UNITED NATIONS PUBLICATION
Sales No. E.08.V.4
ISBN 978-92-1-133773-0
|
Contents
Resolutions adopted by the General Assembly
General Assembly Resolution 40/72 (11 December
1985)
General Assembly Resolution 61/33 (4 December
2006)
Part One
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Chapter I. General provisions.
Article 1. Scope of application
Article 2. Definitions and rules of interpretation
Article 2A. International origin and general principles
Article 3. Receipt of written communications
Article 4. Waiver of right to object
Article 5. Extent of court intervention
Article 6. Court or other authority for certain
functions of arbitration assistance and supervision
Chapter II. Arbitration agreement
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Option II Definition of arbitration
agreement
Article 8. Arbitration agreement and substantive
claim before court
Article 9. Arbitration agreement and interim
measures by court
Chapter III. Composition of arbitral tribunal
Article 10. Number of arbitrators
Article 11. Appointment of arbitrators
Article 12. Grounds for challenge
Article 13. Challenge procedure
Article 14. Failure or impossibility to act
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Chapter IV. Jurisdiction of arbitral tribunal
Article 16. Competence of arbitral tribunal to
rule on its jurisdiction
Chapter IV A. Interim measures and preliminary
orders
Section 1. Interim measures
Article 17. Power of arbitral tribunal to
order interim measures
Article 17 A. Conditions for granting interim
measures
Section 2. Preliminary orders
Article 17 B. Applications for preliminary orders
and conditions for granting preliminary orders
Article 17 C. Specific regime for preliminary
orders
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Article 17 D. Modification, suspension,
termination
Article 17 E. Provision of security
Article 17 F. Disclosure
Article 17 G. Costs and damages
Section 4. Recognition and enforcement of interim
measures
Article 17 H. Recognition and enforcement
Article 17 I. Grounds for refusing recognition
or enforcement
Section 5. Court-ordered interim measures
Article 17 J. Court-ordered interim measures
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Article 18. Equal treatment of parties
Article 19. Determination of rules of procedure
Article 20. Place of arbitration
Article 21. Commencement of arbitral proceedings
Article 22. Language
Article 23. Statements of claim and defence
Article 24. Hearings and written proceedings
Article 25. Default of a party
Article 26. Expert appointed by arbitral tribunal
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Chapter VI. Making of award and termination of
proceedings
Article 28. Rules applicable to substance of dispute
Article 29. Decision-making by panel of arbitrators
Article 30. Settlement
Article 31. Form and contents of award
Article 32. Termination of proceedings
Article 33. Correction and interpretation of award;
additional award
Chapter VII. Recourse against award
Article 34. Application for setting aside as exclusive
recourse against arbitral award
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Article 35. Recognition and enforcement
Article 36. Grounds for refusing recognition
or enforcement
Part Two
EXPLANATORY NOTE BY
THE UNCITRAL SECRETARIAT ON THE MODEL LAW ON INTERNATIONAL COMMERCIAL
ARBITRATION
A. Background to the Model Law
1. Inadequacy of domestic laws
2. Disparity between national laws
B. Salient features of the Model Law
1. Special procedural regime for international
commercial arbitration
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3. Composition of arbitral tribunal
4. Jurisdiction of arbitral tribunal
5. Conduct of arbitral proceedings
6. Making of award and termination of proceedings
7. Recourse against award
8. Recognition and enforcement of awards
Part Three
“RECOMMENDATION
REGARDING THE INTERPRETATION OF ARTICLE II, PARAGRAPH 2, AND ARTICLE VII,
PARAGRAPH 1, OF THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS, DONE IN NEW YORK, 10 JUNE 1958”, ADOPTED BY THE UNITED NATIONS
COMMISSION ON INTERNATIONAL TRADE LAW ON 7 JULY 2006 AT ITS THIRTY-NINTH
SESSION
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ADOPTED BY THE
GENERAL ASSEMBLY
40/72. Model Law on
International Commercial Arbitration of the United Nations Commission on International
Trade Law
The General Assembly,
Recognizing the value of arbitration as a method
of settling disputes arising in international commercial relations,
Convinced that the establishment of a model law
on arbitration that is accept- able to States with different legal, social and economic
systems contributes to the development of harmonious international economic relations,
Noting that the Model Law on International Commercial
Arbitration1 was adopted by the United Nations Commission
on International Trade Law at its eighteenth session, after due deliberation and
extensive consultation with arbitral institutions and individual experts on international
commercial arbitration,
Convinced that the Model Law, together with the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards2
and the Arbitration Rules of the United Nations Commission on International Trade
Law3
recommended by the General Assembly in its resolution 31/98 of 15 December 1976,
significantly contributes to the establishment of a unified legal framework for
the fair and efficient settlement of disputes arising in international commercial
relations,
1. Requests the Secretary-General to transmit
the text of the Model Law on International Commercial Arbitration of the United
Nations Commission on Inter- national Trade Law, together with the travaux préparatoires
from the eighteenth session of the Commission, to Governments and to arbitral institutions
and other interested bodies, such as chambers of commerce;
2. Recommends that all States give due
consideration to the Model Law on International Commercial Arbitration, in view
of the desirability of uniformity of the law of arbitral procedures and the specific
needs of international commercial arbitration practice.
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11 December 1985
[on the report of the
Sixth Committee (A/61/453)]
61/33. Revised articles of the Model Law on International
Commercial Arbitration of the United Nations Commission on International Trade Law,
and the recommendation regarding the interpretation of article II, paragraph 2,
and article VII, paragraph 1, of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958
The General Assembly,
Recognizing the value of arbitration as a method
of settling disputes arising in the context of international commercial relations,
Recalling its resolution 40/72 of 11 December
1985 regarding the Model Law on International Commercial Arbitration,
Recognizing the need for provisions in the Model Law
to conform to current practices in international trade and modern means of
contracting with regard to the form of the arbitration agreement and the granting
of interim measures,
Believing that revised articles of the Model
Law on the form of the arbitration agreement and interim measures reflecting
those current practices will significantly enhance the operation of the Model Law,
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Believing that, in connection with the modernization
of articles of the Model Law, the promotion of a uniform interpretation and application
of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, done at New York, 10 June 1958,2 is particularly timely,
1. Expresses its appreciation to the United
Nations Commission on International Trade Law for formulating and adopting the
revised articles of its Model Law on International Commercial Arbitration on the
form of the arbitration agreement and interim measures, the text of which is
contained in annex I to the report of the United Nations Commission on International
Trade Law on the work of its thirty- ninth session, 3 and recommends
that all States give favourable consideration to the enactment of the revised articles
of the Model Law, or the revised Model Law on International Commercial Arbitration
of the United Nations Commission on International Trade Law, when they enact or
revise their laws, in view of the desirability of uniformity of the law of arbitral
procedures and the specific needs of international commercial arbitration practice;
2. Also expresses its appreciation to the
United Nations Commission on International Trade Law for formulating and
adopting the recommendation regarding the interpretation of article II, paragraph
2, and article VII, paragraph 1, of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958, 2
the text of which is contained in annex II to the report of the United Nations Commission
on International Trade Law on the work of its thirty-ninth session; 3
3. Requests the Secretary-General to
make all efforts to ensure that the revised articles of the Model Law and the recommendation
become generally known and available.
64th plenary meeting
4 December 2006
Part One
UNCITRAL
MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
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(As adopted by the United
Nations Commission on International Trade Law on 21 June 1985, and as amended by
the United Nations Commission on International Trade Law on 7 July 2006)
Chapter I.
GENERAL
PROVISIONS
Article 1. Scope of application 1
(1) This Law applies to international commercial
2 arbitration, subject to any agreement in force between this State and
any other State or States.
(2) The provisions of this Law, except articles
8, 9, 17 H, 17 I, 17 J, 35 and 36, apply only if the place of arbitration is in
the territory of this State.
(Article 1(2) has been amended by the Commission
at its thirty-ninth session, in 2006)
(3) An arbitration is international if:
(a) the parties to an arbitration agreement
have, at the time of the conclusion of that agreement, their places of business
in different States; or
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(i) the place of arbitration if determined in,
or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the
obligations of the commercial relationship is to be performed or the place with
which the subject-matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the
subject matter of the arbitration agreement relates to more than one country.
(4) For the purposes of paragraph (3) of this
article:
(a) if a party has more than one place of
business, the place of business is that which has the closest relationship to
the arbitration agreement;
(b) if a party does not have a place of business,
reference is to be made to his habitual residence.
(5) This Law shall not affect any other law
of this State by virtue of which certain disputes may not be submitted to
arbitration or may be submitted to arbitration only according to provisions other
than those of this Law.
Article 2. Definitions
and rules of interpretation
For the purposes of this Law:
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(b) “arbitral tribunal” means a sole arbitrator
or a panel of arbitrators;
(c) “court” means a body or organ of the
judicial system of a State;
(d) where a provision of this Law, except
article 28, leaves the parties free to determine a certain issue, such freedom includes
the right of the parties to authorize a third party, including an institution, to
make that determination;
(e) where a provision of this Law refers to the fact
that the parties have agreed or that they may agree or in any other way refers
to an agreement of the parties, such agreement includes any arbitration rules referred
to in that agreement;
(f) where a provision of this Law, other than in
articles 25(a) and 32(2) (a), refers to a claim, it also applies to a
counter-claim, and where it refers to a defence, it also applies to a defence to
such counter-claim.
Article 2 A. International
origin and general principles
(As adopted by the Commission at its thirty-ninth
session, in 2006)
(1) In the interpretation of this Law, regard
is to be had to its international origin and to the need to promote uniformity in
its application and the observance of good faith.
(2) Questions concerning matters governed by this
Law which are not expressly settled in it are to be settled in conformity with the
general principles on which this Law is based.
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(1) Unless otherwise agreed by the parties:
(a) any written communication is deemed to have
been received if it is delivered to the addressee personally or if it is delivered
at his place of business, habitual residence or mailing address; if none of
these can be found after making a reasonable inquiry, a written communication is
deemed to have been received if it is sent to the addressee’s last-known place
of business, habitual residence or mailing address by registered letter or any
other means which provides a record of the attempt to deliver it;
(b) the communication is deemed to have been received
on the day it is so delivered.
(2) The provisions of this article do not
apply to communications in court proceedings.
Article 4. Waiver of right
to object
A party who knows that any provision of this Law
from which the parties may derogate or any requirement under the arbitration agreement
has not been complied with and yet proceeds with the arbitration without
stating his objection to such non-compliance without undue delay or, if a
time-limit is provided therefor, within such period of time, shall be deemed to
have waived his right to object.
Article 5. Extent of court
intervention
In matters governed by this Law, no court shall
intervene except where so provided in this Law.
Article 6. Court or other
authority for certain functions of arbitration assistance and supervision
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Chapter II.
ARBITRATION
AGREEMENT
Option I
Article 7. Definition
and form of arbitration agreement
(As adopted by the Commission at its thirty-ninth
session, in 2006)
(1) “Arbitration agreement” is an agreement by
the parties to submit to arbitration all or certain disputes which have arisen or
which may arise between them in respect of a defined legal relationship,
whether contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if
its content is recorded in any form, whether or not the arbitration agreement or
contract has been concluded orally, by conduct, or by other means.
(4) The requirement that an arbitration
agreement be in writing is met by an electronic communication if the information
contained therein is accessible so as to be useable for subsequent reference;
“electronic communication” means any communication that the parties make by means
of data messages; “data message” means information generated, sent, received or
stored by electronic, magnetic, optical or similar means, including, but not limited
to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.
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(6) The reference in a contract to any document
containing an arbitration clause constitutes an arbitration agreement in
writing, provided that the reference is such as to make that clause part of the
contract.
Option II
Article 7. Definition
of arbitration agreement
(As adopted by the Commission at its thirty-ninth
session, in 2006)
“Arbitration agreement” is an agreement by
the parties to submit to arbitration all or certain disputes which have arisen or
which may arise between them in respect of a defined legal relationship,
whether contractual or not.
Article 8. Arbitration
agreement and substantive claim before court
(1) A court before which an action is brought
in a matter which is the subject of an arbitration agreement shall, if a party
so requests not later than when submitting his first statement on the substance
of the dispute, refer the parties to arbitration unless it finds that the
agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1)
of this article has been brought, arbitral proceedings may nevertheless be
commenced or continued, and an award may be made, while the issue is pending before
the court.
Article 9. Arbitration
agreement and interim measures by court
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Chapter III.
COMPOSITION
OF ARBITRAL TRIBUNAL
Article 10. Number of
arbitrators
(1) The parties are free to determine the
number of arbitrators.
(2) Failing such determination, the number of
arbitrators shall be three.
Article 11. Appointment
of arbitrators
(1) No person shall be precluded by reason of
his nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a
procedure of appointing the arbitrator or arbitrators, subject to the provisions
of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
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(b) in an arbitration with a sole arbitrator, if
the parties are unable to agree on the arbitrator, he shall be appointed, upon request
of a party, by the court or other authority specified in article 6.
(4) Where, under an appointment procedure
agreed upon by the parties,
(a) a party fails to act as required under such procedure,
or
(b) the parties, or two arbitrators, are unable to
reach an agreement expected of them under such procedure, or
(c) a third party, including an institution,
fails to perform any function entrusted to it under such procedure,
any party may request the court or other authority
specified in article 6 to take the necessary measure, unless the agreement on the
appointment procedure provides other means for securing the appointment.
(5) A decision on a matter entrusted by
paragraph (3) or (4) of this article to the court or other authority specified in
article 6 shall be subject to no appeal. The court or other authority, in appointing
an arbitrator, shall have due regard to any qualifications required of the
arbitrator by the agreement of the parties and to such considerations as are
likely to secure the appointment of an independent and impartial arbitrator and,
in the case of a sole or third arbitrator, shall take into account as well the
advisability of appointing an arbitrator of a nationality other than those of the
parties.
Article 12. Grounds for
challenge
(1) When a person is approached in connection
with his possible appointment as an arbitrator, he shall disclose any
circumstances likely to give rise to justifiable doubts as to his impartiality or
independence. An arbitrator, from the time of his appointment and throughout the
arbitral proceedings, shall without delay disclose any such circumstances to the
parties unless they have already been informed of them by him.
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Article 13. Challenge
procedure
(1) The parties are free to agree on a
procedure for challenging an arbitrator, subject to the provisions of paragraph
(3) of this article.
(2) Failing such agreement, a party who
intends to challenge an arbitrator shall, within fifteen days after becoming aware
of the constitution of the arbitral tribunal or after becoming aware of any
circumstance referred to in article 12(2), send a written statement of the reasons
for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws
from his office or the other party agrees to the challenge, the arbitral tribunal
shall decide on the challenge.
(3) If a challenge under any procedure agreed
upon by the parties or under the procedure of paragraph (2) of this article is not
successful, the challenging party may request, within thirty days after having
received notice of the decision rejecting the challenge, the court or other authority
specified in article 6 to decide on the challenge, which decision shall be subject
to no appeal; while such a request is pending, the arbitral tribunal, including
the challenged arbitrator, may continue the arbitral proceedings and make an
award.
Article 14. Failure or
impossibility to act
(1) If an arbitrator becomes de jure
or de facto unable to perform his functions or for other reasons fails to
act without undue delay, his mandate terminates if he withdraws from his office
or if the parties agree on the termination. Otherwise, if a controversy remains
concerning any of these grounds, any party may request the court or other authority
specified in article 6 to decide on the termination of the mandate, which
decision shall be subject to no appeal.
(2) If, under this article or article 13(2), an
arbitrator withdraws from his office or a party agrees to the termination of the
mandate of an arbitrator, this does not imply acceptance of the validity of any
ground referred to in this article or article 12(2).
Article 15. Appointment
of substitute arbitrator
Where the mandate of an arbitrator terminates
under article 13 or 14 or because of his withdrawal from office for any other reason
or because of the revocation of his mandate by agreement of the parties or in any
other case of termination of his mandate, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of the
arbitrator being replaced.
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JURISDICTION
OF ARBITRAL TRIBUNAL
Article 16. Competence
of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to the existence or
validity of the arbitration agreement. For that purpose, an arbitration clause
which forms part of a contract shall be treated as an agreement independent of
the other terms of the con- tract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the invalidity of the
arbitration clause.
(2) A plea that the arbitral tribunal does
not have jurisdiction shall be raised not later than the submission of the statement
of defence. A party is not precluded from raising such a plea by the fact that he
has appointed, or participated in the appointment of, an arbitrator. A plea
that the arbitral tribunal is exceeding the scope of its authority shall be raised
as soon as the matter alleged to be beyond the scope of its authority is raised
during the arbitral proceedings. The arbitral tribunal may, in either case, admit
a later plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea
referred to in paragraph (2) of this article either as a preliminary question
or in an award on the merits. If the arbitral tribunal rules as a preliminary question
that it has jurisdiction, any party may request, within thirty days after having
received notice of that ruling, the court specified in article 6 to decide the
matter, which decision shall be subject to no appeal; while such a request is pending,
the arbitral tribunal may continue the arbitral proceedings and make an award.
Chapter IV A.
INTERIM
MEASURES AND PRELIMINARY ORDERS
(As adopted by the Commission
at its thirty-ninth session, in 2006)
Section 1. Interim measures
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(1) Unless otherwise agreed by the parties,
the arbitral tribunal may, at the request of a party, grant interim measures.
(2) An interim measure is any temporary
measure, whether in the form of an award or in another form, by which, at any
time prior to the issuance of the award by which the dispute is finally
decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination
of the dispute;
(b) Take action that would prevent, or refrain
from taking action that is likely to cause, current or imminent harm or prejudice
to the arbitral process itself;
(c) Provide a means of preserving assets out of which
a subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and
material to the resolu- tion of the dispute.
Article 17 A. Conditions
for granting interim measures
(1) The party requesting an interim measure
under article 17(2)(a), (b) and (c) shall satisfy the arbitral tribunal that:
(a) Harm not adequately reparable by an award
of damages is likely to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the party against whom
the measure is directed if the measure is granted; and
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(2) With regard to a request for an interim
measure under article 17(2)(d), the requirements in paragraphs (1)(a) and (b)
of this article shall apply only to the extent the arbitral tribunal considers appropriate.
Section 2. Preliminary
orders
Article 17 B. Applications
for preliminary orders and conditions for granting preliminary orders
(1) Unless otherwise agreed by the parties, a
party may, without notice to any other party, make a request for an interim measure
together with an application for a preliminary order directing a party not to frustrate
the purpose of the interim measure requested.
(2) The arbitral tribunal may grant a
preliminary order provided it considers that prior disclosure of the request for
the interim measure to the party against whom it is directed risks frustrating
the purpose of the measure.
(3) The conditions defined under article 17A apply
to any preliminary order, provided that the harm to be assessed under article
17A(1)(a), is the harm likely to result from the order being granted or not.
Article 17 C. Specific
regime for preliminary orders
(1) Immediately after the arbitral tribunal has
made a determination in respect of an application for a preliminary order, the
arbitral tribunal shall give notice to all parties of the request for the
interim measure, the application for the preliminary order, the preliminary
order, if any, and all other communications, including by indicating the
content of any oral communication, between any party and the arbitral tribunal in
relation thereto.
(2) At the same time, the arbitral tribunal
shall give an opportunity to any party against whom a preliminary order is
directed to present its case at the earliest practicable time.
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(4) A preliminary order shall expire after twenty
days from the date on which it was issued by the arbitral tribunal. However, the
arbitral tribunal may issue an interim measure adopting or modifying the
preliminary order, after the party against whom the preliminary order is
directed has been given notice and an opportunity to present its case.
(5) A preliminary order shall be binding on the
parties but shall not be subject to enforcement by a court. Such a preliminary order
does not constitute an award.
Section 3. Provisions
applicable to interim measures and preliminary orders
Article 17 D. Modification,
suspension, termination
The arbitral tribunal may modify, suspend or terminate
an interim measure or a preliminary order it has granted, upon application of
any party or, in exceptional circumstances and upon prior notice to the
parties, on the arbitral tribunal’s own initiative.
Article 17 E. Provision
of security
(1) The arbitral tribunal may require the party
requesting an interim measure to provide appropriate security in connection with
the measure.
(2) The arbitral tribunal shall require the
party applying for a preliminary order to provide security in connection with the
order unless the arbitral tribunal considers it inappropriate or unnecessary to
do so.
Article 17 F. Disclosure
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(2) The party applying for a preliminary
order shall disclose to the arbitral tribunal all circumstances that are likely
to be relevant to the arbitral tribunal’s determination whether to grant or
maintain the order, and such obligation shall continue until the party against
whom the order has been requested has had an opportunity to present its case.
Thereafter, paragraph (1) of this article shall apply.
Article 17 G. Costs and
damages
The party requesting an interim measure or
applying for a preliminary order shall be liable for any costs and damages caused
by the measure or the order to any party if the arbitral tribunal later determines
that, in the circumstances, the measure or the order should not have been
granted. The arbitral tribunal may award such costs and damages at any point
during the proceedings.
Section 4. Recognition
and enforcement of interim measures
Article 17 H. Recognition
and enforcement
(1) An interim measure issued by an arbitral tribunal
shall be recognized as binding and, unless otherwise provided by the arbitral
tribunal, enforced upon application to the competent court, irrespective of the
country in which it was issued, subject to the provisions of article 17 I.
(2) The party who is seeking or has obtained recognition
or enforcement of an interim measure shall promptly inform the court of any termination,
suspension or modification of that interim measure.
(3) The court of the State where recognition
or enforcement is sought may, if it considers it proper, order the requesting party
to provide appropriate security if the arbitral tribunal has not already made a
determination with respect to security or where such a decision is necessary to
protect the rights of third parties.
Article 17 I. Grounds
for refusing recognition or enforcement 3
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(a) At the request of the party against whom
it is invoked if the court is satisfied that:
(i) Such refusal is warranted on the grounds set
forth in article 36(1)(a)(i), (ii), (iii) or (iv); or
(ii) The arbitral tribunal’s decision with
respect to the provision of security in connection with the interim measure issued
by the arbitral tribunal has not been complied with; or
(iii) The interim measure has been terminated
or suspended by the arbitral tribunal or, where so empowered, by the court of the
State in which the arbitration takes place or under the law of which that interim
measure was granted; or
(b) If the court finds that:
(i) The interim measure is incompatible with the
powers conferred upon the court unless the court decides to reformulate the
interim measure to the extent necessary to adapt it to its own powers and procedures
for the purposes of enforcing that interim measure and without modifying its
substance; or
(ii) Any of the grounds set forth in article 36(1)(b)(i)
or (ii), apply to the recognition and enforcement of the interim measure.
(2) Any determination made by the court on any
ground in paragraph (1) of this article shall be effective only for the purposes
of the application to recognize and enforce the interim measure. The court
where recognition or enforcement is sought shall not, in making that determination,
undertake a review of the substance of the interim measure.
Section 5. Court-ordered
interim measures
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A court shall have the same power of issuing an
interim measure in relation to arbitration proceedings, irrespective of whether
their place is in the territory of this State, as it has in relation to
proceedings in courts. The court shall exercise such power in accordance with its
own procedures in consideration of the specific features of international arbitration.
Chapter V.
CONDUCT
OF ARBITRAL PROCEEDINGS
Article 18. Equal treatment
of parties
The parties shall be treated with equality and
each party shall be given a full opportunity of presenting his case.
Article 19. Determination
of rules of procedure
(1) Subject to the provisions of this Law,
the parties are free to agree on the procedure to be followed by the arbitral
tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral
tribunal may, subject to the provisions of this Law, conduct the arbitration in
such manner as it considers appropriate. The power conferred upon the arbitral tribunal
includes the power to determine the admissibility, relevance, materiality and weight
of any evidence.
Article 20. Place of arbitration
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(2) Notwithstanding the provisions of
paragraph (1) of this article, the arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it considers appropriate for consultation
among its members, for hearing witnesses, experts or the parties, or for inspection
of goods, other property or documents.
Article 21. Commencement
of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral
proceedings in respect of a particular dispute commence on the date on which a request
for that dispute to be referred to arbitration is received by the respondent.
Article 22. Language
(1) The parties are free to agree on the language
or languages to be used in the arbitral proceedings. Failing such agreement,
the arbitral tribunal shall determine the language or languages to be used in the
proceedings. This agreement or determination, unless otherwise specified therein,
shall apply to any written statement by a party, any hearing and any award,
decision or other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any
documentary evidence shall be accompanied by a translation into the language or
languages agreed upon by the parties or determined by the arbitral tribunal.
Article 23. Statements
of claim and defence
(1) Within the period of time agreed by the parties
or determined by the arbitral tribunal, the claimant shall state the facts supporting
his claim, the points at issue and the relief or remedy sought, and the respondent
shall state his defence in respect of these particulars, unless the parties
have other- wise agreed as to the required elements of such statements. The
parties may submit with their statements all documents they consider to be relevant
or may add a reference to the documents or other evidence they will submit.
(2) Unless otherwise agreed by the parties, either
party may amend or supplement his claim or defence during the course of the arbitral
proceedings, unless the arbitral tribunal considers it inappropriate to allow such
amendment having regard to the delay in making it.
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(1) Subject to any contrary agreement by the parties,
the arbitral tribunal shall decide whether to hold oral hearings for the presentation
of evidence or for oral argument, or whether the proceedings shall be conducted
on the basis of documents and other materials. However, unless the parties have
agreed that no hearings shall be held, the arbitral tribunal shall hold such
hearings at an appropriate stage of the proceedings, if so requested by a
party.
(2) The parties shall be given sufficient
advance notice of any hearing and of any meeting of the arbitral tribunal for the
purposes of inspection of goods, other property or documents.
(3) All statements, documents or other
information supplied to the arbitral tribunal by one party shall be communicated
to the other party. Also any expert report or evidentiary document on which the
arbitral tribunal may rely in making its decision shall be communicated to the parties.
Article 25. Default of
a party
Unless otherwise agreed by the parties, if, without
showing sufficient cause,
(a) the claimant fails to communicate his statement
of claim in accordance with article 23(1), the arbitral tribunal shall terminate
the proceedings;
(b) the respondent fails to communicate his statement
of defence in accordance with article 23(1), the arbitral tribunal shall
continue the proceed- ings without treating such failure in itself as an
admission of the claimant’s allegations;
(c) any party fails to appear at a hearing or to
produce documentary evidence, the arbitral tribunal may continue the proceedings
and make the award on the evidence before it.
Article 26. Expert appointed
by arbitral tribunal
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(a) may appoint one or more experts to report to
it on specific issues to be determined by the arbitral tribunal;
(b) may require a party to give the expert any
relevant information or to produce, or to provide access to, any relevant
documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties,
if a party so requests or if the arbitral tribunal considers it necessary, the
expert shall, after delivery of his written or oral report, participate in a hearing
where the parties have the opportunity to put questions to him and to present
expert witnesses in order to testify on the points at issue.
Article 27. Court assistance
in taking evidence
The arbitral tribunal or a party with the
approval of the arbitral tribunal may request from a competent court of this State
assistance in taking evidence.
The court may execute the request within its competence
and according to its rules on taking evidence.
Chapter VI.
MAKING
OF AWARD AND TERMINATION OF PROCEEDINGS
Article 28. Rules applicable
to substance of dispute
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(2) Failing any designation by the parties,
the arbitral tribunal shall apply the law determined by the conflict of laws
rules which it considers applicable.
(3) The arbitral tribunal shall decide ex
aequo et bono or as amiable compositeur only if the parties have expressly
authorized it to do so.
(4) In all cases, the arbitral tribunal shall
decide in accordance with the terms of the contract and shall take into account
the usages of the trade applicable to the transaction.
Article 29. Decision-making
by panel of arbitrators
In arbitral proceedings with more than one arbitrator,
any decision of the arbitral tribunal shall be made, unless otherwise agreed by
the parties, by a majority of all its members. However, questions of procedure
may be decided by a presiding arbitrator, if so authorized by the parties or all
members of the arbitral tribunal.
Article 30. Settlement
(1) If, during arbitral proceedings, the
parties settle the dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitral award on agreed
terms.
(2) An award on agreed terms shall be made in
accordance with the provi- sions of article 31 and shall state that it is an
award. Such an award has the same status and effect as any other award on the merits
of the case.
Article 31. Form and contents
of award
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(2) The award shall state the reasons upon which
it is based, unless the parties have agreed that no reasons are to be given or
the award is an award on agreed terms under article 30.
(3) The award shall state its date and the
place of arbitration as determined in accordance with article 20(1). The award shall
be deemed to have been made at that place.
(4) After the award is made, a copy signed by
the arbitrators in accordance with paragraph (1) of this article shall be delivered
to each party.
Article 32. Termination
of proceedings
(1) The arbitral proceedings are terminated
by the final award or by an order of the arbitral tribunal in accordance with
paragraph (2) of this article.
(2) The arbitral tribunal shall issue an
order for the termination of the arbitral proceedings when:
(a) the claimant withdraws his claim, unless the
respondent objects thereto and the arbitral tribunal recognizes a legitimate interest
on his part in obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the
continuation of the proceedings has for any other reason become unnecessary or impossible.
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Article 33. Correction
and interpretation of award; additional award
(1) Within thirty days of receipt of the award,
unless another period of time has been agreed upon by the parties:
(a) a party, with notice to the other party, may
request the arbitral tribunal to correct in the award any errors in computation,
any clerical or typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with
notice to the other party, may request the arbitral tribunal to give an
interpretation of a specific point or part of the award.
If the arbitral tribunal considers the
request to be justified, it shall make the correction or give the interpretation
within thirty days of receipt of the request. The interpretation shall form
part of the award.
(2) The arbitral tribunal may correct any error
of the type referred to in paragraph (1)(a) of this article on its own
initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a
party, with notice to the other party, may request, within thirty days of receipt
of the award, the arbitral tribunal to make an additional award as to claims presented
in the arbitral proceedings but omitted from the award. If the arbitral tribunal
considers the request to be justified, it shall make the additional award within
sixty days.
(4) The arbitral tribunal may extend, if
necessary, the period of time within which it shall make a correction,
interpretation or an additional award under paragraph (1) or (3) of this article.
(5) The provisions of article 31 shall apply
to a correction or interpretation of the award or to an additional award.
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RECOURSE
AGAINST AWARD
Article 34. Application
for setting aside as exclusive recourse against arbitral award
(1) Recourse to a court against an arbitral
award may be made only by an application for setting aside in accordance with paragraphs
(2) and (3) of this article.
(2) An arbitral award may be set aside by the
court specified in article 6 only if:
(a) the party making the application furnishes proof
that:
(i) a party to the arbitration agreement referred
to in article 7 was 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 this State; or
(ii) the party making the application was not
given proper notice of the appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not
contemplated by or not fall- ing within the terms of the submission to
arbitration, or contains decisions on matters beyond the scope of the submission
to arbitration, provided that, if the decisions on matters submitted to arbitration
can be separated from those not so submitted, only that part of the award which
contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal
or the arbitral procedure was not in accordance with the agreement of the
parties, unless such agreement was in conflict with a provision of this Law
from which the parties cannot derogate, or, failing such agreement, was not in
accordance with this Law; or
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(i) the subject-matter of the dispute is not
capable of settlement by arbitration under the law of this State; or
(ii) the award is in conflict with the public
policy of this State.
(3) An application for setting aside may not be
made after three months have elapsed from the date on which the party making
that application had received the award or, if a request had been made under article
33, from the date on which that request had been disposed of by the arbitral
tribunal.
(4) The court, when asked to set aside an award,
may, where appropriate and so requested by a party, suspend the setting aside proceedings
for a period of time determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take such other action as in
the arbitral tribunal’s opinion will eliminate the grounds for setting aside.
Chapter VIII.
RECOGNITION
AND ENFORCEMENT OF AWARDS
Article 35. Recognition
and enforcement
(1) An arbitral award, irrespective of the country
in which it was made, shall be recognized as binding and, upon application in writing
to the competent court, shall be enforced subject to the provisions of this article
and of article 36.
(2) The party relying on an award or applying
for its enforcement shall supply the original award or a copy thereof. If the
award is not made in an official language of this State, the court may request the
party to supply a translation thereof into such language. 4
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Article 36. Grounds for
refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral
award, irrespective of the country in which it was made, may be refused only:
(a) at the request of the party against whom it
is invoked, if that party furnishes to the competent court where recognition or
enforcement is sought proof that:
(i) a party to the arbitration agreement referred
to in article 7 was 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
(ii) the party against whom the award is
invoked was not given proper notice of the appointment of an arbitrator or of the
arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute 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,
provided that, if the decisions on matters submitted to arbitration can be
separated from those not so submitted, that part of the award which contains
decisions on matters submitted to arbitration may be recognized and enforced; or
(iv) the composition of the arbitral tribunal
or the arbitral procedure was not in accordance with the agreement of the
parties or, failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
(v) the award has not yet become binding on the
parties or has been set aside or suspended by a court of the country in which,
or under the law of which, that award was made; or
(b) if the court finds that:
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(ii) the recognition or enforcement of the award
would be contrary to the public policy of this State.
(2) If an application for setting aside or
suspension of an award has been made to a court referred to in paragraph (1)(a)(v)
of this article, the court where recognition or enforcement is sought may, if it
considers it proper, adjourn its decision and may also, on the application of
the party claiming recognition or enforcement of the award, order the other party
to provide appropriate security.
Part Two
EXPLANATORY
NOTE BY THE UNCITRAL SECRETARIAT ON THE 1985 MODEL LAW ON INTERNATIONAL
COMMERCIAL ARBITRATION AS AMENDED IN 2006 1
1. The UNCITRAL Model Law on International Commercial
Arbitration (“the Model Law”) was adopted by the United Nations Commission on International
Trade Law (UNCITRAL) on 21 June 1985, at the end of the eighteenth session of
the Commission. The General Assembly, in its resolution 40/72 of 11 December 1985,
recommended “that all States give due consideration to the Model Law on
International Commercial Arbitration, in view of the desirability of uniformity
of the law of arbitral procedures and the specific needs of international commercial
arbitration practice”. The Model Law was amended by UNCITRAL on 7 July 2006, at
the thirty-ninth session of the Commission (see below, paragraphs 4, 19, 20,
27, 29 and 53). The General Assembly, in its resolution 61/33 of 4 December 2006,
recommended “that all States give favourable consideration to the enactment of
the revised articles of the UNCITRAL Model Law on International Commercial Arbitration,
or the revised UNCITRAL Model Law on International Commercial Arbitration, when
they enact or revise their laws (…)”.
2. The Model Law constitutes a sound basis for
the desired harmonization and improvement of national laws. It covers all stages
of the arbitral process from the arbitration agreement to the recognition and
enforcement of the arbitral award and reflects a worldwide consensus on the principles
and important issues of international arbitration practice. It is acceptable to
States of all regions and the different legal or economic systems of the world.
Since its adoption by UNCITRAL, the Model Law has come to represent the
accepted international legislative standard for a modern arbitration law and a significant
number of jurisdictions have enacted arbitration legislation based on the Model
Law.
3. The form of a model law was chosen as the vehicle
for harmonization and modernization in view of the flexibility it gives to
States in preparing new Arbitration laws. Notwithstanding that flexibility, and
in order to increase the likelihood of achieving a satisfactory degree of
harmonization, States are encouraged to make as few changes as possible when
incorporating the Model Law into their legal systems. Efforts to minimize
variation from the text adopted by UNCITRAL are also expected to increase the
visibility of harmonization, thus enhancing the confidence of foreign parties,
as the primary users of international arbitration, in the reliability of arbitration
law in the enacting State.
4. The revision of the Model Law adopted in
2006 includes article 2 A, which is designed to facilitate interpretation by reference
to internationally accepted principles and is aimed at promoting a uniform understanding
of the Model Law. Other substantive amendments to the Model Law relate to the form
of the arbitration agreement and to interim measures. The original 1985 version
of the provision on the form of the arbitration agreement (article 7) was
modelled on the language used in article II (2) of the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (“the New
York Convention”). The revision of article 7 is intended to address evolving
practice in international trade and techno- logical developments. The extensive
revision of article 17 on interim measures was considered necessary in light of
the fact that such measures are increasingly relied upon in the practice of international
commercial arbitration. The revision also includes an enforcement regime for such
measures in recognition of the fact that the effectiveness of arbitration
frequently depends upon the possibility of enforcing interim measures. The new
provisions are contained in a new chapter of the Model Law on interim measures
and preliminary orders (chapter IV A).
A. Background to the Model
Law
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1. Inadequacy of domestic laws
6. Recurrent inadequacies to be found in
outdated national laws include provisions that equate the arbitral process with
court litigation and fragmentary provisions that fail to address all relevant substantive
law issues. Even most of those laws that appear to be up-to-date and comprehensive
were drafted with domestic arbitration primarily, if not exclusively, in mind.
While this approach is understandable in view of the fact that even today the
bulk of cases governed by arbitration law would be of a purely domestic nature,
the unfortunate consequence is that traditional local concepts are imposed on international
cases and the needs of modern practice are often not met.
7. The expectations of the parties as
expressed in a chosen set of arbitration rules or a “one-off” arbitration agreement
may be frustrated, especially by mandatory provisions of applicable law.
Unexpected and undesired restrictions found in national laws may prevent the
parties, for example, from submitting future disputes to arbitration, from
selecting the arbitrator freely, or from having the arbitral proceedings
conducted according to agreed rules of procedure and with no more court
involvement than appropriate. Frustration may also ensue from non-mandatory provisions
that may impose undesired requirements on unwary parties who may not think
about the need to provide otherwise when drafting the arbitration agreement. Even
the absence of any legislative provision may cause difficulties simply by leaving
un- answered some of the many procedural issues relevant in arbitration and not
always settled in the arbitration agreement. The Model Law is intended to
reduce the risk of such possible frustration, difficulties or surprise.
2. Disparity between national laws
8. Problems stemming from inadequate arbitration
laws or from the absence of specific legislation governing arbitration are aggravated
by the fact that national laws differ widely. Such differences are a frequent
source of concern in international arbitration, where at least one of the
parties is, and often both parties are, confronted with foreign and unfamiliar
provisions and procedures. Obtaining a full and precise account of the law applicable
to the arbitration is, in such circumstances often expensive, impractical or impossible.
9. Uncertainty about the local law with the inherent
risk of frustration may adversely affect the functioning of the arbitral
process and also impact on the selection of the place of arbitration. Due to such
uncertainty, a party may hesitate or refuse to agree to a place, which for
practical reasons would otherwise be appropriate. The range of places of
arbitration acceptable to parties is thus widened and the smooth functioning of
the arbitral proceedings is enhanced where States adopt the Model Law, which is
easily recognizable, meets the specific needs of international commercial arbitration
and provides an international standard based on solutions acceptable to parties
from different legal systems.
B. Salient features
of the Model Law
1. Special procedural regime for
international commercial arbitration
10. The principles and solutions adopted in the
Model Law aim at reducing or eliminating the above-mentioned concerns and difficulties.
As a response to the inadequacies and disparities of national laws, the Model
Law presents a special legal regime tailored to international commercial arbitration,
without affecting any relevant treaty in force in the State adopting the Model Law.
While the Model Law was designed with international commercial arbitration in mind,
it offers a set of basic rules that are not, in and of themselves, unsuitable
to any other type of arbitration. States may thus consider extending their enactment
of the Model Law to cover also domestic disputes, as a number of enacting States
already have.
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11. Article 1 defines the scope of application
of the Model Law by reference to the notion of “international commercial arbitration”.
The Model Law defines an arbitration as international if “the parties to an arbitration
agreement have, at the time of the conclusion of that agreement, their places
of business in different States” (article 1 (3)). The vast majority of situations
commonly regarded as international will meet this criterion. In addition,
article 1 (3) broadens the notion of internationality so that the Model Law also
covers cases where the place of arbitration, the place of contract performance,
or the place of the subject-matter of the dispute is situated outside the State
where the parties have their place of business, or cases where the parties have
expressly agreed that the subject-matter of the arbitration agreement relates to
more than one country. Article 1 thus recognizes extensively the freedom of the
parties to submit a dispute to the legal regime established pursuant to the
Model Law.
12. In respect of the term “commercial”, the
Model Law provides no strict definition. The footnote to article 1 (1) calls for
“a wide interpretation” and offers an illustrative and open-ended list of relationships
that might be described as commercial in nature, “whether contractual or not”. The
purpose of the footnote is to circumvent any technical difficulty that may
arise, for example, in determining which transactions should be governed by a
specific body of “commercial law” that may exist in some legal systems.
13. Another aspect of applicability is the
territorial scope of application. The principle embodied in article 1 (2) is that
the Model Law as enacted in a given State applies only if the place of arbitration
is in the territory of that State. However, article 1 (2) also contains important
exceptions to that principle, to the effect that certain articles apply,
irrespective of whether the place of arbitration is in the enacting State or
elsewhere (or, as the case may be, even before the place of arbitration is determined).
These articles are the following: articles 8 (1) and 9, which deal with the recognition
of arbitration agreements, including their compatibility with interim measures
ordered by a court, article 17 J on court-ordered interim measures, articles 17
H and 17 I on the recognition and enforcement of interim measures ordered by an
arbitral tribunal, and articles 35 and 36 on the recognition and enforcement of
arbitral awards.
14. The territorial criterion governing most of
the provisions of the Model Law was adopted for the sake of certainty and in view
of the following facts. In most legal systems, the place of arbitration is the
exclusive criterion for determining the applicability of national law and, where
the national law allows parties to choose the procedural law of a State other than
that where the arbitration takes place, experience shows that parties rarely
make use of that possibility. Incidentally, enactment of the Model Law reduces
any need for the parties to choose a “foreign” law, since the Model Law grants the
parties wide freedom in shaping the rules of the arbitral proceedings. In addition
to designating the law governing the arbitral procedure, the territorial
criterion is of considerable practical importance in respect of articles 11, 13,
14, 16, 27 and 34, which entrust State courts at the place of arbitration with functions
of supervision and assistance to arbitration. It should be noted that the territorial
criterion legally triggered by the parties’ choice regarding the place of arbitration
does not limit the arbitral tribunal’s ability to meet at any place it considers
appropriate for the conduct of the proceedings, as provided by article 20 (2).
(b) Delimitation of court assistance and
supervision
15. Recent amendments to arbitration laws
reveal a trend in favour of limiting and clearly defining court involvement in international
commercial arbitration. This is justified in view of the fact that the parties to
an arbitration agreement make a conscious decision to exclude court
jurisdiction and prefer the finality and expediency of the arbitral process.
16. In this spirit, the Model Law envisages court
involvement in the following instances. A first group comprises issues of
appointment, challenge and termination of the mandate of an arbitrator
(articles 11, 13 and 14), jurisdiction of the arbitral tribunal (article 16) and
setting aside of the arbitral award (article 34). These instances are listed in
article 6 as functions that should be entrusted, for the sake of centralization,
specialization and efficiency, to a specially designated court or, with respect
to articles 11, 13 and 14, possibly to another authority (for example, an
arbitral institution or a chamber of commerce). A second group comprises issues
of court assistance in taking evidence (article 27), recognition of the arbitration
agreement, including its compatibility with court-ordered interim measures (articles
8 and 9), court-ordered interim measures (article 17 J), and recognition and
enforcement of interim measures (articles 17 H and 17 I) and of arbitral awards
(articles 35 and 36).
17. Beyond the instances in these two groups,
“no court shall intervene, in matters governed by this Law”. Article 5 thus
guarantees that all instances of possible court intervention are found in the piece
of legislation enacting the Model Law, except for matters not regulated by it (for
example, consolidation of arbitral proceedings, contractual relationship between
arbitrators and parties or arbitral institutions, or fixing of costs and fees, including
deposits). Protecting the arbitral process from unpredictable or disruptive court
interference is essential to parties who choose arbitration (in particular foreign
parties).
2. Arbitration agreement
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(a) Definition and form of arbitration
agreement
19. The original 1985 version of the provision
on the definition and form of arbitration agreement (article 7) closely followed
article II (2) of the New York Convention, which requires that an arbitration
agreement be in writing. If the parties have agreed to arbitrate, but they
entered into the arbitration agreement in a manner that does not meet the form
requirement, any party may have grounds to object to the jurisdiction of the arbitral
tribunal. It was pointed out by practitioners that, in a number of situations, the
drafting of a written document was impossible or impractical. In such cases,
where the willingness of the parties to arbitrate was not in question, the
validity of the arbitration agreement should be recognized. For that reason, article
7 was amended in 2006 to better conform to international contract practices. In
amending article 7, the Commission adopted two options, which reflect two
different approaches on the question of definition and form of arbitration agreement.
The first approach follows the detailed structure of the original 1985 text. It
confirms the validity and effect of a commitment by the parties to submit to Arbitration
an existing dispute (“compromis”) or a future dispute (“clause compromis-soire”).
It follows the New York Convention in requiring the written form of the
arbitration agreement but recognizes a record of the “contents” of the agreement
“in any form” as equivalent to traditional “writing”. The agreement to
arbitrate may be entered into in any form (e.g. including orally) as long as the
content of the agreement is recorded. This new rule is significant in that it no
longer requires signatures of the parties or an exchange of messages between the
parties. It modernizes the language referring to the use of electronic commerce
by adopting wording inspired from the 1996 UNCITRAL Model Law on Electronic
Commerce and the 2005 United Nations Convention on the Use of Electronic Communications
in International Contracts. It covers the situation of “an exchange of statements
of claim and defence in which the existence of an agreement is alleged by one
party and not denied by another”. It also states that “the reference in a contract
to any document” (for example, general conditions) “containing an arbitration
clause constitutes an arbitration agreement in writing provided that the reference
is such as to make that clause part of the contract”. It thus clarifies that applicable
contract law remains available to determine the level of consent necessary for a
party to become bound by an arbitration agreement allegedly made “by reference”.
The second approach defines the arbitration agreement in a manner that omits
any form requirement. No preference was expressed by the Commission in favour of
either option I or II, both of which are offered for enacting States to
consider, depending on their particular needs, and by reference to the legal context
in which the Model Law is enacted, including the general contract law of the
enacting State. Both options are intended to preserve the enforceability of
arbitration agreements under the New York Convention.
20. In that respect, the Commission also adopted,
at its thirty-ninth session in 2006, a “Recommendation regarding the interpretation
of article II, paragraph 2, and article VII, paragraph 1, of the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, done in New York,
10 June 1958” (A/61/17, Annex 2).2 The General Assembly, in its resolution
61/33 of 4 December 2006 noted that “in connection with the modernization of
articles of the Model Law, the promotion of a uniform interpretation and
application of the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, done in New York, 10 June 1958, is particularly timely”. The
Recommendation was drafted in recognition of the widening use of electronic
commerce and enactments of domestic legislation as well as case law, which are more
favourable than the New York Convention in respect of the form requirement
governing arbitration agreements, arbitration proceedings, and the enforcement of
arbitral awards. The Recommendation encourages States to apply article II (2) of
the New York Convention “recognizing that the circumstances described therein
are not exhaustive”. In addition, the Recommendation encourages States to adopt
the revised article 7 of the Model Law. Both options of the revised article 7
establish a more favourable regime for the recognition and enforcement of
arbitral awards than that provided under the New York Convention. By virtue of
the “more favourable law provision” contained in article VII (1) of the New
York Convention, the Recommendation clarifies that “any interested party” should
be allowed “to avail itself of rights it may have, under the law or treaties of
the country where an arbitration agreement is sought to be relied upon, to seek
recognition of the validity of such an arbitration agreement”.
(b) Arbitration agreement and the courts
21. Articles 8 and 9 deal with two important
aspects of the complex relationship between the arbitration agreement and the
resort to courts. Modelled on article II (3) of the New York Convention,
article 8 (1) of the Model Law places any court under an obligation to refer the
parties to arbitration if the court is seized with a claim on the same
subject-matter unless it finds that the arbitration agreement is null and void,
inoperative or incapable of being performed. The referral is dependent on a
request, which a party may make not later than when submitting its first
statement on the substance of the dispute. This provision, where adopted by a
State enacting the Model Law, is by its nature binding only on the courts of
that State. However, since article 8 is not limited in scope to agreements
providing for arbitration to take place in the enacting State, it promotes the universal
recognition and effect of international commercial arbitration agreements.
22. Article 9 expresses the principle that any
interim measures of protection that may be obtained from courts under their procedural
law (for example, pre-award attachments) are compatible with an arbitration agreement.
That provision is ultimately addressed to the courts of any State, insofar as
it establishes the compatibility between interim measures possibly issued by
any court and an arbitration agreement, irrespective of the place of arbitration.
Wherever a request for interim measures may be made to a court, it may not be relied
upon, under the Model Law, as a waiver or an objection against the existence or
effect of the arbitration agreement.
3. Composition of arbitral tribunal
23. Chapter III contains a number of detailed
provisions on appointment, challenge, termination of mandate and replacement of
an arbitrator. The chapter illustrates the general approach taken by the Model
Law in eliminating difficulties that arise from inappropriate or fragmentary
laws or rules. First, the approach recognizes the freedom of the parties to
determine, by reference to an existing set of arbitration rules or by an ad hoc
agreement, the procedure to be followed, subject to the fundamental
requirements of fairness and justice. Secondly, where the parties have not
exercised their freedom to lay down the rules of procedure or they have failed
to cover a particular issue, the Model Law ensures, by providing a set of
suppletive rules, that the arbitration may commence and proceed effectively
until the dispute is resolved.
24. Where under any procedure, agreed upon by
the parties or based upon the suppletive rules of the Model Law, difficulties
arise in the process of appointment, challenge or termination of the mandate of
an arbitrator, articles 11, 13 and 14 provide for assistance by courts or other
competent authorities designated by the enacting State. In view of the urgency
of matters relating to the composition of the arbitral tribunal or its ability
to function, and in order to reduce the risk and effect of any dilatory tactics,
short time-periods are set and decisions rendered by courts or other authorities
on such matters are not appealable.
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(a) Competence to rule on own jurisdiction
25. Article 16 (1) adopts the two important (not
yet generally recognized) principles of “Kompetenz-Kompetenz” and of
separability or autonomy of the arbitration clause. “Kompetenz-Kompetenz”
means that the arbitral tribunal may independently rule on the question of whether
it has jurisdiction, including any objections with respect to the existence or validity
of the arbitration agreement, without having to resort to a court. Separability
means that an arbitration clause shall be treated as an agreement independent of
the other terms of the contract. As a consequence, a decision by the arbitral tribunal
that the contract is null and void shall not entail ipso jure the invalidity of
the arbitration clause. Detailed provisions in paragraph (2) require that any objections
relating to the arbitrators’ jurisdiction be made at the earliest possible time.
26. The competence of the arbitral tribunal
to rule on its own jurisdiction (i.e. on the foundation, content and extent of
its mandate and power) is, of course, subject to court control. Where the arbitral
tribunal rules as a preliminary question that it has jurisdiction, article 16
(3) allows for immediate court control in order to avoid waste of time and
money. However, three procedural safeguards are added to reduce the risk and
effect of dilatory tactics: short time-period for resort to court (30 days),
court decision not appealable, and discretion of the arbitral tribunal to
continue the proceedings and make an award while the matter is pending before the
court. In those cases where the arbitral tribunal decides to combine its
decision on jurisdiction with an award on the merits, judicial review on the
question of jurisdiction is available in setting aside proceedings under
article 34 or in enforcement proceedings under article 36.
(b) Power to order interim measures and preliminary
orders
27. Chapter IV A on interim measures and
preliminary orders was adopted by the Commission in 2006. It replaces article
17 of the original 1985 version of the Model Law. Section 1 provides a generic definition
of interim measures and sets out the conditions for granting such measures. An
important innovation of the revision lies in the establishment (in section 4)
of a regime for the recognition and enforcement of interim measures, which was modelled,
as appropriate, on the regime for the recognition and enforcement of arbitral awards
under articles 35 and 36 of the Model Law.
28. Section 2 of chapter IV A deals with the application
for, and conditions for the granting of, preliminary orders. Preliminary orders
provide a means for preserving the status quo until the arbitral tribunal issues
an interim measure adopting or modifying the preliminary order. Article 17 B
(1) provides that “a party may, without notice to any other party, make a request
for an interim measure together with an application for a preliminary order
directing a party not to frustrate the purpose of the interim measure
requested”. Article 17 B (2) permits an arbitral tribunal to grant a
preliminary order if “it considers that prior disclosure of the request for the
interim measure to the party against whom it is directed risks frustrating the
purpose of the measure”. Article 17 C contains carefully drafted safeguards for
the party against whom the preliminary order is directed, such as prompt
notification of the application for the preliminary order and of the preliminary
order itself (if any), and an opportunity for that party to present its case “at
the earliest practicable time”. In any event, a preliminary order has a maximum
duration of twenty days and, while binding on the parties, is not subject to court
enforcement and does not constitute an award. The term “preliminary order” is used
to emphasize its limited nature.
29. Section 3 sets out rules applicable to both
preliminary orders and interim measures.
30. Section 5 includes article 17 J on interim
measures ordered by courts in support of arbitration, and provides that “a court
shall have the same power of issuing an interim measure in relation to arbitration
proceedings irrespective of whether their place is in the territory of the enacting
State, as it has in relation to proceedings in courts”. That article has been
added in 2006 to put it beyond any doubt that the existence of an arbitration agreement
does not infringe on the powers of the competent court to issue interim measures
and that the party to such an arbitration agreement is free to approach the
court with a request to order interim measures.
5. Conduct of arbitral proceedings
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(a) Fundamental procedural rights of a party
32. Article 18 embodies the principles that
the parties shall be treated with equality and given a full opportunity of
presenting their case. A number of provisions illus- trate those principles. For
example, article 24 (1) provides that, unless the parties have agreed that no oral
hearings be held for the presentation of evidence or for oral argument, the
arbitral tribunal shall hold such hearings at an appropriate stage of the
proceedings, if so requested by a party. It should be noted that article 24 (1)
deals only with the general entitlement of a party to oral hearings (as an
alternative to proceedings conducted on the basis of documents and other materials)
and not with the procedural aspects, such as the length, number or timing of hearings.
33. Another illustration of those principles relates
to evidence by an expert appointed by the arbitral tribunal. Article 26 (2)
requires the expert, after delivering his or her written or oral report, to participate
in a hearing where the parties may put questions to the expert and present expert
witnesses to testify on the points at issue, if such a hearing is requested by
a party or deemed necessary by the arbitral tribunal. As another provision
aimed at ensuring fairness, objectivity and impartiality, article 24 (3) provides
that all statements, documents and other information supplied to the arbitral tribunal
by one party shall be communicated to the other party, and that any expert
report or evidentiary document on which the arbitral tribunal may rely in
making its decision shall be communicated to the parties. In order to enable
the parties to be present at any hearing and at any meeting of the arbitral
tribunal for inspection purposes, they shall be given sufficient notice in advance
(article 24 (2)).
(b) Determination of rules of procedure
34. Article 19 guarantees the parties’ freedom
to agree on the procedure to be followed by the arbitral tribunal in conducting
the proceedings, subject to a few mandatory provisions on procedure, and empowers
the arbitral tribunal, failing agreement by the parties, to conduct the
arbitration in such a manner as it considers appropriate. The power conferred upon
the arbitral tribunal includes the power to determine the admissibility, relevance,
materiality and weight of any evidence.
35. Autonomy of the parties in determining the
rules of procedure is of special importance in international cases since it allows
the parties to select or tailor the rules according to their specific wishes and
needs, unimpeded by traditional and possibly conflicting domestic concepts,
thus obviating the earlier mentioned risk of frustration or surprise (see
above, paras. 7 and 9). The supplementary discretion of the arbitral tribunal is
equally important in that it allows the tribunal to tailor the conduct of the
proceedings to the specific features of the case without being hindered by any restraint
that may stem from traditional local law, including any domestic rule on
evidence. Moreover, it provides grounds for displaying initiative in solving
any procedural question not regulated in the arbitration agreement or the Model
Law.
36. In addition to the general provisions of article
19, other provisions in the Model Law recognize party autonomy and, failing
agreement, empower the arbitral tribunal to decide on certain matters. Examples
of particular practical importance in international cases are article 20 on the
place of arbitration and article 22 on the language to be used in the proceedings.
(c) Default of a party
37. The arbitral proceedings may be continued
in the absence of a party, provided that due notice has been given. This applies,
in particular, to the failure of the respondent to communicate its statement of
defence (article 25 (b)). The arbitral tribunal may also continue the
proceedings where a party fails to appear at a hearing or to produce documentary
evidence without showing sufficient cause for the failure (article 25 (c)). However,
if the claimant fails to submit its statement of claim, the arbitral tribunal is
obliged to terminate the proceedings (article 25 (a)).
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6. Making of award and termination of
proceedings
(a) Rules applicable to substance of dispute
39. Article 28 deals with the determination of
the rules of law governing the substance of the dispute. Under paragraph (1),
the arbitral tribunal decides the dispute in accordance with the rules of law chosen
by the parties. This provision is significant in two respects. It grants the
parties the freedom to choose the applicable substantive law, which is
important where the national law does not clearly or fully recognize that
right. In addition, by referring to the choice of “rules of law” instead of “law”,
the Model Law broadens the range of options available to the parties as regards
the designation of the law applicable to the substance of the dispute. For
example, parties may agree on rules of law that have been elaborated by an international
forum but have not yet been incorporated into any national legal system.
Parties could also choose directly an instrument such as the United Nations
Convention on Contracts for the International Sale of Goods as the body of substantive
law governing the arbitration, without having to refer to the national law of any
State party to that Convention. The power of the arbitral tribunal, on the
other hand, follows more traditional lines. When the parties have not chosen
the applicable law, the arbitral tribunal shall apply the law (i.e., the national
law) determined by the conflict-of-laws rules that it considers applicable.
40. Article 28 (3) recognizes that the
parties may authorize the arbitral tribunal to decide the dispute ex aequo
et bono or as amiables compositeur. This type of arbitration (where
the arbitral tribunal may decide the dispute on the basis of principles it
believes to be just, without having to refer to any particular body of law) is
currently not known or used in all legal systems. The Model Law does not intend
to regulate this area. It simply calls the attention of the parties on the need
to provide clarification in the arbitration agreement and specifically to empower
the arbitral tribunal. However, paragraph (4) makes it clear that in all cases
where the dispute relates to a contract (including arbitration ex aequo et bono)
the arbitral tribunal must decide in accordance with the terms of the contract and
shall take into account the usages of the trade applicable to the transaction.
(b) Making of award and other decisions
41. In its rules on the making of the award
(articles 29-31), the Model Law focuses on the situation where the arbitral
tribunal consists of more than one arbitrator. In such a situation, any award
and other decision shall be made by a majority of the arbitrators, except on questions
of procedure, which may be left to a presiding arbitrator. The majority
principle applies also to the signing of the award, provided that the reason for
any omitted signature is stated.
42. Article 31 (3) provides that the award shall
state the place of arbitration and shall be deemed to have been made at that
place. The effect of the deeming provision is to emphasize that the final
making of the award constitutes a legal act, which in practice does not
necessarily coincide with one factual event. For the same reason that the
arbitral proceedings need not be carried out at the place designated as the
legal “place of arbitration”, the making of the award may be completed through
deliberations held at various places, by telephone or correspondence. In addition,
the award does not have to be signed by the arbitrators physically gathering at
the same place.
43. The arbitral award must be in writing and
state its date. It must also state the reasons on which it is based, unless the
parties have agreed otherwise or the award is “on agreed terms” (i.e., an award
that records the terms of an amicable settlement by the parties). It may be
added that the Model Law neither requires nor prohibits “dissenting opinions”.
7. Recourse against award
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That situation (of considerable concern to
those involved in international commercial arbitration) is greatly improved by
the Model Law, which provides uniform grounds upon which (and clear time
periods within which) recourse against an arbitral award may be made.
(a) Application for setting aside as
exclusive recourse
45. The first measure of improvement is to allow
only one type of recourse, to the exclusion of any other recourse regulated in
any procedural law of the State in question. Article 34 (1) provides that the
sole recourse against an arbitral award is by application for setting aside,
which must be made within three months of receipt of the award (article 34
(3)). In regulating “recourse” (i.e., the means through which a party may
actively “attack” the award), article 34 does not preclude a party from seeking
court control by way of defence in enforcement proceedings (articles 35 and
36). Article 34 is limited to action before a court (i.e., an organ of the
judicial system of a State). However, a party is not precluded from appealing
to an arbitral tribunal of second instance if the parties have agreed on such a
possibility (as is common in certain commodity trades).
(b) Grounds for setting aside
46. As a further measure of improvement, the Model
Law lists exhaustively the grounds on which an award may be set aside. This list
essentially mirrors that contained in article 36 (1), which is taken from
article V of the New York Convention. The grounds provided in article 34 (2)
are set out in two categories. Grounds which are to be proven by one party are
as follows: lack of capacity of the parties to conclude an arbitration
agreement; lack of a valid arbitration agreement; lack of notice of appointment
of an arbitrator or of the arbitral proceedings or inability of a party to
present its case; the award deals with matters not covered by the submission to
arbitration; the composition of the arbitral tribunal or the conduct of
arbitral proceedings are contrary to the effective agreement of the parties or,
failing such agreement, to the Model Law. Grounds that a court may consider of
its own initiative are as follows: non-arbitrability of the subject-matter of
the dispute or violation of public policy (which is to be understood as serious
departures from fundamental notions of procedural justice).
47. The approach under which the grounds for setting
aside an award under the Model Law parallel the grounds for refusing recognition
and enforcement of the award under article V of the New York Convention is
reminiscent of the approach taken in the European Convention on International
Commercial Arbitration (Geneva, 1961). Under article IX of the latter
Convention, the decision of a foreign court to set aside an award for a reason other
than the ones listed in article V of the New York Convention does not
constitute a ground for refusing enforcement. The Model Law takes this philosophy
one step further by directly limiting the reasons for setting aside.
48. Although the grounds for setting aside as
set out in article 34 (2) are almost identical to those for refusing
recognition or enforcement as set out in article 36 (1), a practical difference
should be noted. An application for setting aside under article 34 (2) may only
be made to a court in the State where the award was rendered whereas an
application for enforcement might be made in a court in any State. For that
reason, the grounds relating to public policy and non-arbitrability may vary in
substance with the law applied by the court (in the State of setting aside or
in the State of enforcement).
8. Recognition and enforcement of awards
49. The eighth and last chapter of the Model
Law deals with the recognition and enforcement of awards. Its provisions
reflect the significant policy decision that the same rules should apply to
arbitral awards whether made in the country of enforcement or abroad, and that those
rules should follow closely the New York Convention.
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50. By treating awards rendered in international
commercial arbitration in a uniform manner irrespective of where they were made,
the Model Law distinguishes between “international” and “non-international” awards
instead of relying on the traditional distinction between “foreign” and “domestic”
awards. This new line is based on substantive grounds rather than territorial
borders, which are inappropriate in view of the limited importance of the place
of arbitration in international cases. The place of arbitration is often chosen
for reasons of convenience of the parties and the dispute may have little or no
connection with the State where the arbitration legally takes place.
Consequently, the recognition and enforcement of “international” awards, whether
“foreign” or “domestic”, should be governed by the same provisions.
51. By modelling the recognition and
enforcement rules on the relevant provisions of the New York Convention, the
Model Law supplements, without conflicting with, the regime of recognition and enforcement
created by that successful Convention.
(b) Procedural conditions of recognition and
enforcement
52. Under article 35 (1) any arbitral award, irrespective
of the country in which it was made, shall be recognized as binding and enforceable,
subject to the provisions of article 35 (2) and of article 36 (the latter of which
sets forth the grounds on which recognition or enforcement may be refused).
Based on the above consideration of the limited importance of the place of arbitration
in international cases and the desire of overcoming territorial restrictions, reciprocity
is not included as a condition for recognition and enforcement.
53. The Model Law does not lay down procedural
details of recognition and enforcement, which are left to national procedural laws
and practices. The Model Law merely sets certain conditions for obtaining
enforcement under article 35 (2). It was amended in 2006 to liberalize formal
requirements and reflect the amendment made to article 7 on the form of the arbitration
agreement. Presentation of a copy of the arbitration agreement is no longer required
under article 35 (2).
(c) Grounds for refusing recognition or enforcement
54. Although the grounds on which recognition
or enforcement may be refused under the Model Law are identical to those listed
in article V of the New York Convention, the grounds listed in the Model Law are
relevant not only to foreign awards but to all awards rendered in the sphere of
application of the piece of legislation enacting the Model Law. Generally, it was
deemed desirable to adopt, for the sake of harmony, the same approach and
wording as this important Convention. However, the first ground on the list as contained
in the New York Convention (which provides that recognition and enforcement may
be refused if “the parties to the arbitration agreement were, under the law applicable
to them, under some incapacity”) was modified since it was viewed as containing
an incomplete and potentially misleading conflict-of-laws rule.
Further information on the Model Law may be obtained
from:
UNCITRAL secretariat
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P.O. Box 500
1400 Vienna
Austria
Telephone: (+43-1) 26060-4060
Telefax: (+43-1) 26060-5813
Internet: www.uncitral.org
E-mail: uncitral@uncitral.org
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RECOMMENDATION
REGARDING THE INTERPRETATION OF ARTICLE II, PARAGRAPH 2, AND ARTICLE VII,
PARAGRAPH 1, OF THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS, DONE IN NEW YORK, 10 JUNE 1958, ADOPTED BY THE UNITED NATIONS
COMMISSION ON INTERNATIONAL TRADE LAW ON 7 JULY 2006 AT ITS THIRTY-NINTH
SESSION
The United Nations Commission on International
Trade Law,
Recalling General Assembly resolution 2205 (XXI)
of 17 December 1966, which established the United Nations Commission on
International Trade Law with the object of promoting the progressive harmonization
and unification of the law of international trade by, inter alia, promoting
ways and means of ensuring a uniform interpretation and application of
international conventions and uniform laws in the field of the law of international
trade,
Conscious of the fact that the different legal,
social and economic systems of the world, together with different levels of development,
are represented in the Commission,
Recalling successive resolutions of the General
Assembly reaffirming the man- date of the Commission as the core legal body within
the United Nations system in the field of international trade law to coordinate
legal activities in this field,
Convinced that the wide adoption of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York
on 10 June 1958, 1 has been a significant achievement in the
promotion of the rule of law, particularly in the field of international trade,
Recalling that the Conference of
Plenipotentiaries which prepared and opened the Convention for signature
adopted a resolution, which states, inter alia, that the Conference “considers
that greater uniformity of national laws on arbitration would further the effectiveness
of arbitration in the settlement of private law disputes”,
Bearing in mind differing interpretations
of the form requirements under the Convention that result in part from differences
of expression as between the five equally authentic texts of the Convention,
Taking into account article VII,
paragraph 1, of the Convention, a purpose of which is to enable the enforcement
of foreign arbitral awards to the greatest extent, in particular by recognizing
the right of any interested party to avail itself of law or treaties of the country
where the award is sought to be relied upon, including where such law or treaties
offer a regime more favourable than the Convention,
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Taking into account international legal instruments,
such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, 2
as subsequently revised, particularly with respect to article 7, 3 the
UNCITRAL Model Law on Electronic Commerce, 4 the UNCITRAL Model Law on
Electronic Signatures 5 and the United Nations Convention on the Use
of Electronic Communications in Inter- national Contracts, 6
Taking into account also enactments of domestic
legislation, as well as case law, more favourable than the Convention in
respect of form requirement governing arbitration agreements, arbitration proceedings
and the enforcement of arbitral awards,
Considering that, in interpreting the
Convention, regard is to be had to the need to promote recognition and enforcement
of arbitral awards,
1. Recommends that article II, paragraph
2, of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
done in New York, 10 June 1958, be applied recognizing that the circumstances described
therein are not exhaustive;
2. Recommends also that article VII,
paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, done in New York, 10 June 1958, should be applied to allow any
interested party to avail itself of rights it may have, under the law or
treaties of the country where an arbitration agreement is sought to be relied
upon, to seek recognition of the validity of such an arbitration agreement.
1 Official Records of the General
Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I.
1
Article headings are for reference purposes only and are not to be used for
purposes of interpretation.
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3 The conditions set forth in article
17 I are intended to limit the number of circumstances in which the court may
refuse to enforce an interim measure. It would not be contrary to the level of
harmonization sought to be achieved by these model provisions if a State were
to adopt fewer circumstances in which enforcement may be refused.
4 The conditions set forth in this
paragraph are intended to set maximum standards. It would, thus, not be
contrary to the harmonization to be achieved by the model law if a State
retained even less onerous conditions.
2 Reproduced in Part
Three hereafter.
2 Official Records of the General Assembly,
Fortieth Session, Supplement No. 17 (A/40/17), annex I, and United Nations
publication, Sales No. E.95.V.18.
3 Ibid., Sixty-first Session, Supplement
No. 17 (A/61/17), annex I.
4 Ibid., Fifty-first Session, Supplement
No. 17 (A/51/17), annex I, and United Nations publication, Sales No.
E.99.V.4, which contains also an additional article 5 bis, adopted in 1998, and
the accompanying Guide to Enactment.
5 Ibid., Fifty-sixth Session, Supplement
No. 17 and corrigendum (A/56/17 and Corr.3), annex II, and United Nations
publication, Sales No. E.02.V.8, which contains also the accompanying Guide to
Enactment.
6 General Assembly resolution 60/21, annex.
Luật mẫu về Trọng tài thương mại quốc tế của Ủy ban liên hiệp quốc về Luật thương mại quốc tế năm 1985
46.607