Investor Presentaiton
159
Upon the signature of the New York Convention, a significant
number of States also made a declaration that they will apply the
Convention only to differences arising out of legal relationships that
are considered "commercial" under national law. In order to avoid
any dispute about the applicability of the New York Convention in
an enforcement procedure, some IIAs explicitly state that the
relevant relationships are deemed "commercial" for the purposes of
the New York Convention."
191
Under Article V(1) of the New York Convention, a national
court of the State where the enforcement is sought can only refuse to
enforce an award if the party challenging it offers proof that:
"(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was
made; or
(b) The party against whom the award is invoked was not
given proper notice of the appointment of the arbitrator or of
the arbitration proceedings or was otherwise unable to
present his case; or
(c)The award deals with a difference not contemplated by
or not falling within the terms of the submission to arbitration,
or it contains decisions on matters beyond the scope of the
submission to arbitration [...].; or
be in the territory of a State that is a party to the New York Convention."
(Article 8.22(1))
191 Canada's Model BIT (2004), Article 45.7 ("A claim that is submitted to
arbitration under this Section shall be considered to arise out of a
commercial relationship or transaction for purposes of Article I of the New
York Convention"). See also Reinisch, 2010, pp. 671, 673-674 (noting that
there is a general agreement that awards rendered under IIAS are
enforceable under the New York Convention).
UNCTAD Series on International Investment Agreements IIView entire presentation