Arbitration between investors and states has become an important
form of dispute resolution, largely because of the growing number
of bilateral investment agreements and free trade agreements around
the world. The Convention for the Settlement of Investment Disputes
between States and Nationals of Other States (the Icsid Convention)
establishes one of the most prominent systems for these
arbitrations. It is a common assumption that the Icsid Convention
eliminates defences to the enforcement of awards issued by arbitral
tribunals organized under the auspices of the International Centre
for the Settlement of Investment Disputes (Icsid) in investor-state
arbitrations. As the annulment panel in MINE v Republic of
Guinea stated this view, the Icsid Convention "excluded any
attack on the award in the national courts". But this assumption is
overstated. What little case law exists is not fully consistent
with this view, and the Convention itself affords defences to a
party opposing enforcement of an Icsid award....