Journal of Arbitration Studies (한국중재학회지:중재연구)

The Korean Association of Arbitration Studies (한국중재학회)
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Enforcement of Investor-State Arbitral Awards Against the Assets of State-Owned Enterprises

공기업 재산에 대한 국제투자중재판정의 집행가능성

  • 장석영 (고려대학교 스페인라틴아메리카연구소)
  • Received : 2019.01.31
  • Accepted : 2019.02.26
  • Published : 2019.03.02
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Abstract

When the host states do not comply with the investor-state arbitral awards voluntarily, it is difficult for the successful claimants to seek the enforcement of arbitral awards against the host state because of the doctrine of state immunity. This raises a question whether the investors might be able to seize the assets of the state-owned enterprises, as well as those of the host states. The investors might consider the properties held by state-owned enterprises as an attractive target especially when it has been established that the host state is responsible for the act of its state-owned enterprise. In such case, the investor might argue that the close relationship between the state-owned enterprise and the host state has already been recognized so that the commercial assets of the state-owned enterprise could be subject to attachment. On the other hand, the host state might argue that the state-owned entity exists separately from the state, and thus its assets cannot be equated with those of the host state. Moreover, even if this argument is not accepted and, as a result, the properties of the state-owned entity is equated with those of the host state, the host state might still be able to argue that non-commercial assets of the state-owned enterprise are immune from execution.

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References

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