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ARE STATES ‘PERSONS’ FOR THE PURPOSES OF THE NEW YORK CONVENTION?: THE 

RULING OF THE UNITED STATES COURT OF APPEALS FOR THE DC CIRCUIT IN 

ZHONGSHAN FUCHENG INDUSTRIAL INVESTMENT CO. LTD V FEDERAL REPUBLIC OF 

NIGERIA (No. 23-7016) IN VIEW* 

 

Abstract 

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) 

applied for the recognition and enforcement of foreign arbitral awards which arose out of differences between 

‘persons’. The question had persisted on whether ‘persons’ in the Convention included States, whether acting in 

their sovereign capacity or acting in their private capacity. The aim of this study was to review the state of law 

on the purport of the word ‘persons’ for the purposes of recognition and enforcement under the New York 

Convention in the light of the recent split decision of the US Court of Appeals for the DC Circuit in Zhongshan 

Fucheng Industrial Investment Co. Ltd v Federal Republic of Nigeria. The objective of this study was to determine 

whether ‘persons’ included States both acting in their sovereign capacity and in their private or commercial 

capacity. Doctrinal method was employed in the course of this research with the analyses of the relevant sections 
of the New York Convention itself and case laws. This research found that the New York Convention did not define 

the word ‘persons’ used in Article 1 (1). It was further found that the failure to define the word ‘persons’ in the 

New York Convention had sometimes led to controversies on whether States qualified as such, whether acting in 

their sovereign capacity or private capacity. It was also found that except to the extent that States consented, 

sovereign acts of a State generally enjoyed sovereign immunity. It was therefore recommended that the New York 

Convention should be amended to include a clause that should specifically define ‘persons’ as natural and 

juridical persons, including a State only when acting in private or commercial capacity.    

 

Keywords: New York Convention, Sovereign Acts, Persons, Recognition, Enforcement 

 

1. Introduction 

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitration Award 1958, 
otherwise known as the New York Convention, came into force on the 7th of June 1959. It replaced the Geneva 

Protocol on Arbitration Clauses of 1923 and Geneva Convention on the Execution of Foreign Arbitral Awards of 

1927.1  Article 1 (1) of the New York Convention provides as follows: 

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 recognition and 

enforcement are sought. 

 

‘Persons’ as used here is not defined in the Convention. While there is no doubt that ‘persons’ includes natural 

and juridical persons, it is not clear whether this includes States both in their sovereign and private capacities. The 
travaux preparatoires of the New York Convention was also not conclusive on whether ‘persons’ includes States 

acting in their sovereign capacity and States acting in their private capacity. This distinction is pertinent simply 

because different rules of immunity apply to States when acting in their sovereign capacity and when acting in 

their private or commercial capacity.  The lack of definite definition of ‘persons’ in the New York Convention 

has given room to various interpretations with varying effects. The aim of this study, therefore, is to examine the 

law on the purport of the word ‘persons’ for the purposes of recognition and enforcement under the New York 

Convention. This is manifested in the recent ruling of the United States Court of Appeals for the District of 

Columbia Circuit in the case of Zhongshan Fucheng Industrial Investment Co Ltd v Federal Republic of Nigeria2. 

The objective of this study is to determine whether the expression ‘persons’ in the New York Convention includes 

States both acting both in their sovereign capacity and in their private or commercial capacity.  

 

2. The Ruling of the United States Court of Appeals for the District of Columbia Circuit in the Case of 

Zhongshan Fucheng Industrial Investment Co Ltd v Federal Republic of Nigeria3 

The major issue considered in this case by the United States Court of Appeals for the District of Columbia Circuit 

was whether States acting in their sovereign capacity qualify as a ‘person’ under the New York Convention. The 

appeal is one of the numerous cases that stemmed from an arbitration award made against Nigeria in favour of the 

Chinese company, Zhongshan Fucheng Industrial Investment Co Ltd (Zhongshan), in 2021 by an arbitration panel 

                                                             
*By Ikechukwu Okwudili ODIONU, LLB, BL, LLM, PhD, McArb, Lecturer, Faculty of Law, University on the Niger; 
Principal Attorney, Ike Odionu & Associates, No. 110 Modebe Avenue Onitsha, Anambra State, Nigeria. Email: 
ikeodionu@yahoo.com. Phone No: 08037064597. 
1 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), Article 
VII (2). 
2No. 23-7016. 
3Ibid. 

mailto:ikeodionu@yahoo.com


ODIONU: Are States ‘Persons’ for the Purposes of the New York Convention?: The Ruling of the United States 

Court of Appeals for the DC Circuit in Zhongshan Fucheng Industrial Investment Co. Ltd v Federal Republic of 

Nigeria (No. 23-7016) in View 

98 | P a g e  

in the United Kingdom. The arbitration was conducted under the China-Nigeria Bilateral Investment Treaty (BIT) 
of 2001 by which Nigeria undertook to protect investments by Chinese companies in Nigeria, among other things. 

 

In 2007, Ogun State of Nigeria contracted with Zhongshan to develop the Ogun Guangdong Free Trade Zone. 

Zhongshan claimed to have invested millions of dollars and resources to develop the park. Following springs of 

misunderstanding, Ogun State eventually terminated the contract in 2016 and threatened the officers of Zhongshan 

with eviction. Ogun State later arrested two executives of Zhongshan for ‘breach of trust’. Nigerian federal police 

also arrested one Zhongshan official and detained him for ten days under deplorable conditions. All the efforts 

Zhongshan made to ventilate their right through the Nigerian courts failed. Consequently, in August 2018, 

Zhongshan initiated arbitration proceeding against Nigeria pursuant to Article 9 of the China-Nigeria BIT which 

Nigeria willingly participated in. The Arbitral tribunal eventually in 2021 made a Final Award against Nigeria 

and awarded USD 55.6 million, moral damages along with interest, legal and arbitral fees. With Nigeria failing 

to pay these sums of money, Zhongshan brought an action in the United States District Court for the District of 
Columbia4. Nigeria moved to dismiss the case for lack of subject-matter jurisdiction and personal jurisdiction on 

the ground of immunity. Nigeria’s motion for dismissal was refused by the district court which held that the Final 

Award was governed by the New York Convention and therefore was within the United States’ Foreign Sovereign 

Immunities Act (FSIA)5 arbitration exception. Nigeria appealed against this ruling to the United States Court of 

Appeals for the District of Columbia Circuit. 

 

By a split decision of 2:1, the United States Court of Appeals for the District of Columbia Circuit upheld the 

decision of the district court. Both the majority decision and the dissenting view extensively referred to the travaux 

preparatoires of the New York Convention and case law to drive home their points but the travaux preparatoires 

of the New York Convention is not conclusive on when States in their sovereign capacity is included in the 

definition of ‘persons’. Nigeria’s fault in this case revolved around her failure to uphold the terms of the BIT with 
China by failing to protect the Chinese investor, Zhongshan. This deals with Nigeria’s sovereign act under public 

international law. Nigeria is not involved in the contract for the construction of the Free Trade Zone in Ogun and 

so her actions or inactions over this matter did not involve private or commercial acts of Nigeria for which 

immunity could be lifted. Therefore, a finding that the use of ‘persons’ in the New York Convention does not 

include a State acting in her sovereign capacity will automatically clothe Nigeria with sovereign immunity in the 

case with Zhongshan. 

 
The Majority Decision 
The majority decision in this case read by Judge Millett ruled that under the New York Convention ‘the term ‘persons’ 

includes a foreign state that has entered into a bilateral investment treaty under which it assumes treaty obligations owed 
to third parties that are connected to commerce.’6 The majority decision cited a number of cases to buttress the point 

that arbitral awards under the New York Convention has been enforced against foreign States charged with breach of 
investment and commercial treaty obligations.7 The authorities cited by the majority decision did not directly address 

the issue of whether the sovereign act of a State is covered by the New York Convention. Nigeria’s argument here is 
that a sovereign can be classified as a ‘person’ under the New York Convention only when it engages in private activity 

and not when it acts solely as a sovereign as was the case in the Zhongshan matter. The majority decision refuted this 
argument first on the ground that there is no basis for the ‘private-act limitation’ under the New York Convention. To 

further buttress this point, the majority decision referred to Report of the Comm. On the Enf’t of Int’l Arbitral Awards8 

and RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S., Part II Introductory Note9. The 
majority decision stated that commercial-activity limitation is expressly provided for in the New York Convention by 

virtue of the commercial reservation stipulated under Article 1 (3) of the New York Convention. Nigeria’s further 
argument was that the New York Convention applied only to contract claims and not to treaty claims against sovereigns. 

This was also rejected by the majority opinion on the ground of what it called ‘the common practice of confirming 
arbitral awards’ on the basis of ‘a sovereign state’s violation of a treaty created under public international law’. Nigeria’s 

further argument that the immunity exception under the United States’ Foreign Sovereign Immunities Act does not 
apply because the New York Convention does not govern arbitral awards against sovereigns for the violation of treaties 

or public international law was equally rejected. 
 

The majority decision, however, did not consider the effect of immunity on the sovereign acts of a State. On the other 
hand, the dissenting view read by Judge Katsas asserted that reading the text of the New York Convention without the 

                                                             
4 No. 1: 22-cv-00170 
5 Public Law 94-583-Oct. 21, 1976. 
6 Zhongshan Fucheng Industrial Investment Co Ltd v Federal Republic of Nigeria No. 23-7016, p 19. 
7 Tatneft v Ukraine, 21 F.4th 829, 832-834 (D.C. Cir 2021); Chevron Corp., 795 F 3d at 202-203; Olin 
Holdings Ltd v State of Libya, 73 F.4th 92, 96-101 (2d Cir. 2023); Schneider v Kingdom of Thailand, 688 F. 3d 68, 70071 (2d 
Cir. 2012; BG Group, 572 U.S. at 28-31. 
8 24, U.N. Doc. E/AC.42/4 (Mar. 21, 1955) (‘1955 Report’). 
9 (AM.L. INST. 1987. 



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private-act limitation would entail that foreign States would have no immunity for their sovereign acts. In response to 
this, the majority opinion stated that the essential attribute of sovereign immunity ‘is foreign states’ ability voluntarily 

to consent to a suit or proceeding’. The majority decision, therefore, held that by agreeing to arbitrate this dispute, 
Nigeria no longer had any immunity to this lawsuit.10 

 

The Dissenting View 
The dissenting opinion read by Judge Katsas found that since the private acts of Ogun State could not be attributed to 
Nigeria, the award could be said to have arisen out of Nigeria’s sovereign acts which was governed by public 

international law. This now boils down to the question of whether the New York Convention applies to awards made 
on sovereign acts, that is, whether the use of the word ‘persons’ in the Convention includes States acting in their 

sovereign capacity under public law.  
 

The dissenting view referred to some old authorities made before the New York Convention that established that the 

word ‘persons’ did not include the sovereign11 as well as subsequent authorities to that effect.12 The dissenting view, 
however, noted that there was no hard and fast rule about excluding sovereigns from the meaning of ‘persons’. To this 

end, the dissenting view stated that the presumption against including sovereigns as a ‘person’ was strongest for official 
acts13, and that in contrast, whenever the sovereign acted in private capacity, the word ‘person’ was more likely to 

include sovereigns.14 To further illustrate that courts sometimes ‘construe words like ‘person’ to cover sovereigns acting 
in proprietary capacity but not in a sovereign capacity’, the dissenting view referred to the case law where the United 

States’ Supreme Court held that States were regarded as ‘persons’ under the Sherman act when buying goods,15 but not 
regarded as ‘persons’ under the same Act when acting as regulators16 or when wielding State powers.17 

 
Regarding sovereign immunity defence, the dissenting view traced the history of immunity claim from the absolute 

immunity theory which proclaims that sovereigns should be immune from the jurisdiction of domestic courts for all of 
its acts, whether public or private.18 The dissenting view noted that even though the absolute immunity had over the 

years been diluted by the restrictive immunity in order to lift the immunity of the sovereign for its commercial activities, 
when the New York Convention was drafted, no one suggested that States should have no immunity at all. Therefore, 

the mere use of the word ‘persons’ could not, according to the dissenting view, ‘be deemed to reach the government 
acts of foreign sovereigns’.  

 
The dissenting view further stated that applying the New York Convention to disputes between private parties and 

sovereigns under public law not only would eliminate immunity protections but also ‘undercut espousal requirements’. 
In international law, diplomatic protection or diplomatic espousal entitles one State to take diplomatic or other actions 

(espouse a claim) against another State on behalf of its national whose rights and interests have been injured by that 
other State. The only exception to espousal that allows private individuals to raise international claims against the 

offending sovereigns is only when the sovereign itself has agreed to engage directly with the aggrieved individual.19 
The dissenting view stated that disputes under the BIT or multilateral investment treaties were not part of this exception. 

 
The dissenting view further stated that Nigeria’s consent to arbitrate directly with Chinese investors under Article of the 

BIT did not entail consent to enforcement in a domestic court and that consent to the enforcement of an award under 
Article 9 (6) under the BIT meant enforcement through diplomatic processes or international tribunals. 

 

3. Travaux Preparatoires of the New York Convention 
Both the majority decision and the dissenting view in the Zhongshan Fucheng Industrial Investment Co Ltd v Federal 

Republic of Nigeria under reference made extensive references to the drafting history of the New York Convention in 
support of their positions. The dissenting view first found support in the Report of the Committee on the Enforcement 

of International Arbitral Awards20. The dissenting view noted that the Drafting Committee decided to replace 
‘International’ in the name of the New York Convention with ‘Foreign’ to read ‘Convention on the Recognition and 

Enforcement of Foreign Arbitral Award’ instead of ‘Convention on the Recognition and Enforcement of International 
Arbitral Award’. The reason for this change was that ‘International’ would suggest state-to-state arbitrations which is 

                                                             
10 Zhongshan op cit p. 22 
11United States v United Mine Workers of America, 330 U.S. 258 (1947); United States v Cooper Corp., 312 U.S. 600, 603 -
05 (1941; United States v Fox, 94 U.S. 315, 321 
12 Return Mail, Inc. v USPS, 587 U.S. 618, 626-27 (2019); Vermont Agency of Nat. Res. V United States ex rel. Stevens, 529 
U.S. 765, 780-81 (2000); Will v Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). 
13 Georgia v Evans, 316 U.S. 159, 161 -62 (1942); California v United States, 320 U.S. 577, 585-86 (1944). 
14 Parker v Brown, 317 U.S. 341, 351-52 (1943); Wilson v Omaha Indian Tribe, 442 U.S. 653, 667 (1979); United States v 
Knight, 39 U.S. (14 Pet.) 301, 315 (1840). 
15 Evans, 316 U.S. at 161-62. 
16 Parker, 317 U.S. at 351-52. 
17 Bates v State Bar, 433 U.S. 350, 360 (1977). See also Goldfarb v Va. State Bar, 421 U.S. 773, 790-92 (1975); Jefferson 
Cnty. Pharm. Ass’n v Abbott Lab’ys, 460 U.S. 150, 153-154 (1983); Will, 491 U.S. at 64 n.5. 
18 The Schooner Exch. V McFaddon, 11 U.S. (7 Cranch) 11, 116, 136-37 (1812). 
19 Philipp 592 U.S. at 177-78 
20 U.N. Doc. E/AC.42/4 (Mar.21, 1955) (Drafting Committee Report), at 2. 



ODIONU: Are States ‘Persons’ for the Purposes of the New York Convention?: The Ruling of the United States 

Court of Appeals for the DC Circuit in Zhongshan Fucheng Industrial Investment Co. Ltd v Federal Republic of 

Nigeria (No. 23-7016) in View 

100 | P a g e  

clearly not the subject of the New York Convention. To this end, according to the dissenting view, the Committee 
explained that the Convention ‘does not deal with arbitration between States, but deals with the recognition and 

enforcement in one country of arbitral awards made in one country’. 
 

The dissenting view further referred to the position of the Belgium representative in the Drafting Committee who opined 
that the Convention ‘should expressly provide that public enterprises and public utilities should be deemed to be legal 

persons… if their activities were governed by private law’.21 The Drafting Committee rejected the Belgian proposal as 
being ‘superfluous’ but agreed that ‘reference in its report would suffice’. The dissenting view further referred to the 

view of Switzerland that the New York Convention covered ‘international awards in private law’, but not ‘international 
awards in public law’.22  The dissenting view also referred to the expression of concern by the Italian representative that 

the reference to ‘disputes between legal persons’ could be misconstrued to cover ‘a dispute between States,’23 However, 
the President of the Conference at which the Convention was finalized responded that the Drafting Committee ‘had no 

such intention when it prepared the draft Convention’. 
 

Finally, the dissenting view pointed out the comment by the representative of the United States that who highlighted the 
importance of the New York Convention to the efficient settlement of ‘private disputes arising out of international 

trade.’24According to the dissenting view, this suggested that there was no extension to disputes under public 
international law. 

  
On the other hand, the majority decision referred to a number of statements from a 1956 report on an early draft of the 

New York Convention as follows: 
Since the term ‘legal persons’ includes States, the draft convention seems admittedly to cover arbitral 

wards [sic] made in their favour or against them in cases of disputes with subjects of private law. 
Nevertheless, it would be desirable to provide expressly that the convention is also applicable in cases 

in which corporate bodies under public law, and particularly States, in their capacity as entities having 
rights and duties under private law, have entered into an arbitration convention for the purpose of the 

settlement of disputes25 

  
The majority decision also noted that the same report equally contains another statement from the Society of 

Comparative Legislation supporting their view as follows:  
The following words should be added after the words ‘persons whether physical or legal’ at the end of 

paragraph 1: the expression to include States, public bodies and undertakings (collectivites publiques), 
public establishments and establishments serving the public interest, on the condition that the said 

differences arose out of a commercial contract or a private business operation (acte de gestion privee).26 
 

The above excerpts of the report by the Secretary General are not included in the final text of the New York Convention. 
The statement from the Society of Comparative Legislation above is qualified by the condition that States, public bodies 

and undertakings (collectivites publiques), public establishments and establishments serving the public interest as 
mentioned in the statement can only qualify as a ‘person’ if the differences arose out of a commercial contract or a 

private business operation. This suggests that States only qualify as ‘persons’ for the purposes of the New York 
Convention only for their private and commercial acts and never for their sovereign acts. 

 
As can be seen, the travaux preparatoires is not conclusive on the question whether ‘person’ in the New York 

Convention includes a State in its sovereign capacity, but there seems to be more compelling evidence that the general 
intendment would be to exclude States acting in their sovereign capacity which is governed by public international law. 

The importance of travaux preparatoires in interpreting a convention cannot be neglected because it offers clues on the 
general intendment behind the making of the convention. Courts have frequently relied on it for treaty interpretation 

even as can be seen in this case. 
 

4. Analytical Overview of the Majority Decision and the Dissenting View  
For a start, the arbitration in this case was held under the China-Nigeria BIT. Nigeria as a sovereign did not deal directly 

with Zhongshan even though it undertook to protect investments by Chinese companies under the BIT. In this regard, 
this dispute arose primarily from the breach of Nigeria’s treaty obligation to China under the China-Nigeria BIT to 

protect Chinese investors in Nigeria. This primarily falls within the realm of public international law. So, the primary 
question to be considered in this case is whether a dispute between two sovereigns which is governed by public 

international law falls under the purview of New York Convention. Again. Another question is whether the New York 

                                                             
21 Ibid, p. 7. 
22 U.N. Secretary-General, Recognition and Enforcement of Foreign Arbitral Awards, at annex 1, 8-9, U.N. Doc. E/2822 (Jan. 
31, 1956) (Secretary-General Report).  
23 U.N. Conf. on Int’l Com. Arb., Summary Record of the Sixteenth Meeting, at 5, U.N. Doc. E/Conf.26/SR.16 (June 3, 1958). 
24 U.N. Conf. on Int’l Com. Arb., Summary Record of the Second Meeting, at 8, U.N. Doc. E/CONF.26/SR. 2 (May 21, 1958). 
25 Report by the Secretary-General on the Recognition and Enforcement of Foreign Arbitral Awards, at Annex I, II, U.N. Doc. 
E/2822 (Jan. 31, 1956). 
26 Ibid, Id at Annex II, 9; see id at Annex II, 10. 



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Convention operates to exclude immunity for the sovereign acts of a State. The answers to both questions should be in 
the negative. 

 
The dissenting view in this case is more compelling in the above regards. The case has to be viewed as springing from 

an alleged violation of treaty obligation Nigeria owes to China. This cannot be pushed to the extent of stripping Nigeria 
of her sovereign rights over a third party which Nigeria did not directly deal with. Again, immunity is a different subject-

matter that is treated separately in its peculiar category. Therefore, it will be incongruous to side-step the immunity of 
a State for sovereign acts under the New York Convention.  

  
Judge Katsas who gave the dissenting view also made a number of references to other commentaries to support his 

dissenting view. He referred to the Restatement (Third) of the Foreign Relations Law of the United States27, which states 
that ‘Ordinarily, arbitration of a controversy of a public international law character, such as … a dispute about the 

interpretation of or performance under an international agreement…, is not subject to the New York Convention…’ He 

also referred to the International Chamber of Commerce’s Guide to the Interpretation of the 1958 New York Convention: 
A Handbook for Judges28 which states that ‘The expression of ‘persons, whether physical of legal’ in Article 1 (1) of 

the Convention is generally deemed to include public law entities entering into commercial contracts with private 
persons. Courts … frequently invoke the distinction between acta jure gestionis… and acta jure imperii…’  

 
Finally, Judge Katsas referred to the opinion of Sornarajah to the effect that ‘The New York Convention was not 

designed for enforcement of arbitral awards against state parties…The fact that a dispute was caused by a sovereign act, 
usually an act of nationalization, makes enforcement under the Convention highly unlikely.’29 

 
However, another author, Berg, offered a very instructive opinion on the meaning of ‘persons’ used in Article 1 (1) of 

the New York Convention. He stated thus: 
It is generally accepted that the expression also embraces persons under public law. The Convention is 

frequently applied to States and State agencies. In this field, the defence of sovereign immunity against 
recognition of the arbitration agreement and enforcement of the arbitral award is virtually always 

rejected on the basis of theories such as restrictive immunity, the waiver of immunity, the distinction 
between acta de jure gestionis and acta de jure imperii, the reliance on pacta sunt servanda and the 

creation of an ordre public reellement international.30 
 

Even though Berg opined that ‘persons’ under the New York Convention includes persons under public law, it is 
instructive to note here that Berg noted the distinction between acta jure gestionis and acta jure imperii as one of the 

things to be considered in deciding whether or not to uphold the defence of sovereign immunity on the question of 
whether the word ‘persons’ under the New York Convention includes a State. Under the relative immunity theory, it is 

only for the commercial acts of a State (acta jure gestionis) that an immunity of a state can be held inapplicable and 
never for its sovereign acts (acta jure imperii). This, therefore, inexorably implies that the distinction between acta jure 

gestionis and acta jure imperii definitely has a bearing on the consideration of the definition of ‘persons’ under the New 
York Convention as it affects a State. 

   

5. Conclusion 
 This work traced the background of the case between the Chinese company Zhongshan and Nigeria for which Nigeria 

was denied immunity plea by the US Court of Appeals for the District of Columbia Circuit. The primary issue of 
controversy in this case which led to a split decision is whether the definition of ‘persons’ in the New York Convention 

includes a State both for its sovereign acts and its private act. This was fully discussed in this work. This study found 
that the New York Convention does not define the ‘persons’ used in Article 1 (1) thereof. It was also found that even 

though the New York Convention does not define the word ‘persons’, there is a consensus of opinion that ‘persons’ 
under the New York Convention includes a State for its private acts, but there is no such consensus whether it includes 

a State for its sovereign act. While the majority decision in Zhongshan Fucheng Industrial Investment Co. Ltd v Federal 
Republic of Nigeria does not draw such distinction between the private and sovereign acts of a State in treating a State 

as a ‘person’ under the New York Convention, the dissenting view holds that such a distinction exists and that immunity 
defence should avail a State for its sovereign act. This work found the dissenting view more compelling considering, 

most especially, that the principle of sovereign immunity covers the sovereign acts of a State. It was further found that 
except where a State consents, the sovereign acts of a State generally enjoy sovereign immunity, but this is not so for 

its commercial acts. It is therefore recommended that the New York Convention should be amended to include a clause 
that should specifically define ‘persons’ as natural and juridical persons, including a State only when acting in private 

or commercial capacity. 
   

 

 

                                                             
27 Part IV. 5.A intro. note (Am.L.Inst. 1987) Third Restatement, 487 comt, f. 
28 85 (Int’l Council for Comm. Arbitration 2011). 
29 M. Sornarajah, ‘The Settlement of Foreign Investment Disputes’ (2000), 309-10.  
30 Hanotiau & van den Berg, ‘The New York Convention of 1958: An Overview’ (Yearbook Vol. XXVIII 2003) pp 4-5. 


