Access to Justice Through Investment Arbitration in Cases of Refusal of Enforcement of Commercial Arbitration Awards: Is There Any Room for Autonomous Claims Based on the New York Convention?

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Demirkol B.

in: Access to Justice in Arbitration, Leonardo V.P. De Oliveira,Sara Hourani, Editor, Kluwer, The Hague , The Hague, pp.93-105, 2020

  • Publication Type: Book Chapter / Chapter Research Book
  • Publication Date: 2020
  • Publisher: Kluwer, The Hague 
  • City: The Hague
  • Page Numbers: pp.93-105
  • Editors: Leonardo V.P. De Oliveira,Sara Hourani, Editor


This paper seeks to explore how investment treaty arbitration can be used as a means of access to justice in cases where the arbitral process or the enforcement of an arbitral award is wrongfully denied by the domestic courts of the host state in an attempt to safeguard the interests of a debtor state entity or a company that is a national of the host state. While such investment claims might require the consideration of a number of jurisdictional and substantive issues, the main focus of this paper is on the possibility of bringing an autonomous claim based on the New York Convention in investment treaty arbitration. This is a rather underinvestigated aspect that deserves further elaboration. The key question is thus whether an investor can directly invoke the violation of the New York Convention without basing its claim on an investment treaty undertaking, such as the fair and equitable treatment or the effective means standards.