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I / 2. ANALYSIS (I) / ARTICLE I(3) / B. Commercial reservation /
84. In the course of the drafting of article I, the ECOSOC ad hoc Committee considered whether the Convention should be limited to arbitral awards arising out of commercial disputes, as was envisaged in the early draft of the Convention prepared by the ICC.154 After noting that certain countries do not differentiate between civil and commercial matters, the Committee decided not to limit the applicability of the New York Convention to commercial disputes. However, at the suggestion of the Dutch delegate on the penultimate day of the Conference, the commercial reservation was added.155
154. Travaux préparatoires, Report of the Committee on the Enforcement of International Arbitral Awards, E/2704, E/AC.42/4/Rev.1., p. 8.
155. The Dutch delegate argued that the text of the Convention which prevented States from limiting the application of the Convention to commercial disputes, would cause great difficulties to countries in which commercial law was distinct from civil law, such as France, Belgium and Turkey. See Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Twenty-third Meeting, E/CONF.26/SR.23, pp. 7, 12.
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85. When a State has made a commercial reservation, that State applies the New York Convention only to disputes arising out of “legal relationships considered as commercial under the national law of the State making such declaration”. Courts have interpreted the scope of this phrase to be broad.156 For example, a court in India has construed the phrase as being of the “largest import” encompassing “all the business and trade transactions in any of their forms”.157 A United States court has similarly held that the notion of “commercial relationship” is broad, noting that its purpose is only “to exclude matrimonial and other domestic relations awards, political awards, and the like”.158
156. Michael Pryles, Reservations Available to Member States: The Reciprocal and Commercial Reservations, in ENFORCEMENT OF ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 161, 178-179 (E. Gaillard, D. Di Pietro eds., 2008).
157. Union of India and ors v. Lief Hoegh & Co. and ors., High Court of Gujarat, India, 4 May 1982.
158. Island Territory of Curacao v. Solitron Devices, Inc., Court of Appeals, Second Circuit, United States of America, 14 February 1973, 356 F.Supp. 1.
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87. Conversely, in one case, an Indian court held that a contract for the supply of technical know-how in return for a fee was not a commercial contract.169 In another case, a Tunisian court held that a contract for an architectural plan for a resort was not commercial under Tunisian law.170 In yet a further case, a United States court held that a dispute arising out of proceedings to disqualify counsel was non-commercial.171
170. Taieb Haddad v. Hans Barett, Société d’Investissement Kal, Supreme Court, Tunisia, 10 November 1993, XXIII Y.B. COM. ARB. 770 (1998).
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88. An issue that has arisen before courts is whether the expression “whether contractual or not” includes claims in tort.
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89. Courts have found that the expression “whether contractual or not” does cover torts. For example, the Court of Appeal of Alberta, Canada, held that the Convention “extend[s] [its] scope to liability in tort so long as the relationship that creates liability is one that can fairly be described as commercial”. The Court found that the claim that a corporation had conspired with its subsidiaries to cause harm to a person concerned a dispute “arising out of a commercial legal relationship, whether contractual or not”.172
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9. A closely related issue to that of the definition of the terms “recognition” and “enforcement” is whether a party must seek recognition and enforcement together or whether it can independently seek the recognition of an award.
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90. Similarly, the High Court of Delhi held that the Convention applies to “disputes arising out of legal relationships whether stricto sensu contractual or not provided they are considered as commercial under the domestic law of the State making such a declaration”.173
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91. The case law is fully consistent with the travaux préparatoires.174
174. In the course of the drafting of the commerciality reservation, the Greek delegate proposed to include, “in addition to disputes arising out of commercial contracts, disputes arising out of commercial obligations ex delictu and quasi ex delictu”. See Travaux préparatoires, Recognition and Enforcement of Foreign Arbitral Awards, Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/2822/Add.2, Annex I, p. 1. The Italian delegate proposed to use the term “relations” instead of the term “contract” so as to “cover both contractual and non-contractual disputes”. See Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Twenty-first Meeting, E/CONF.26/SR.21, p. 16. The delegate from the United Kingdom proposed a further amendment to include the wording “whether contractual or not” after the wording “legal relationship”, which was accepted by the Conference. See Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Record of the Twenty-third Meeting, E/CONF.26/SR.23, p. 11.
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