a look at recent cases from the USA, UK, and Australia. Arbitration International , aiag011. 10.1093/arbint/aiag011

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Abstract

When an investor-state arbitral tribunal issues an adverse award against a host State, the postaward phase opens a range of possibilities. The ideal scenario for the investor is for the State to voluntarily comply with the adverse award and pay the damages in full. However, this ideal situation is frequently replaced by an intricate web of annulment proceedings [in the case of International Centre for the Settlement of Investment Disputes (ICSID) awards], domestic set-aside proceedings (for non-ICSID cases), postaward settlement agreements, and domestic enforcement and recognition proceedings. The success of the latter is often hampered by domestic state immunity rules. The article looks at US, UK, and Australian recognition and enforcement cases from 1 January 2020 onwards, since these are preferred jurisdictions for the recognition and enforcement of awards, with well-developed rules on sovereign immunity. There are positive signs that between the three common law jurisdictions, there is some level of convergence, primarily due to cross-border ‘persuasive precedent’, judicial dialogue, and investors trying to enforce the same awards in the three countries. Some issues, such as whether Articles 53–55 ICSID Convention represent exceptions to jurisdictional immunity, have been settled in all three countries in the affirmative. There are also positive developments at the District of Columbia Circuit when it comes to the burden of proof for the application of the arbitration exception to jurisdictional immunity. Nevertheless, investors still face several challenges, including divergent outcomes before the same domestic courts, jurisdictional differences for the application of the waiver and arbitration exceptions, and the ongoing difficulty for investors to defeat execution immunity.

Item Type:	Article
Date Type:	Published Online
Status:	In Press
Schools:	Schools > Cardiff Law & Politics
Publisher:	Kluwer Law International
ISSN:	0957-0411
Date of First Compliant Deposit:	19 October 2026
Last Modified:	19 Oct 2026 10:15
URI:	https://orca.cardiff.ac.uk/id/eprint/190280

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