- 56 -
in international arbitration cases. In short, he believes that
political considerations may have played a significant part in
the tribunal’s choice of language. Mr. Brower believes that
international arbitral tribunals choose their language carefully
to insure that both parties will honor the award, particularly in
disputes involving sovereign states, which may hinder enforcement
by invoking the doctrine of sovereign immunity. In particular,
Mr. Brower believes that arbitrators called upon to rule on
allegations of unlawful actions by a sovereign conventionally
exhibit a certain sensitivity to the political framework within
which the case arises. He believes that sovereign states
invariably and vigorously resist accusations of unlawfulness, not
only because of the higher compensation a finding of unlawfulness
might entail but also, and more importantly, because no
government wishes to be branded before the world as having acted
unlawfully, particularly if it wishes to encourage future foreign
investment. Mr. Brower has examined the award and believes that
it provides “abundant evidence” of the tribunal’s “attention to
pragmatic and political concerns”. He surmises that Kuwait would
not have wanted any award of compensation either to state
explicitly or to suggest impliedly, by its evident amount or by
its nature, unlawfulness. Mr. Brower states:
In particular, Kuwait would have wished to avoid an
award which, even while finding it acted lawfully,
appeared to grant compensation reflecting the value of
what was expropriated at the time of the award (instead
Page: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 NextLast modified: May 25, 2011