State Compliance with Investment Awards


 When the ICSID system was being set up, the matter of compliance with investment awards rendered against States was considered "academic". ICSID’s architects believed that as long as States would remain under an international obligation to comply with awards they would generally do so. Writing in the 2000s and early 2010s, commentators observed that States have generally complied with adverse investment awards. In the last two decades, the number of investor-State arbitrations has soared, and more and more damages awards have been rendered against States. This analysis seeks to contribute to a fact-based debate on the future of international investment law by addressing an under-examined but essential aspect of that regime, namely, compliance with investment awards. It assesses empirically the experience with investment arbitration of the thirty-two most sued States, covering approximately 70% of all cases initiated through to the end of 2019. The data examined indicates that the ICSID founders’ prognosis that compliance with investment awards would be a non-issue—framed as it was in such sweeping terms—has not held true. Whereas the majority of States have complied with adverse awards (usually after seeking annulment), the instances of non-compliance or significantly delayed compliance are important. A significant proportion of the cases where States have been ordered to pay damages have required enforcement proceedings. Instances of home State’s intervention--and inevitably re-politicization of the dispute--have resurged. There is thus a gap between the regime’s authority and effectiveness that needs to be addressed. Still, and regardless of its imperfections, it could be said that the modern investment dispute resolution system continues to be revolutionary, in particular when compared to the antecedent regime, which rested almost entirely on the inclination of the home State to espouse its nationals’ claims.


I. INTRODUCTION
The enforceability of arbitral awards has been considered the most attractive feature of international commercial arbitration. 3 The instrument ensuring that such awards are enforceable is the 1958 New York Convention on the Recognition and  Enforcement of Foreign Arbitral Awards. 4 The ability of users to enforce commercial awards against private entities with relative ease underlies the success of international commercial arbitration. 5 The main accomplishment of international investment arbitration is said to be the removal of investor-State disputes from the domain of politics-away from the host State courts that are often perceived by investors as extensions of the executive and away from the foreign policy levers (or 'gunboats') of the home State that is determined to protect its nationals abroad. 6 The rule-based adjudication by neutral international bodies established under international investment agreements would instill confidence in investors and host States alike and promote the cross-border flow of investments. The network of bilateral investment treaties (BITs) and the International Centre for the Settlement of Investment Disputes (ICSID) 7 under the auspices of the World Bank are the key building blocks of the politics-to-rules transition of the resolution of disputes between States and foreign investors. When the ICSID system was being set up, the issue of compliance with-and enforcement of-awards rendered against States in international investment arbitration was considered, but did not lead to extensive debate. It was believed that, as long as States were under an international obligation to comply with awards, they would generally do so. As the main architect of the ICSID system, Aron Broches, reported in 1968: 'Since any State against which an award was granted would have undertaken in advance a solemn international obligation to comply with the award, the question of enforcement against a State was somewhat academic.' 8 In the first issue of the ICSID Review in 1986, Ibrahim Shihata, ICSID's Secretary General at the time, observed that enforcement against States was 'unlikely to arise', given States' obligations under the ICSID Convention and their reputational motivations. 9 The modern international investment protection regime came into operation in the second half of the 20th century, and the first treaty award was rendered in 1990. 10 Commentators writing in the 2000s and early 2010s have observed-on the The debate on (the reimagining of) the international investment regime would benefit from fact-based, empirical analyses. Such studies are increasingly available, addressing a whole host of issues related to investor-State dispute resolution. 18 This article seeks to contribute to a fact-based debate on the future of international investment law by addressing an under-examined but essential aspect of that regime: State compliance with investment awards. Scholars of international law and relations have long debated why a State may choose to act in line with its international legal obligations. 19 As a former judge of the International Court of Justice observed almost four decades ago, 'compliance might be described as the "bottom line" in the accounting of international law'. 20 The study of compliance, both empirical and theoretical, is essential for understanding international law 21 : to investigate compliance is to measure the gap between authority and effectiveness. 22 In the international investment law sphere, States may comply with damages awards for a number of reasons, including: from adherence to an international rule-based system; because they seek to attract investment; out of reputational considerations; due to pressure or fear of retribution from the investor's home State or from other international actors; to avoid penalties in the sovereign bond arena; or to appease domestic political structures. 23 This study does not establish a theory of the causes of State compliance or non-compliance with international investment law. Rather, it seeks to identify pertinent inferences from a unique compliance data set.
In Section II, we recall the international legal framework imposing obligations on States to respect investment treaty awards. Section III examines early instances of noncompliance that are often presented as the 'exception to the rule' of compliance. In Section IV, we present data on how the 32 most sued States have fared, including whether they have complied with adverse awards as at 31 December 2019. The data set examined comprises more than 70 percent of all investment treaty arbitrations. In Sections V and VI, we analyze the results of the survey and set out our conclusions, respectively.

II. STATES' OBLIGATIONS TO COMPLY WITH INVESTMENT AWARDS
The obligation of States to respect an award rendered by an investor-State tribunal is found in both international treaties and arbitration rules. The ICSID Convention contains two provisions regulating the compliance with arbitral awards. Article 53(1) requires the disputing parties to 'abide by and comply with the terms of the award', whereas article 54(1) obliges every ICSID Contracting Party to recognize ICSID awards as binding. 24 Non-ICSID Convention awards are subject to the international obligations set out in the 1958 New York Convention, pursuant to which States are obligated to recognize arbitral awards as binding. 25 States have also assumed express obligations to abide by investor-State awards in their BITs. For instance, some BITs require the State Parties to 'carry out' an award 'without delay' and 'provide for the enforcement' in its territory. 26 Some treaties set out special mechanisms, such as the constitution of a tribunal with the power to order compliance with the award. 27 The 2010 UNCITRAL Arbitration Rules, the 2017 ICC Rules and the 2017 SCC Rules all require the parties to 'carry out' arbitration awards 'without delay'. 28

III. COMMONLY DISCUSSED INSTANCES OF NON-COMPLIANCE
Past assessments have posited that States have tended to comply with adverse investment awards, presenting certain cases as exceptions to the general rule of compliance. 29 These include, principally: 24 ICSID Convention (n 5) arts 53-54. 25 New York Convention (n 4) art III. 26 32 The three States elected not to comply with the awards voluntarily, and the investors were forced to commence enforcement proceedings. Although Congo eventually complied, there is no public information that Liberia and Senegal did. Franz Sedelmayer v Russian Federation. 33 In July 1998, a tribunal ordered Russia to pay approximately US$2.3 million to Mr Sedelmayer. When Russia refused to comply, Mr Sedelmayer commenced enforcement proceedings in Sweden and Germany. Although he was successful in recovering a part of the amount against Russian property in Germany in 2008 and in Sweden in 2014, his efforts to collect lasted years, involved countless proceedings and extraordinary effort and commitment of resources. In the course of the ordeal, Russia commenced and won a US$65 million tax arrears claim against Mr Sedelmayer before the Russian courts 34 (the French courts declined to enforce the tax arrears, finding that the Russian court decision violated public policy 35 33 Mr Franz Sedelmayer v The Russian Federation through the Procurement Department of the President of the Russian Federation, SCC, Arbitration Award (7 July 1998). On the enforcement proceedings, see Damien Charlotin, 'Looking back: German investor, Franz Sedelmayer, was early-adopter of investment treaty arbitration, but had to engage in decade-long assets hunt against Russia' (IA Reporter, 29 August 2017) <www.iareporter.com/articles/looking-back-ger man-investor-franz-sedelmayer-was-early-adopter-of-investment-treaty-arbitration-but-had-to-engage-in-decade-longassets-hunt/> accessed 10 June 2020; Luke Eric Peterson, 'Russia held liable for expropriation of Italian business in unpublicized investment treaty arbitration' (IA Reporter, 18 May 2015) <www.iareporter.com/articles/russia-held-liablefor-expropriation-of-italian-business-in-unpublicized-investment-treaty-arbitration/> accessed 10 June 2020; Andrew Higgins, 'Beating Russia at Its Own Long Game' The New York Times (Munich, 9 February 2015) <www.nytimes.com/ 2015/02/10/world/europe/once-friendly-with-putin-german-goes-to-court-over-seized-assets.html> accessed 10 June 2020. 34 Andrew Higgins, 'Beating Russia at Its Own Long Game' The New York Times (Munich, 9 February 2015) <www. nytimes.com/2015/02/10/world/europe/once-friendly-with-putin-german-goes-to-court-over-seized-assets.html> accessed 10 June 2020. 35  Thailand refused to comply, and the investor initiated enforcement proceedings in the United States and Germany. The proceedings included the successful attachment of an aircraft belonging to the Thai Crown Prince in Germany. The Thai Government issued a bank guarantee in exchange for the release of the aircraft. In October 2016, the award was finally recognized in Germany. We have not identified publicly available information on whether the Thai Government subsequently complied.
Inquiry into whether these examples constituted rare exceptions from a general practice or were instead harbingers of more zealous non-compliance by States would have necessarily been impeded by the limited pool of concluded cases existing at the time. Since 2009, when the last of these awards was rendered, more than 600 new investor-State treaty cases have been instituted and more than 500 awards issued. In this context, a fact-based assessment of States' compliance with adverse awards is pertinent. 38 Petrobart Limited v The Kyrgyz Republic, SCC Case No 126/2003. On the enforcement proceedings, see Ridhi Kabra, 'Looking back: In Petrobart v Kyrgyz Republic dispute, a sales contract does not constitute an investment under the Kyrgyz foreign investment law, but it later finds protection under the Energy Charter Treaty' (IA Reporter, 25 September 2017) <www.iareporter.com/articles/looking-back-in-petrobart-v-kyrgyz-republic-dispute-a-sales-contract-does-not-constitute-an-in vestment-under-the-kyrgyz-foreign-investment-law-but-it-later-finds-protection-under-the-energy-charte/> accessed 10 June 2020; Luke Eric Peterson, 'Lengthy debt collection battle ends, as former soviet state pays arbitral award; unusual form of diplomatic assistance seen' (IA Reporter, 29 September 2011) <www.iareporter.com/articles/lengthy-debt-collection-battleends-as-former-soviet-state-pays-arbitral-award-unusual-form-of-diplomatic-assistance-seen/> accessed 10 June 2020; Luke Eric Peterson, 'BIT claim quietly pursued by Swiss claimant against Uzbekistan in long-running dispute over payment for grain shipment' (IA Reporter, 22 October 2008) <www.iareporter.com/articles/bit-claim-quietly-pursued-by-swiss-claimantagainst-uzbekistan-in-long-running-dispute-over-payment-for-grain-shipment/> accessed 10 June 2020. 39 Bernardus Henricus Funnekotter and others v Republic of Zimbabwe, ICSID Case No ARB/05/6. On the enforcement proceedings, see Lacey Yong, 'Zimbabwe is paying, reveals Dutch farmer' (Global Arbitration Review, 10 October 2017) <https://globalarbitrationreview.com/article/1148709/zimbabwe-is-paying-reveals-dutch-farmer> accessed 10 June 2020; Lacey Yong, 'Hopes raised of enforcement against Zimbabwe' (Global Arbitration Review, 11 June 2015) <https:// globalarbitrationreview.com/article/1034526/hopes-raised-of-enforcement-against-zimbabwe> accessed 10 June 2020. 40

A. Methodology and Caveats
We have gathered data on the outcome of investment arbitrations involving 32 States that have been sued more than 10 times as at 31 December 2019. 41 The data were collected from reputed legal and public databases, as well as corporate and media reports. 42 The aggregate number of arbitrations examined here is 776. This study thus covers more than 70 percent of the investment treaty disputes commenced before 31 December 2019. 43 The possible outcomes of the arbitrations are organized into eight categories: (1) State prevailed: arbitrations in which the State has prevailed on jurisdiction, admissibility or the merits or succeeded in annulling an award in its entirety.
(2) Discontinued: arbitrations discontinued before the issuance of a final award due to any reason other than a settlement, such as failure to pay advances or withdrawal of claims. 44 (3) Settlement pre-award: arbitrations in which the parties reached a settlement before the issuance of an award on damages. (4) Payment/recovery post-award: arbitrations in which, after the issuance of an award on damages, the State made a full or partial payment or the damages were recovered from the State by means of enforcement. This category covers the following types of outcomes: (a) where the State voluntarily agrees to a settlement agreement or pays the award without the need for enforcement proceedings; and (b) where the State agrees to a settlement or satisfies the award after enforcement proceedings were initiated.
(5) No damages: arbitrations in which the State was found liable, but damages were not awarded. 41 Arbitrations against State-owned entities are not included in the survey. 42 The sources include the websites of State agencies, the European Union, arbitral institutions, and databases such as Kluwer, ITALaw, the UNCTAD Investment Dispute Settlement Navigator, Investment Arbitration Reporter, Investor-State Law Guide, Global Arbitration Review, Law 360, etc. In addition, we have consulted press releases from investors and States and media publications in leading international and regional newspapers. 43 There is no publicly available information on the total number of cases arising from investment treaties, investment contracts and domestic investment laws. According to UNCTAD, 1,023 arbitrations have been filed under investment treaties alone, as at 31 December 2019: UNCTAD Investment Dispute Settlement Navigator <https://investmentpo licy.unctad.org/investment-dispute-settlement> accessed 11 June 2020. Of the 776 cases analyzed here, 736 are based on investment treaties. This study also covers arbitrations based on contract and domestic investment laws. 44 It is possible that an arbitration has been discontinued because the parties had reached a settlement. However, if the fact of such settlement is not publicly reported, the arbitration was grouped in this category. For instance, the proceedings in ENGIE International Holdings BV, ENGIE SA and GDF International SAS v Hungary, ICSID Case No ARB/ 16/14, were discontinued in February 2018 due to the parties' agreement, which was reportedly preceded by the sale of Engie's local subsidiary, É gáz-Dégáz. However, given that no settlement agreement has been reported as the cause for the withdrawal of claim, this arbitration was treated as 'Discontinued'. András Lovas, 'Altering the energy market and the rise of the state. Legal safeguard for foreign owners of energy assets?' Budapest Business Journal (Budapest, 12 October 2018) <https://bbj.hu/inside-view/altering-the-energy-market-and-the-rise-of-the-state-legal-safeguard-for-for eign-owners-of-energy-assets_155894> accessed 11 June 2020.
(6) Payment not known: arbitrations in which an award on damages or costs against a State was issued, but no information on payment is publicly available. 45 (7) Arbitration pending: arbitrations that were ongoing as at 31 December 2019. 46 (8) Post-award proceedings pending: arbitrations in which an ICSID annulment proceeding or set-aside proceeding was pending as at 31 We have not provided for a separate category of arbitrations following which enforcement proceedings were commenced to avoid double counting (as a case where enforcement was initiated would fit in the 'Settlement/payment post-award', the 'Payment not known', or the 'Post-award proceedings pending' categories). Arbitrations that have resulted in enforcement proceedings against the respondent State are discussed in Subsection B.
The analysis in this contribution is necessarily subject to limitations: Although the authors have endeavored to use information from reputable sources, they have not been able to verify each source independently. Further, only what has been publicly reported or is known to the authors to be correct is presented below. Further, given the volume of underlying data, it is possible that certain facts or nuances of a State's compliance or conduct following an adverse award have not been fully captured. Relatedly, as one of the main intended contributions of this assessment is to present a breadth of important information and thus enable macro conclusions reflective of the state of affairs in international investment protection, that approach invariably precludes a 'deep dive' in individual cases where other undoubtedly valuable lessons lie. For various reasons, States or investors may have elected not to report publicly the fact of payment or settlement of an award. In the absence of such information, those cases have been categorized as 'Payment not known'. 45 This category also includes arbitrations in which the award on damages was issued shortly before 31 December 2019, and no information on payment was available. 46 In certain cases, public reporting does not indicate the status or outcome of a case. For the purpose of this survey, such cases have been treated as 'Pending'. 47 The number of arbitrations in this category may be larger if annulment proceedings are not publicly reported.
Arbitrations in which the award on damages was issued shortly before the publication of this article, and no information on payment was yet available, have been categorized as 'Payment not known'. If a State is reported to have concluded a settlement agreement, that case has been placed in either the 'Settlement pre-award' or 'Payment/recovery postaward' categories, as the case may be. These include instances in which the settlement agreement was only partially satisfied. At the same time, States do not always honor a settlement agreement. Where the fact of non-compliance with the settlement agreement is public, the case has been placed in the 'Payment not known' category.
Lastly, data and events following 31 December 2019 are outside the scope of this analysis.

B. Presentation of Data
This subsection provides an overview of the compliance record with investment treaty awards of the 32 most sued States. The States have been divided into five groups, on the basis of the number of cases raised against them: (i) States involved in 50 or more investment arbitrations

a) Argentina
Argentina sits at the top of the list of the most frequently sued States. To a large extent, the investment arbitrations initiated against Argentina were related to the Argentinean sovereign debt and economic crisis of the early 2000s, and the measures that Argentina took to address that crisis. Argentina initially complied with adverse awards. As its payment obligations mounted, it began to resist compliance. Ultimately, in the face of diplomatic pressure, Argentina agreed to settle several of the awards many years after they were issued.  Nineteen damages awards have been issued against Argentina. Of these, public information indicates that Argentina has satisfied 14. 51 It is seeking the annulment of one award before an ICSID Ad Hoc Committee. 52 We have not identified information on payment of the four remaining awards. 53 Argentina declined to pay several adverse awards for years. It first sought to annul them, largely without success. 54 Investors who prevailed in arbitration were required to pursue enforcement proceedings 55 or seek diplomatic support. 56 As will be discussed next, settlements took between five and 13 years from the date of issuance of the award and were usually in the form of Argentinian sovereign bonds.
Between 2000 and 2008, ICSID tribunals issued awards in five arbitrations brought by US investors: CMS Gas, Azurix Corp, Vivendi Universal, Continental Casualty and National Grid. The rights in the CMS Gas, Vivendi Universal, Continental Casualty and National Grid awards were subsequently acquired by US creditors. 57 Argentina refused to comply with the awards and maintained that the investors could enforce the awards only through proceedings in Argentina's courts. 58 Following lobbying efforts, the US Government espoused the creditors' claims. The United States withdrew trade benefits extended to Argentina under the US Generalized System of Preferences (GSP) regime and voted against the World Bank and Inter-American Development Bank extending loans to Argentina. In March 2012, President Obama declared that 'it is appropriate to suspend Argentina's designation as a GSP beneficiary developing country because it has not acted in good faith in enforcing arbitral awards in favor of United States citizens or a corporation, partnership, or association that is 50 percent or more beneficially owned by United States citizens [. . .]'. 59 Not long after these measures, Argentina agreed to settle the five awards in October 2013, by issuing sovereign bonds at a discount. 60 The settlement eased the bilateral relationship between Argentina and the United States and the international business community. Immediately after the settlement, the World Bank agreed to provide loans worth US$3 billion to finance Argentina's infrastructure projects. 61 Likewise, in May 2014, the Paris Club of Creditors (of which the United States is a prominent member) and Argentina arranged to clear Argentina's debt worth US$9.7 billion. 62 Argentina subsequently also settled the awards in BG Group, El Paso, Total and Suez by issuing sovereign bonds at a discounted value. Although the awards were rendered in 2007, 2011, 2013 and 2015 respectively, the settlements were reached only between 2016 and 2019. 63 Following its re-entry into the international capital market in 2016, Argentina also paid 150 percent of the value of the defaulted bonds that were the subject-matter of the main claim in the Abaclat arbitration. 64 Referring to inter alia the 'resolution of certain arbitral disputes with U.S. companies', the United States reinstated Argentina into its GSP regime on 1 January 2018. 65 In recent years, Argentina has been making efforts to resurrect its economy by accessing the global financial markets, and it is keen to attract foreign investments in its territory. Projecting an investor-friendly image was cited by the Argentine Government as one of the important factors for agreeing to settle the disputes with American, British and French energy companies, such as Total, BG Group and El Paso. 66 b) Venezuela Venezuela has had 58 arbitrations initiated against it under its BITs, investment contracts and domestic investment law, making it the second most frequent respondent State. Several of these arbitrations arise from measures taken by the Chavez-led Government in 2007 to nationalize oil projects. The wave of nationalizations also covered foreign investment in the gold and agriculture industries.
Venezuela has also terminated its participation in certain investment protection treaties. For example, in 2008, after two Dutch companies (Venezuela Holdings and ConocoPhillips Petrozuata BV) initiated arbitrations against it, Venezuela terminated its BIT with the Netherlands. 67 In 2012, the Government denounced the ICSID Convention, stating that the initial decision to accede to ICSID was taken by 'a weak provisional government [. Post-award proceedings pending 66 Ministry of Finance Press Release, 'Argentina enters into an agreement with TOTAL Oil Company within the context of the ICSID' (18 July 2017) <www.minhacienda.gob.ar/en/argentina-enters-into-an-agreement-with-total-oil-com pany-within-the-context-of-the-icsid/> accessed 18 June 2020 ('This agreement closes TOTAL's claim and contributes to the restoration of direct investment, in particular from companies coming from France in the energy sector. TOTAL has recently announced investment projects in Argentina (in Neuquen and Tierra del Fuego) for amounts higher than the ones obtained as a result of this agreement'); Ministerio de Hacienda y Finanzas Públicas [Ministry of Treasury and Public Finance] Press Release, 'Acuerdos con BG Group y El Paso Energy en el marco del CIADI [Agreements with BG Group and El Paso Energy within the framework of ICSID]' (13 May 2016) <www.italaw.com/sites/default/files/casedocuments/italaw7319.pdf> accessed 18 June 2020 ('Ambos acuerdos le ponen fin al reclamo de las partes y allanan el camino para restablecer inversiones directas particularmente de empresas provenientes de los países asociados con las mismas (Gran Bretaña y Estados Unidos) y en el sector energético' [Both agreements put an end to the parties' claim and pave the way for reestablishing direct investments, particularly from companies from the countries associated with them (Great Britain and the United States) and in the energy sector]). 67 Luke Eric Peterson, 'Venezuela surprises the Netherlands with termination notice for BIT; treaty has been used by many investors to "route" investments into Venezuela' (IA Reporter, 16 May 2008) <www.iareporter.com/articles/vene zuela-surprises-the-netherlands-with-termination-notice-for-bit-treaty-has-been-used-by-many-investors-to-routeinvestments-into-venezuela/> accessed 18 June 2020. 68 'Hugo Chávez se aleja de centro de arbitraje [Hugo Chávez leaves arbitration center]' El Comercio (Quito, 26 January 2012) <www.elcomercio.com/app_public.php/actualidad/negocios/hugo-chavez-se-aleja-de.html> accessed 19 June 2020 (original Spanish: 'se adhirió a este convenio en 1993, por decisió n de un Gobierno provisional débil y desprovisto de legitimidad popular, presionado por sectores econó micos transnacionales que participaban del desmantelamiento de la soberanía nacional venezolana'). See also ICSID Press Release, 'Venezuela Submits a Notice Under Article 71 of the ICSID Convention' <https://icsid.worldbank.org/en/Pages/News.aspx?CID¼47> accessed 19 June 2020.
Venezuela has settled six arbitrations prior to an award on damages, through cash payments, issuing other financial instruments and/or providing debt relief. 69 For instance, three years after the commencement of the proceedings in CEMEX, Venezuela agreed to pay the investors US$240 million in cash and US$360 million in negotiable securities issued by Petró leos de Venezuela, SA (PDVSA), the State's oil company. It also agreed to cancel US$154 million in debt owed by the investors' local subsidiaries. 70 After Holcim initiated an arbitration, the parties settled and Venezuela has reportedly also paid US$250 million out of the agreed US$650 million in 2010 (with subsequent payments due by 2014). 71 On the other hand, even though Venezuela and the Williams Companies had agreed to settle their first arbitration for US$420 million prior to an award, the investor once again initiated an arbitration in 2019 after Venezuela had allegedly failed to make good on the settlement. 72 Twenty damages awards have been issued against Venezuela, in relation to five of which annulment proceedings are pending. 73 Until 2013, Venezuela had paid the two adverse awards without investors having to seek enforcement (in FEDAX and Aucoven). 74 It has been reported that on numerous occasions Aucoven sought the assistance of its home State (Mexico) to obtain compensation. 75 The policy seems to have shifted after 2013, perhaps coinciding with President Nicolás Maduro coming to power after the death of President Hugo Chávez. Since 2013, the only award that is known to have been paid is that in Gold Reserve (discussed below). We have not identified information that the remaining 12 damages awards have been paid. In fact, enforcement actions have been commenced against cemex.com.eg/web/guest/media/press-releases/-/asset_publisher/SdVoFWmaXoDU/content/about-us-press-releasecemex-and-venezuela-sign-agreement-on-compensation-for-nationalization-of- Venezuela in many jurisdictions in relation to more than 10 awards. 76 Many of those enforcement proceedings are pending as at 31 December 2019.
Three cases in which Venezuela was ordered to pay a combined total of US$3.2 billion are worthy of specific note.
Gold Reserve v Venezuela. Gold Reserve won more than US$746 million in damages in September 2014. 77 Gold Reserve started enforcement proceedings as early as October 2014 in Luxembourg and soon thereafter in France, the UK and the United States. In parallel, Venezuela sought annulment of the award in France and resisted enforcement. 78 In January 2016, the US courts granted leave to Gold Reserve to enforce the award. 79 Several months later, the parties executed a settlement agreement pursuant to which Venezuela would pay to Gold Reserve US$1 billion, 80 comprising the full awarded amount and a fee to acquire the investor's mining data. Gold Reserve and Venezuela would also jointly develop gold, copper and silver mining projects in Venezuela. It is possible that the settlement with Gold Reserve allowed Venezuela to obtain US$2 billion in loans. In particular, Venezuela reportedly used the mining rights obtained in the settlement as collateral for the financing. 81 Venezuela initially did not adhere to the agreed payment timeline. 82 However, following the dismissal of Venezuela's annulment application by the Paris Court d'Appel in February 2017, 83 it has reportedly been complying with the terms of the settlement agreement. 84 Rusoro v Venezuela. Rusoro secured an award of US$1.2 billion in August 2016. 85 It commenced enforcement proceedings in the United States, Canada and the UK against inter alia the commercial assets of PDVSA. In 2018, the US and Canadian courts ruled in favor of Rusoro at the stage of recognition, paving the way for enforcement. 86 Later that year, Rusoro announced that the parties had agreed to settle, with Venezuela agreeing to pay US$1.28 billion, acquire Rusoro's mining data, and form a joint venture with Rusoro to explore and develop gold mining projects. 87 In parallel, Venezuela instituted set-aside proceedings in France. In January 2019, the Paris Cour d'Appel annulled the award. 88 Rusoro has subsequently filed a petition to quash with the French Cour de Cassation and announced its intention to pursue necessary remedies to obtain appropriate compensation for its expropriated assets. 89 Crystallex v Venezuela. The post-award proceedings in Crystallex have involved many twists and turns. Crystallex obtained an award of US$1.38 billion in April 2016, which was recognized by both the Canadian 90 and the US courts. 91 In November 2017, Venezuela agreed to a settlement worth more than US$1 billion. 92 However, in the very next month it was reported that Venezuela had failed to make the scheduled payment. 93 Crystallex resumed its enforcement actions in the United States, seeking to attach PDVSA assets. The US District Court of Delaware granted Crystallex's request in August 2018. In a rare holding to the effect that the 'veil' of a company should be pierced, the court examined in great detail the extent to which Venezuela controlled the day-to-day activities of PDVSA, and it found that the company was Venezuela's alter ego. 94 Once again, in November 2018, a settlement agreement followed. Venezuela agreed to satisfy the award by 2021 and, in return, Crystallex would agree to suspend the enforcement proceedings in the United States until early January 2019, when a partial payment fell due. 95 Venezuela thereafter made an initial payment of US$500 million in cash and liquid securities in November 2018. 96 However, less than a month later, Crystallex reported that Venezuela had breached the settlement terms for the second time. 97 Venezuela resumed its appeal against the Delaware District Court's decision before the US Court of Appeals for the Third Circuit. After a de novo review of the question whether PDVSA could be treated as Venezuela's alter ego, the Third Circuit affirmed the District Court's decision, holding that Venezuela and PDVSA satisfied the 'extensive-control requirement' needed to show that the foreign sovereign and its instrumentalities were not separate legal entities. 98 Venezuela and PDVSA have indicated their intention to appeal to the US Supreme Court. 99 The decisions of the District and Third Circuit Courts are momentous for opening up avenues for enforcement actions against Venezuela, whether by Crystallex or other investors. The Delaware District Court has stayed enforcement actions in Crystallex v Venezeula, OI European Group BV v Venezuela and ConocoPhillips v Venezuela. 100 In addition to these, as indicated above, Venezuela is defending a number of other enforcement actions.
Rusoro and Crystallex also allege that Venezuela is shielding its assets from enforcement by transferring them out of the territories in which enforcement actions are initiated. They filed petitions before the US courts accusing PDVSA and its entities of fraudulently repatriating Venezuela's assets in the United States and the Dutch Caribbean back to Venezuela. 101 The Third Circuit denied Crystallex's petition in 2018. It held that Crystallex had not presented evidence that PDV Holding, a subsidiary of PDVSA, was an alter ego of Venezuela, but it did observe that the 'intent behind this series of transactions was to hinder creditors'. 102 In December 2019, the National Assembly of Venezuela passed a Resolution declaring the 2018 settlement agreements with Crystallex and Rusoro respectively as null and void. 103 Therefore, in addition to many awards rendered against Venezuela not having been paid, there are important instances where the country has not complied with settlement agreements, or has even rescinded them. Long enforcement procedures have been necessary and may be needed in the years to come to obtain payment of awards against Venezuela. c) Spain In 2012, Spain vehemently lobbied the European Union for support when Argentina announced its plans to nationalize an oil company in which the Spanish company Repsol owned a majority stake. 106 In recent years, the tides have turned: Spain has been a respondent in 52 arbitrations, of which 47 concern regulatory amendments that Spain enacted in relation to the renewable energy industry. Investors have argued that Spain attracted investments in its photovoltaic industry in the mid-2000s by guaranteeing an inflation-linked feed-in tariff. Investors argue that, after having benefited from significant capital influx, Spain abruptly modified the regulatory framework, at the expense of investors. 107 Spain has argued inter alia that any intra-EU arbitration agreement is incompatible with EU law and that investors could not claim that they had a legitimate expectation that the incentive regime would not change, since Spain had not made a specific promise to that effect. 108 Final awards have been rendered in 15 of these arbitrations. The tribunals found in favor of Spain in three arbitrations, 109 whereas the investors prevailed in 12. 110 As at December 2019, Spain has been ordered to pay approximately US$880 million in damages in relation to its photovoltaic measures, with the largest award-290 million euros-going to NextEra. 111 Following the CJEU's Achmea decision, in January 2019, Spain and other EU Member States issued a Declaration inter alia that tribunals under intra-EU BITs lack jurisdiction, and they vowed to seek the setting aside of any intra-EU damages awards. 112 Before 2012, Spain voluntarily paid the only damages award rendered against itin Maffezini v Spain, in the amount of 180,000 euros. 113 Following the large wave of arbitrations relating to the renewable sector, Spain has declined to comply with adverse awards. It has sought the annulment of the Eiser, Masdar, Antin Infrastructure, NextEra, InfraRed Environmental and Cube Infrastructure awards before ICSID and the Novenergia and Foresight awards before Swedish courts. 114 In the Novenergia setting-aside proceedings before the Svea Court of Appeal in Stockholm, Spain requested a preliminary reference to the ECJ on the compatibility of the intra-EU application of the Energy Charter Treaty (ECT) with EU law. 115 The Svea Court of Appeal rejected Spain's request, stating essentially that it did not find any circumstances warranting such a request. 116 The setting-aside proceedings are pending.
For their part, the investors have initiated enforcement proceedings against Spain, mainly in the United States. 117 Before the enforcement courts, Spain argued that the tribunals lacked jurisdiction and that payment of the awards would amount to unlawful State aid under EU law. 118 In one proceeding, the investor's position on the interaction between EU law and the tribunal's jurisdiction is supported by MOL Hungarian Oil and Gas, a Hungarian State-owned enterprise. 119 In parallel, the European Commission has also sought to intervene as amicus curiae to argue that any agreement to arbitrate intra-EU investment disputes under the ECT is invalid. 120 114 Laura Roddy and Sebastian Perry, 'Spain asks for ECJ to rule on ECT' (Global Arbitration Review, 31 May 2018) <https://globalarbitrationreview.com/article/1170107/spain-asks-for-ecj-to-rule-on-ect> accessed 18 June 2020; 'Spanish solar cases at ICSID: one award is challenged, and ad-hoc committee is formed to hear another previouslyfiled annulment application' (IA Reporter, 31 May 2019) <www.iareporter.com/articles/spanish-solar-cases-at-icsidone-award-is-challenged-and-committee-is-formed-to-hear-another-previously-filed-annulment-application/> accessed 18 June 2020; Jack Ballantyne and Tom Jones, 'Spain seeks annulment of solar award as arbitrator challenge rejected' (Global Arbitration Review, 20 November 2019) <https://globalarbitrationreview.com/article/1211122/spain-seeks-annul ment-of-solar-award-as-arbitrator-challenge-rejected> accessed 18 June 2020; Tom Jones, 'Spain faces more payouts over solar reforms' (Global Arbitration Review, 3 June 2019) <https://globalarbitrationreview.com/article/1193634/spainfaces-more-payouts-over-solar-reforms> accessed 18 June 2020; Lisa Bohmer, 'Spain files for annulment of unfavorable Infrared Solar award' (IA Reporter, 6 December 2019) <www.iareporter.com/articles/spain-files-for-annulment-of-un favorable-infrared-award/> accessed 18 June 2020; Lisa Bohmer, 'An ICSID Ad Hoc committee is formed to hear Spain's bid to annul NextEra Energy award' (IA Reporter, 17 December 2019) <www.iareporter.com/articles/as-rreefaward-is-rendered-an-icsid-ad-hoc-committee-is-formed-to-hear-spains-bid-to-annul-nextera-energy-award/> accessed 18 June 2020; Lisa Bohmer, 'Antin v. Spain: Three are named to ad-hoc committee that will decide fate of ICSID solar award' (IA Reporter, 20 August 2019) <www.iareporter.com/articles/antin-v-spain-three-are-named-to-adhoc-committee-that-will-decide-fate-of-icsid-solar-award/> accessed 18 June 2020. 115  More than 90 percent of the Spanish renewable energy cases were initiated by investors from EU Member States. Given the positions taken by Spain so far, it can be expected that Spain will not voluntarily comply with any of the intra-EU damages awards.
At the same time, the burgeoning number of arbitrations likely prompted the Spanish Council of Ministers to attempt to resolve some of its disputes by adopting a new incentive scheme in the form of Royal Decree-Law 17/2019. 121 The Royal Decree-Law stabilizes the rate of return for investments for 12 years from 1 January 2020, offering investors a higher rate of return than the rate applicable at the time of its adoption. We understand that the rate of return under this incentive scheme is lower than the rates to which the investors were entitled prior to the legislative changes that led to the flurry of arbitrations against Spain. To avail themselves of the offer, investors are required to withdraw their claims against Spain, including any enforcement proceedings, by a specified deadline. Egypt: Egypt has been involved in 43 arbitrations against investors. Fourteen of those were settled before an award on damages was issued. 122 For instance, the three Ossama al Sharif arbitrations were settled by Egypt soon after notices of arbitration were issued, with Egypt agreeing to renew the investor's concessions. 123 Until 2018, Egypt voluntarily complied with four of the five adverse awards against it. 124 Since the Arab Spring in 2011, there has been a surge in commercial and treaty arbitrations against the State and Egyptian State-owned enterprises. The majority of these arbitrations resulted from the political, economic and security turmoil caused by the Arab Spring, including regime changes, transitional governance and attacks on pipelines delivering gas to other States, such as Israel. For instance, in an ICSID arbitration initiated by Unió n Fenosa Gas (UFG), arising from the shutdown of a power plant in Egypt, UFG was awarded US$2 billion in damages. 125 The case is now before an ICSID Ad Hoc Committee. Settlement discussions and enforcement proceedings in the United States are taking place in parallel. 126 Czech Republic: The Czech Republic has been a respondent in 40 investment arbitrations. 127 Sixty percent of these were discontinued, resulted in the Czech Republic prevailing, or did not involve damages (despite a finding on liability). The Czech Republic has reportedly had to pursue numerous legal actions, with little success, to recover costs awarded to it. 128 It has entered into three settlements prior to the issuance of an award on damages, 129  Mexico has had 33 arbitrations initiated against it, a majority of which arose under the North American Free Trade Agreement (NAFTA). Of these, nine awarded damages to the investors. 133 Although in some cases it initially pursued annulment, Mexico has voluntarily complied with the adverse awards, and often within a year of the final decision. 134 We understand that enforcement proceedings were commenced only in the Cargill case. 135 Mexico's unwillingness to comply with the Cargill award appears to be due to its significant disagreement with the tribunal's reasoning. 136 The Cargill arbitration was one of three-in addition to those in Archer Daniels and Corn Products-related to Mexico's introduction of a tax on High Fructose Corn Syrup (HFCS). Mexico lost all three cases. In Cargill, Mexico appears to have been particularly dissatisfied with the tribunal's decision to extend subject-matter jurisdiction 137 beyond Cargill's Mexican operations, to include HFCS produced in the United States and shipped to and sold in Mexico. 138 After Mexico failed to annul the award in Canada, the parties ultimately arrived at a settlement, four years after the award was rendered, and discontinued the enforcement proceedings. 139 b) Poland Poland has received seven damages awards. 140 Two of these awards-in Saar Papier (I) and Cargill-were paid only after the investors started enforcement proceedings in Germany and the United States respectively. Payment of the Saar Papier (I) award took approximately four years, whereas the Cargill award was complied with within a year. 141 A Polish official has confirmed in 2018 that the award in Flemingo Duty Free was settled (and that various further agreements had been entered into between Poland and the investor). 142 Poland is currently seeking to annul the PL Holding award before the Swedish courts, on the ground of the invalidity of the arbitration agreement in the Luxembourg-Poland BITarising from EU law. The Svea Court of Appeal recognized the award, finding that Poland's related objection based on incompatibility with EU law was raised out of time: the objection had been raised in the setting-aside proceedings, but not in the arbitration. 143 In December 2019, the Swedish Supreme Court referred to the CJEU the question whether, in light of the Achmea judgment, Poland could have implicitly consented to arbitration by failing to raise the intra-EU jurisdictional objection and participating in the arbitral proceedings. 144 Poland is also reportedly seeking to set aside the award in Manchester Services Corporation. 145 We have not been able to retrieve information on whether Poland has paid the damages awarded in Horthel Systems and others, and Les Laboratoires Servier and others. Canada has been involved in 30 arbitrations against it, mostly under the NAFTA. Five damages awards have been issued against Canada. 146 The awards in Windstream Energy and Mobil Investments Inc. and Murphy Oil Corporation were paid in full, approximately within a year of their issuance. 147 Canada is reported to have also complied with the Pope & Talbot Inc and SD Myers awards, although the timing of payment is unclear. 148 As regards the recent Clayton and Bilcon award, the investors have applied to the courts in Ontario (the seat of the arbitration) to set aside the award on damages. 149 d) Ecuador Ecuador has faced 30 arbitrations arising out of BITs and investment contracts. It has settled seven arbitrations before an award on damages. In Noble Energy and Machalapower Cia Ltd v Ecuador and IBM World Trade Corp v Ecuador, after the tribunals dismissed Ecuador's preliminary objections, the parties arrived at a settlement. 150 Ecuador has also paid or settled eight out of the nine damages awards against it, including a payment of US$980 million towards the satisfaction of the Occidental (II) award, one of the largest voluntary payments made by a State. 151 As regards the award in Murphy (II), Ecuador publicly committed to pay, though there has been no report of actual compliance. 152 Ecuador has applied to annul the Perenco award, which the investor is currently seeking to enforce in the United States. 153 In most cases, Ecuador has agreed to a settlement several years following the award and after having sought annulment of the award. Investors initiated recognition and enforcement proceedings in the United States in relation to at least two awards. 154 The Chevron (I) award was paid five years after its issuance and following an unsuccessful setting-aside attempt. 155 In parallel, Chevron obtained recognition of the award in the United States. 156 A month after the US Supreme Court dismissed Ecuador's appeal, 157 Ecuador paid US$112 million to Chevron. 158 The second and larger Chevron dispute concerning the Lago Agrio is pending as at 31 December 2019. 159 It has been reported that Chevron lobbied the US Government to withdraw trade benefits provided to Ecuador while the arbitration proceedings were ongoing. 160 In the past, Ecuador expressed skepticism towards the ISDS regime, withdrew from the ICSID Convention in 2009 and subsequently denounced its BITs. 161  As of 31 December 2019, Ukraine has been involved in 27 investment arbitrations. It has prevailed in seven and settled four prior to a decision on damages. In Laskaridis v Ukraine, for instance, the State and the investor settled soon after the tribunal dismissed the investor's jurisdictional objections. 163 The terms of that settlement are not public. Another pre-award settlement was reached in Gazprom v Ukraine. That case concerned an antitrust fine of more than US$7 billion issued by Ukraine in relation to alleged abuse by Gazprom of its monopoly of the Ukrainian gas transit market. 164 Subsequently, as part of efforts to collect on the fine, Ukraine's Ministry of Justice confiscated all of Gazprom's assets on the territory of Ukraine, including its shares in a gas transit venture owned jointly with Naftogaz and others. 165 Reportedly, under the settlement, Ukraine will not pay any compensation for the seized and confiscated assets, but the Antimonopoly Committee of Ukraine will waive the levied fines on Gazprom. 166 At the same time, Naftogaz and Gazprom reached a deal that will secure gas transit from Russia to Western Europe through the territory of Ukraine. The deal also mandates a payment by Naftogaz of US$2.9 billion related to an award won by Naftogaz related to previous dealings between the two companies. 167 Ukraine has settled or complied with the majority of the seven adverse awards against it. The four awards in Alpha Projektholding, Inmaris Perestroika Sailing Maritime Services, Joseph C Lemire and Remington Worldwide Limited have already been satisfied. 168 It did not oppose the investors' applications for recognition and enforcement before the domestic courts in two cases, namely in Alpha Projektholding and Inmaris Perestroika Sailing Maritime Services. 169 By contrast, in Remington Worldwide Limited, Ukraine challenged the enforcement decisions before both the Kyiv District Court and the Kyiv Court of Appeal. 170 In Joseph C Lemire, Ukraine transferred the damages amount to an escrow account as security, while ICSID annulment proceedings were pending. 171 The Ad Hoc Committee upheld the award. 172 Not having found evidence to the contrary, we assume that the investor received satisfaction by drawing on the amount in escrow.

c) Canada
Information regarding compliance with three other awards-City-State and others, JKX Oil & Gas and Tatneft-is not clear. 173 Reportedly, in two of these cases, the investors are closely connected to Ukrainian businessmen, while Tatneft is a Russian oil company. 174 Tatneft obtained favorable recognition decisions from courts in the US, the UK and Russia and is believed to have initiated enforcement actions. 175 In City-State NV, the Kyiv Court of Appeal granted enforcement of the award in September 2019. 176 Cassation proceedings were pending before the Ukrainian Supreme Court as at 31 December 2019. In November 2019, the Ukrainian Supreme Court ordered Ukraine to pay the awarded amount in JKX Oil & Gas, but there is no information on whether Ukraine has actually paid the award. 177 We note that four out of the seven pending arbitrations against Ukraine are brought under the Russia-Ukraine BIT 178 or indirectly by Russian nationals. 179 Given the significant political tension that has existed between the two States since 2014, it is possible that Ukraine will not comply with any adverse awards in favor of Russian nationals. b) Russian Federation Russia has been involved in 26 arbitrations under the ECT and its BITs. Out of these, it has prevailed in five, whereas one claim was withdrawn before an award. A pre-award settlement in relation to the Nomura International Ltd (UK Bank) has been reported, but the details are not clear. 180 Thus far, Russia has generally not complied with adverse awards. It has usually sought annulment and resisted enforcement. 181 As discussed above, it took two decades, countless proceedings and important resources for Mr Sedelmayer to receive partial satisfaction. Similarly, it has been reported that the investors in Valle Esina sought the support of the Italian Government to secure payment of a 10 million euro award. 182 The same media report indicates that setting-aside or enforcement proceedings had not been identified, implying that the parties had possibly settled.
Russia vigorously opposed enforcement of the Yukos awards. This included diplomatic pressure and lobbying. For example, in the course of the recognition proceedings, Russia issued diplomatic notes that any enforcement over Russian property in the matter would result in reciprocal seizure of property in Russia. 183 While recognition proceedings were ongoing in France and Belgium, both countries amended their legislation to require court authorization prior to the attachment of foreign State assets. 184 Ten arbitrations have been brought by Ukrainian investors against Russia in relation to the annexation of Crimea in 2014. Three of these have not reached a decision on liability. 185 Russia has been found liable for treaty breaches in three arbitrations, -Naftogaz, PJSC CB PrivatBank and Aeroport Belbek LLC-in all of which a ruling on damages is awaited. 186 In Oschadbank, Everest Estate, Stabil and Ukrnafta, the tribunals have issued awards on damages against Russia. 187 Russia challenged the Ukrnafta and Stabil awards in Switzerland and the Tribunal fédéral rejected the applications. 188 While setting-aside proceeding are pending in the Netherlands in Everest Estate, in September 2018, the Kyiv Court of Appeal granted enforcement of the US$159 million award as well as the attachment of shares held by three Russian State-owned banks (Vnesheconombank, VTB Bank and Sberbank) in Ukrainian banks. 189 Vnesheconombank has initiated an arbitration against Ukraine for expropriation of its assets as a result of the decision. 190 The subsequent enforcement proceedings in Everest Estate before the Supreme Court of Ukraine brought about further notable developments. Although absolute sovereign immunity generally applies in Ukraine, in January 2019 the Supreme Court ruled that article 9 of the Russia-Ukraine BIT (which, inter alia, provides that 'Each Contracting Party shall undertake to execute such an award in conformity with its respective legislation') constituted a waiver of immunity. Accordingly, the court confirmed the attachments, albeit restricting them to the extent to which the Russian Federation actually owns shares in the three Russian banks. 191 The Russian State-owned banks have denounced these proceedings as political. 192 c) Kazakhstan In Rumeli Telekom, Kazakhstan sought the annulment of a US$125 million ICSID award. Upon the Ad Hoc Committee's order, Kazakhstan provided a written assurance that the award would be fully satisfied if upheld. Nevertheless, even though it failed to prevail in the annulment proceedings, Kazakhstan only complied with the award following several years of enforcement litigation. 194 Similarly, in AIG, Kazakhstan paid the award five years after it was issued. During that time, AIG unsuccessfully attempted to seize assets of Kazakhstan's central bank in the UK. 195 The High Court of England found that the targeted cash accounts of the National Bank of Kazakhstan did not constitute debt owed to Kazakhstan and that the accounts are in any event immune from enforcement under the UK State Immunity Act. 196 Reportedly, Kazakhstan paid the amounts under the award only after the US Government applied pressure. 197 The Stati enforcement dispute also merits mention. The tribunal awarded the Stati family nearly US$500 million in December 2013. 198 Relying on documents obtained in Section 1782 proceedings in the United States, 199 Kazakhstan has insisted that the Statis fraudulently inflated the value of their investment and accordingly the tribunal's damages calculations. The reaction to the courts to these allegations has been mixed. Some have refused to hear the fraud argument. 200 Notably, while rejecting Kazakhstan's annulment application, the Swedish courts also rejected Kazakhstan's allegations of fraud and confirmed the award. 201 The US courts have not entertained Kazakhstan's fraud claims either. 202 On the other hand, the Amsterdam Court of Appeal held that Kazakhstan should be allowed to present evidence on fraud. 203 Likewise, an English court found that there was a prima facie case that the award had been obtained by fraud, and it decided to examine the allegations at a trial. 204 However, the Statis subsequently withdrew the enforcement proceedings in England. 205 As of 2014, the Stati family has initiated enforcement proceedings in the UK, Belgium, Italy, Luxembourg, the Netherlands, Sweden and the United States. In 2017, in the Netherlands and Belgium, the Statis succeeded in obtaining garnishment orders freezing assets worth US$22.6 billion and held on behalf of the National Bank of Kazakhstan (NBK) as well as attachment of shares worth US$5.2 billion held by Kazakh sovereign wealth fund Samruk-Kazyna in a Dutch company. 206 The attachment order in relation to the NBK assets was subsequently reduced by the Belgian courts to the amount of the award, ie, US$530 million. Similarly, in Luxembourg, the Statis have obtained garnishment orders against other assets, estimated to be worth US$450 million. 207 In January 2018, the Swedish courts granted the attachment shares worth US$100 million in various companies. 208  Kyrgyzstan has been a respondent in 23 arbitrations. Twelve did not reach the stage of compliance. In four instances, the awards were set aside by French or Russian courts. The award in Valeri Belokon v Kyrgyz Republic was set aside by the Paris Cour d'Appel on public policy grounds, finding that the investor had engaged in money laundering. 210 The other three awards related to disputes under the CIS Investor Rights Convention-in Lee John Beck, OKKV and others, and Stans Energy Corp and Kutisay Mining LLC (I)-were subsequently set aside by the Russian courts for lack of consent to arbitrate investor-State disputes under that treaty. 211 Five proceedings are pending as at 31 December 2019.
Of the remaining four adverse awards, there is no information about payment in three. The post-award developments in Petrobart were discussed above. Reportedly, before payment was ultimately made in 2011, bilateral diplomatic discussions were held between Sweden and Kyrgyzstan on four occasions. 212  Peru: Of the 26 arbitrations against it, Peru has received three adverse awards. The Bear Creek Mining award was reported to have been paid two years after the award. 214 There has been limited reporting about the payment of two other awards -Tza Yap Shu and Duke Energy. 215 It is believed that the awards were likely satisfied since, at the annulment stage, Peru submitted a written assurance to the ICSID annulment committees that it would honor the awards if they were not annulled. 216 The ICSID annulment committees subsequently upheld the awards in 2011 and 2015 respectively. No enforcement proceedings have been reported to have taken place after the annulment proceedings were concluded.
India: Twenty-five investment arbitrations have been initiated against India. It has settled nine, all arising from disputes relating to the Dabhol power plant. This involved a one-time payment to the investors in 2005. 217 India has complied with the only adverse award issued against it-in White Industries v India-without enforcement proceedings having been initiated. 218 The amount at stake was AUS$8 million. More than half of the arbitrations against India are pending.
Libya: There is a paucity of payment information in relation to awards rendered against Libya. Of 25 arbitrations, Libya has prevailed in four and 13 are currently ongoing. Tribunals have rendered damages awards against Libya in eight arbitrations; there is no public information whether any of these has been satisfied. 219 (v) States involved in 10-19 investment arbitrations a) Bolivia Bolivia's skepticism towards ISDS over more than a decade is well documented. It began denouncing its 21 BITs in 2006 and announced that disputes between foreign investors and Bolivia ought to be resolved in Bolivian courts or through arbitration in Bolivia. 220 In 2007, it also became the first country to denounce the ICSID Convention. 221 Despite this, Bolivia has settled around 75 percent of the 16 arbitrations against it either before or soon after an award: nine prior to and three after an award on damages.
In two of the three arbitrations in which damages were awarded against it-in Rurelec and Quiborax 222 -Bolivia settled without any enforcement actions being initiated against it. The Rurelec award was reportedly settled approximately three months after its issuance. 223 Bolivia initially sought to annul the Quiborax award before an ICSID Ad Hoc Committee. At the same time, the parties entered into settlement talks and enforcement of the award was provisionally stayed by the ICSID Secretary General. When the settlement talks fell through, the ICSID Ad Hoc Committee did not lift the stay on the basis of Bolivia's public statements and official submissions that it would honor the award if it was not annulled. The award was upheld and the parties reached a settlement in June 2018, envisaging a 25 percent discount. 224 The award in South American Silver Limited v Bolivia was settled within nine months, albeit after the investor had commenced enforcement proceedings before the US courts. 225 b) Romania, Hungary and Slovakia Romania: Romania has been involved in 19 arbitrations under the ECT and its BITs. Of the three adverse awards, Romania voluntarily paid the Awdi award-an ICSID award pursuant to the Romania-US BIT-within a year of issuance of the award. 226 Romania has been resisting enforcement of the Micula award, rendered under the Romania-Sweden BIT, in multiple jurisdictions on the basis, inter alia, that compliance would amount to a violation of EU State aid law and that the Achmea decision renders the arbitration clause contained in the BIT invalid. 227 In December 2019, Romania allegedly agreed to pay the awarded amount, 228 but we have not identified a source confirming that Romania has indeed made the payment (and, as at 31 December 2019, enforcement proceedings against Romania were ongoing). There is no public information regarding payment of the Gavazzi award, rendered under the Italy-Romania BIT.
Hungary: Hungary has received seven adverse awards in 16 arbitrations. As at 31 December 2019, Hungary is pursuing annulment of the Edenred SA, Dan Cake, Sodexo and UP and CD Holding Internationale awards before ICSID Ad Hoc Committees. There is no publicly available information about payment of the Inicia Zrt award, issued under the UK-Hungary BIT. As reported, and to our knowledge, Hungary has paid the EDF and ADC awards. 229 Slovakia: Thirteen investment claims have been filed against Slovakia. It settled one arbitration before it reached the damages phase. Two adverse awards have been issued against Slovakia: CSOB and Achmea. Slovakia voluntarily paid the CSOB award-which arose from an intra-EU BIT-in 2005. 230 Following the CJEU's judgment, the Supreme Court of Germany set aside the Achmea award in October 2018. 231 c) Turkey Turkey has prevailed or settled prior to an award on damages over two-thirds of its 14 arbitrations. In all six Uzan family arbitrations, tribunals have ruled in favor of Turkey. In the Uzan awards (issued between 2009 and 2016), the investors were ordered to pay more than US$25 million in costs to Turkey in the aggregate. 232 Public reporting suggests that Turkey has only been able to recover 20 percent of this amount as of 2013. 233 On the other hand, Turkey has voluntarily paid the only adverse award rendered against it, in the PSEG case, without any enforcement proceedings (US$9 million). 234 Two of the three ongoing cases against Turkey reportedly arose out of the Georgia: Georgia has been a respondent in 14 arbitrations, three of which are pending. It voluntarily paid all of the four damages awards against it. 236 In some cases, compliance took place after the investors commenced enforcement proceedings. 237 The Kardassopoulos and Fuchs arbitration may be briefly noted. In March 2010, Mr Kardassopoulos and Mr Fuchs were awarded more than US$90 million after an ICSID tribunal found Georgia liable for terminating a concession to develop an oil pipeline. Georgia sought to annul the award before an ICSID Ad Hoc Committee. While the annulment proceeding was pending, Georgia arrested Mr Fuchs as he visited to the country, which he alleged was at the invitation of the Georgian Prime Minister to negotiate a post-award settlement. 238 He was accused of offering a bribe to the deputy finance minister and was sentenced to seven years' imprisonment. 239 Mr Fuchs maintained that he was innocent and viewed his incarceration as pressure to forgo payment of the award. 240 In parallel, Mr Fuchs commenced enforcement proceedings in New York and filed a claim before the European Court of Human Rights. 241 Following a request from Mr Fuchs's home State, Israel, he was pardoned and left the country. Reportedly, the parties agreed to settle for US$37 million. 242 Serbia: Five awards on damages have been issued against Serbia in a total of 12 arbitrations. Serbia has honored three. 243 We have not been able to retrieve information as to whether the awards in Kunsttrans Holding GmBH and and UAB "ARVI" ir ko and UAB 'SANITEX' have been paid. 244 Moldova: Tribunals have rendered an award on damages in five out of the 14 arbitrations against Moldova. 245 Moldova is reported to have paid the amounts awarded to the investors in Frank Arif, Iurii Bogdanov (III) and Iurii Bogdanov et al (I), 246 but there is no confirmation of compliance with the award in Zbigniew Piotr Grot and others. 247 Moldova is currently seeking to annul the Energoalians award before the French courts, on the ground that Energoalians' (now Komstroy 248 ) claims for money from Moldova's State-owned energy operator did not qualify as an investment under the ECT. On 12 April 2016, the Paris Cour d'Appel set the award aside, finding that a claim to money deriving from a cross-border electricity supply contract does not qualify as a protected investment under the ECT. 249 The decision was quashed by the Cour de Cassation in 2018. 250 In September 2019, the Paris Cour d'Appel suspended the proceedings on remand and referred to the European Court of Justice the question whether a claim to money under an electricity sales contract could qualify as an investment under the ECT. 251 (v) States with few or no adverse awards Of the countries that have been respondents in more than 10 but fewer than 20 arbitrations, Algeria, 252 Bulgaria, 253 Colombia, Costa Rica, 254 Croatia, 255 Italy, Turkmenistan and the USA 256 have had little to no involvement in complying with an adverse award. The following points are of note: Thirteen of the 14 arbitrations against Colombia are pending as at 31 December 2019. Colombia has announced its intention to seek annulment of the award in Glencore International (I). 257 Italy has thus far been unsuccessful in two of the 11 arbitrations against it. The two arbitrations CEF Energia v Italy and Greentech Energy Systems and Novenergia v Italy are both based on intra-EU BITs/ECT. 258 It is not yet known whether Italy has honored the awards. Turkmenistan has faced 13 arbitrations, two of which resulted in adverse awards. The Adam Dagan award was apparently satisfied within a year of its issuance. 259 It is not clear whether Turkmenistan has paid the award in Garanti Koza. 260

V. ANALYSIS
The principal goal of the preceding section has been to examine whether the prevalent paradigm (or mantra) that States largely comply with investment awards is in tension with the publicly known facts. We will address this in what follows, together with other inferences from the data and developments presented above.

A. States Prevail More Often than Investors
It is helpful first to take note of the overall results from concluded proceedings. This allows us to contextualize compliance/non-compliance.
It is known by now that States generally prevail in investment treaty arbitration more often than investors. The 32 States discussed above were involved in 528 concluded arbitrations. In 185 instances, or 35 percent of the arbitrations, the State prevailed or no damages were payable by the State despite an adverse ruling on liability. Some 170 arbitrations, or 32 percent of the concluded arbitrations, resulted in a damages award in favor of the investor. Lastly, a claim was withdrawn or settled prior to an award of damages in 173 arbitrations, or 33 percent of the concluded cases.
This largely corresponds to UNCTAD data. 261 Those statistics indicate that States have defeated investors' claims (on preliminary objections, merits or damages) in 38.6 percent of the 674 publicly known concluded investment treaty disputes. 262 Settlements before a damages award or discontinued arbitrations account for the remaining 32 percent of all concluded arbitrations. 263 Investors have secured damages awards in 29.4 percent of the cases. Such damages awards will include instances in which the investor has received a small fraction of the claimed amount, which the State might also see as a 'win'. 264

B. States Often Seek Annulment
Ordinarily, the obligation to comply with an award arises at the time of the award (or, more specifically, at the date established in the award itself). 266 At the same time, both under the ICSID Convention system and outside it, States (and investors) can seek the annulment or setting aside of an award. 267 Whereas a State may seek an order to stay enforcement while annulment is pending, such orders do not affect the obligation to comply with an award: they address the award creditor's efforts forcibly to collect while annulment is ongoing. 268

16%
Rate of annulment sought (170 awards against States)

Annulment initiated by State No annulment initiated by State
Although the standard for ICSID annulment is exacting, 269 States often seek to annul or set aside adverse awards. Of the 170 disputes resulting in damages awards that we have examined, States have initiated annulment or setting-aside proceedings in 141, or 83 percent of the cases. The remaining 26 awards were mostly complied with voluntarily (or, in some cases, it is not known whether the payment was made). Bolivia, for instance, has never sought to annul an adverse award against it. On the other hand, States that appear more frequently as respondents, such as Argentina, Venezuela, Ecuador and Russia, have challenged most adverse awards.
A State is thus likely to seek annulment and not voluntarily to comply with an award while annulment proceedings are ongoing. This may be so: (i) because of unwillingness to take the responsibility for payment of significant amounts where a remedy is still theoretically available or where such a remedy is being pursued; (ii) due to political considerations; (iii) as a result of earnest convictions that the award is incorrect or unjust; (iv) in order to obtain additional time to comply; (v) for reasons of posturing vis-à-vis other investors as a State reluctant to pay damages, etc. In other words, for certain States, voluntary compliance becomes an option only when they have exhausted all available remedies against the adverse award.

C. The Instances of Non-Compliance are Notable and will Mount
This contribution's primary inquiry has been to test the prediction of the founders of the modern international investment regime-and the hypothesis supported by most observers-that compliance with investment awards would be (or is) the norm, generally and even overwhelmingly.
It is correct that many States have observed their international obligations to comply with investment awards, with approximately a third of the States examined here having perfect records and several others not having complied with one award only. For example, Ecuador and Bolivia (past heavy critics of the investment regime that denounced the ICSID Convention) and Egypt and the Czech Republic (among the top five most sued States) have generally complied with adverse awards against them. 270 At the same time, and as the above discussion has shown, the instances of noncompliance are significant. The States reviewed in this survey have paid damages in 85 of the 170 cases that they lost. There is no public information about payment in 51, or 30.5 percent, of these cases. As noted above, it is possible that some of the disputes recorded here as 'Payment not known' have been settled (partly or fully) without information of such compliance being available publicly. Even with that caveat in mind, the data examined here show that non-payment can no longer be considered a theoretical possibility. Currently unpaid awards -by issuance As discussed above, among the three most sued States, compliance issues abound: In many cases, Argentina's compliance with investment awards was preceded by investors pursuing enforcement or by diplomatic pressure. Often, settlement took years to achieve. As regards Venezuela, with the exception of Gold Reserve, there is no public information that the State has satisfied any of the post-2012 damages awards against it (12 for which payment remains unknown and five in relation to which annulment proceedings are pending). Enforcement action against Venezuela is ongoing in numerous jurisdictions. As for Spain, there is no indication that Spain has paid any award since Maffezini (itself rendered in November 2000 and worth 180,000 euros) and there is little hope that, following Achmea, Spain will voluntarily comply with intra-EU awards.
Public information on compliance is also lacking in relation to an important number of awards against the Russian Federation, Kazakhstan, Kyrgyzstan, Libya and Ukraine. 271 Conversely, the most widely publicized enforcement efforts are associated with some of these jurisdictions.
Several other points emerge from the data set examined in this study. First, where a State observes its obligations under an arbitral award, such observance usually follows a decision on annulment. Whereas most States have made payments promptly following an unsuccessful annulment outcome, some States have complied with significant delays and settlements have involved significant discounts. The matter of delay can be addressed with the awarding of interest, whereas, as far as discounts are concerned, some investors may already include relevant markdowns in 271 The enforcement proceedings before the Ukrainian courts in relation to two awards against Ukraine are in their final phases. their long-term economic models. At the same time, for other industries or types of investors, there may be little margin for delayed and/or discounted recovery. Secondly, where a State agrees to settle a dispute, it might not comply with the terms of the settlement at a later stage. This is seen, for example, in the case of Venezuela. 272 Venezuela failed to observe several settlements, and recently its National Assembly has declared the arrangements with Crystallex and Rusoro null and void. Similarly, the Williams Companies have launched a second arbitration, alleging that Venezuela's failure to comply with the settlement of the first arbitration violates international law.
Thirdly, and perhaps unsurprisingly, the information examined here supports the conclusion that where States face a series of arbitrations related to the same or similar measures with the risk of numerous consecutive losses, they are unlikely to comply (or, at least, comply promptly). This is borne out by the discussion of the experiences of Argentina, Venezuela and Spain, but is also likely to be relevant, for example, to the Crimea cases against the Russian Federation.
Faced with the prospect of billions in damages, a State may not have the meansor simply be unwilling-to pay. A State could be concerned that an early arrangement with one investor would create a precedent or otherwise weaken its overall negotiation position. Or, a State may firmly believe that, for whatever reason (economic, legal, political or other), it had the right or legitimacy to take the important measures leading to the flurry of proceedings.
Such defaults will have practical ramifications for investors. Unlike domestic legal systems, international law does not contain rules for orderly, efficient and rule-based (eg, hierarchical or pro-rata) payment of creditors. 273 Award creditors will be required to litigate concurrently and in competition with one another, as is the case with investors seeking to enforce against Venezuela and Spain at present. In such circumstances, the ability of an investor to come in first in obtaining an award, negotiating an arrangement and/or attaching assets will be paramount. At the same time, first-in-time investors may blaze the trail for those who follow, by both securing substantive findings of tribunals and opening enforcement avenues. For example, Crystallex's successful piercing of PDVSA's veil is likely to cause other creditors to swarm the assets of Venezuela's oil giant.
Fourthly, the data examined here neither firmly supports nor disproves the intuitive notion that a State may be less likely to comply with high-value awards as opposed to lower-value ones. Of the 20 cases in which the highest damages were awarded, nine are currently pending annulment, five appear to have resulted in compliance and for six payments is unknown. Payments that reached nearly a US$1billion were made in Gold Reserve, Occidental II and CSOB, by Venezuela, Ecuador and Slovakia respectively. Given that States rarely communicate the reasons for settlement or payment, it is not always possible to discern why a State may comply with awards or why it would comply with one award but not others. For example, whereas Venezuela has not paid many high-value awards, the payment of the award in Gold Reserve may have been motivated by ancillary reasons. For example, it has been reported that the settlement allowed Venezuela to acquire certain mining rights, 272  which it then used as collateral for a US$2 billion loan. 274 At the same time, we have identified five cases in which the damages range between US$400,000 and US$5 million, annulment proceedings are not ongoing, and information on payment is unavailable. 275 Accordingly, even low-value awards may not be honored.
Fifthly, States may not be willing to comply due to political reasons. The Russian Federation has not complied and is unlikely voluntarily to pay damages relating to the annexation of Crimea. Ukraine may not feel compelled to honor awards in favor of Russian companies or individuals.
Sixthly, States may refuse payment due to strong disagreement with the correctness of an award. As discussed above, Mexico, which has a perfect overall compliance record, initially did not want to pay the award in Cargill despite the fact that it had complied with other awards relating to the very same measures. Mexico bore a principled disagreement with the ruling in Cargill that extended damages (or the tribunal's jurisdiction, depending on one's interpretation of the award) to goods (ie, HFCS) produced in the United States and traded in Mexico: the State appears to have considered that such trade of goods originating from the United States was squarely that-international trade-and not an investment matter. Similarly, Argentina had ample arguments not to pay the CMS award, after the ICSID Ad Hoc Committee heavily criticized the award but did not annul it. 276 Finally, since Achmea, many of the EU Member States examined here, including, Spain, Poland, Romania, Slovakia and Italy have not complied or have signaled that they would not comply with adverse intra-EU awards. One may debate whether the conflict between EU law and investment law originated in truly competing legal paradigms or was actually engineered by structures within the EU who disliked the experience or prospect of being a respondent in investment arbitration more than they liked the protection that investment treaties offer to their own investors. But this is irrelevant for how EU States will behave in relation to adverse intra-EU awards: these are very unlikely to be complied with within the EU and massive enforcement efforts will be required for any State-owned assets outside the EU.

D. Enforcement is Both Difficult and Unavoidable
It is not the purpose of this article to delve into the specific difficulties presented by enforcement against sovereigns. This subject has been amply discussed in commentary. 277 The difficulty in enforcing against States arises from the concurrent operation of two principles: the State's sovereign immunity from execution over non-commercial assets and the separate legal personality of State entities that often hold title over the State's commercial assets. 278 Where it may not be reasonable or even desirable to call for significant exceptions to the principle of sovereign immunity from execution for jure imperii activities, it is the legal framework on the piercing of the corporate 'veil' that could give way to allow for execution over assets held by entities and instrumentalities that are the State's alter ego. 279 Yet, the instances of successful 'veil' piercing continue to be extremely rare, with Crystallex's victory against PDVSA in the United States being the leading example in recent times.
The result is that enforcing against a State can be very difficult. It requires exceptional financial resources, specific expertise and an abundance of time. Even if an investor would have access to such resources, it may be reluctant to employ them where it has an ongoing relationship with the State, given that enforcement is usually received as particularly hostile. And even where an investor is unbridled in its ability and inclination to enforce, there simply may not be sufficient attachable assets outside the State. Relatedly, the more that States are exposed to enforcement action, the more they will seek (or learn) to shield their property with varying degrees of sophistication. As discussed above, a US court denied the investors' petitions to preclude Venezuelan companies from repatriating assets, but nevertheless observed that the 'intent behind this series of transactions was to hinder creditors'. 280 Frequently, an investor's endgame will be to secure settlement, by causing sufficient nuisance via enforcement and perhaps also by waiting for a new administration that may be more amenable to discussion. An investor may also seek to monetize its award by selling or assigning the right to compensation to third parties. Alternatively, investors may plan ahead for the non-compliance scenario by obtaining political risk insurance for a State's failure to comply with an investment award or by securing waivers of sovereign immunity from execution.
Where States have not sought to comply with a significant number of awards and/ or have pursued annulment, it is unsurprising that investors have often had to pursue enforcement.
Investors have initiated enforcement proceedings in 67 out of the 170 cases in which a damages award was rendered in their favor, ie, in 40 percent of the cases. According to public information, enforcement action has been taken against almost every State examined here that has been ordered to pay damages, with the exception of the Czech Republic, Hungary, India and Canada.
Often, those enforcement efforts have involved sprawling, multi-year and multijurisdiction litigation. In addition to the enforcement chronicles often referred to by commentators (such as the Sedelmayer dispute), the post-award litigation between the Statis and Kazakhstan exemplify global and all-in battles. As discussed above, these proceedings have lasted years, and involved allegations of procedural fraud and the discovery of documents relating to the fraud allegations before US courts. The Micula brothers continue to seek the enforcement of their 2013 award, having also gone through countless domestic and EU court proceedings. Similarly, the majority shareholders in the former Yukos Oil Company witnessed the amendment of the domestic rules on attachment in two jurisdictions while they were in the course of seizing assets.
In short, enforcement is often necessary. Where investors will usually have significant hurdles to surmount, enforcement efforts may be accompanied by other forms of pressure, such as diplomatic protection and State countermeasures, which are discussed next.

E. Non-Compliance Breeds Re-politicization of Disputes
Where the host State fails to comply and where enforcement actions do not yield results, the investor has one recourse left: to turn to its own State.
As the Permanent Court of International Justice held in 1924, diplomatic protection is rooted in the 'elementary principle of international law that a State is entitled to protect its subjects' where 'they have been unable to obtain satisfaction through the ordinary channels'. 281 Although the source of diplomatic protection is international law, its nature is inherently political. First, espousal is not automatic, but rather a matter left entirely to the State's discretion, driven by any consideration that the State deems relevant, including politics. 282 The decision whether to engage in diplomatic protection can thus involve the weighing of various factors, including the importance of the national seeking protection, the State's relationship with the offending State and the relative power of the two States. Secondly, the exercise of diplomatic protection can entail peaceful diplomatic exchanges or the initiation of intra-State proceedings, 283 but it can also be accompanied by countermeasures, 284 namely self-help action that is otherwise wrongful. 285 In that context, States have historically feared that other States would abuse retaliatory action and even resort to the use of armed force in the form of a countermeasure. 286 Treaty regimes, including the ICSID system, were created to address precisely these problems with States taking up their nationals' cause. 287 The 'fundamental objective' of ICSID-and, it could be said, the modern international investment regime more generally-is to depoliticize investment-related disputes. 288 To this end, the ICSID Convention precludes diplomatic protection in relation to a dispute that an investor and a State have consented to arbitrate, with one exception: 289 where a State fails to comply with an award, an investor may solicit its home State to exert diplomatic pressure on the host State. 290 Still, as discussed, the ICSID drafters considered that such failures would be rare. As the International Court of Justice held in Diallo, 'the role of diplomatic protection somewhat faded, as in practice recourse is only made to in rare cases where treaty regimes do not exist or have proved inoperative.
[. . .] [Diplomatic protection] would therefore appear to constitute the very last resort for the protection of foreign investments'. 291 The cases examined above indicate, however, that this 'very last resort' is not a very infrequent reality and is sometimes used prior to an award: Argentina paid numerous awards only after a number of investors lobbied their governments and the United States took action against Argentina. In particular, the US placed significant reliance on trade benefits and opposed World Bank and Inter-American Development Bank loans being issued to Argentina, all worth billions of US dollars; AIG and Chevron sought the US Government's assistance in relation to their claims against Kazakhstan and Ecuador respectively; Aucoven sought the assistance of Mexico to compel Venezuela to pay its award, on numerous occasions; Repsol lobbied Spain and the European Union when Argentina planned to take over its Argentinian arm; Israel was involved in the process leading to the post-award settlement between Mr Fuchs and Georgia; on numerous occasions, Sweden advocated for Petrobart when Kyrgyzstan failed to comply with the award; and Valle Esina solicited the Italian Government to secure payment of its award against the Russian Federation.
The post-award power struggle is bidirectional. To take one example discussed above, when the Yukos majority shareholders began enforcement action against Russia, the State issued diplomatic notes to the States where enforcement proceedings were ongoing, in which it threatened reciprocal seizures of property. In that context and at that time, France and Belgium changed their laws on attachment.
There are therefore notable instances where the investment treaty regime has proven 'inoperative' and where investors have turned to their own State for help. But diplomatic protection and the use of countermeasures themselves bring backthrough the back door, as it were-problems that the modern investment protection regime sought to preclude in the first place. To name a few: (i) the host State may consider itself illegitimately overpowered by the home State; (ii) the home State may have no leverage vis-à-vis the host State; (iii) the home State may be wary of taking more aggressive action-such as countermeasures-that is otherwise wrongful and subject to strict international law conditions; and (iv) the home State may have little interest in devoting time and resources to the particular investor's claims.

VI. CONCLUSION
In some respects, how one sees the results from the present analysis may be said to be a function of whether one is more inclined towards the 'glass half full' or the 'glass half empty' viewpoint.
A preliminary point that is not a matter of taste: the ICSID founders' prognosis that compliance with investment awards would be a non-issue-framed, as it was, in such sweeping terms-has not held true. Whereas the majority of States have promptly complied with adverse awards usually after seeking annulment (with many having immaculate records), the instances of non-compliance or significantly delayed compliance are important. Since the 2000s, instances of non-compliance have increased and, by all accounts, are likely to continue to do so, especially where disputes are burgeoning, intra-EU or political. In 40 percent or more of the cases in which a State lost, enforcement proceedings were initiated. Several disputes have required the involvement of the investor's home State. In view of the more extensive data set examined here, the early instances of non-compliance discussed in the previous scholarship appear to have been more symptomatic of systemic weaknesses than exceptions proving the rule of compliance. In practice this means that there are, and will be, cases in which, to get from expropriation to compensation, an injured investor will need to go through arbitration, annulment, enforcement and even diplomatic protection. That is a costly prospect.
Whether this state of affairs is alarming or not is perhaps more dependent on one's point of view. Seen in the abstract, instances of non-compliance may cause reason for concern and may trigger debate about the gap between the authority and the effectiveness of the investment protection regime. Seen in historic context, the assessment may be different. As that giant of arbitration, the late Johnny Veeder, has observed, it took decades of inter-State toing-and-froing for the UK investor to obtain compensation in relation to the award in the famous Lena Goldfields arbitration against the Soviet Union. 292 That dispute played out within the classical framework for investment dispute resolution, the effectiveness of which rested entirely on the State's ability and inclination to espouse its nationals' claims. Compared with pre-ICSID times, it may be said without hesitation that the modern system continues to be revolutionary in ensuring rule-based international investment protection and adjudication-regardless of the imperfect compliance record described above.