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ดุลพาห

on which arbitration rules have been chosen for a particular dispute. However,
questions arise as to the enforceability of an ICS award as an ICSID award under

the ICSID Convention and an arbitral award under the New York Convention.

In the context of ICSID, for example, although the three treaties define

the decision as “final awards”, it appears that an investor would not be able
to seek enforcement in a Contracting State of ICSID that is not a Contracting
State of the CETA, the TTIP or the EU-Vietnam FTA. This is because an ICS

award would not be an “award rendered pursuant to [the ICSID] Convention”
within the meaning of Article 54 of the ICSID Convention. Conversely, an
arbitral tribunal established under the ICSID Convention would find itself with
no jurisdiction under Article 25 to settle a dispute arising out of the CETA,
the EU-Vietnam FTA or the CETA. Thus, the “final award” under the respective

FTA would be a decision pursuant to the CETA, the TTIP or the EU-Vietnam
FTA. It would, accordingly, likely only be enforceable in the Contracting States
of the applicable FTA as courts of other ICSID Contracting States are not

bound by each of the three FTA.

Enforcement within the territory of a Contracting Party is not likely to
be problematic given the treaty provision. For the New York Convention to be

applicable, however, the decisive element will be whether an ICS final award
106
can be qualified as an “arbitral award” within the meaning of Article 1(1)
of the New York Convention. Neither “arbitral award” nor “arbitral tribunal” are
defined by the New York Convention. Article 1(2) clarifies that arbitral awards
“shall include not only awards made by arbitrators appointed for each case

but also those made by permanent arbitral bodies to which the parties have
submitted.” Given that there is no party autonomy in appointing arbitrators,

106. Article 1(1) of the New York Convention states: “This Convention shall apply to the
recognition and enforcement of arbitral awards made in the territory of a State other than
the State where the recognition and enforcement of such awards are sought, and arising
out of differences between persons, whether physical or legal. It shall also apply to
arbitral awards not considered as domestic awards in the State where their recognition
and enforcement are sought.”

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