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The 1985 UNCITRAL Model Law on International Commercial Arbitration: an exercise in international legislation*

Published online by Cambridge University Press:  07 July 2009

Aron Broches
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On 21 June 1985 the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Law on International Commercial Arbitration, six years after the Commission had decided to request the Secretariat to commence work on a model law on arbitral procedure.

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Articles
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Netherlands Yearbook of International Law , Volume 18 , December 1987 , pp. 3 - 67
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Copyright © T.M.C. Asser Press 1987

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References

1. Its text, which is reproduced as an Appendix to this article, constitutes Annex I of the Report of the United Nations Commission on International Trade Law on the work of its eighteenth session (1985), GAOR, Fortieth Session, Supplement No. 17 (A/40/17) (hereafter ‘Commission Report’).

2. Report of the United Nations Commission on International Trade Law on the work of its twelfth session (1979), GAOR Thirty-fourth Session, Supplement No. 17 (A/34/17), para. 81.

3. 330 UNTS, p. 38. The text of the Convention is also set out, inter alia, in the Register of Texts of Conventions and Other Instruments concerning International Trade Law, vol. II, pp. 24–28Google Scholar (UN Sales No. E.73.V.3).

4. Adopted by UNCITRAL in 1976. On 15 December 1976 the UN General Assembly adopted Resolution 31/98 recommending the use of the Rules ‘in the settlement of disputes arising in the context of international commercial relations’. The text of the Rules is set out, inter alia, in 7 UNCITRAL Yearbook (1976) pp. 22–27 and in 2 Yearbook Commercial Arbitration (hereafter ‘YCA’) (1977) pp. 161–171. The text has also been published in booklet form by the United Nations (UN Sales No. 77.V.6).

5. UNCITRAL Arbitration Rules, Art. 1(2).

6. Actually arbitration, ‘l'enfant gâté’ of international institutions (Fouchard, P., ‘Le règlement d'arbitrage’, 106 Clunet (1979) p. 816)Google Scholar, had already been included as a priority subject in UNCITRAL's program adopted at its first session (1968). At its second session (1969) UNCITRAL took a first, and negative, decision, namely not to undertake the drafting of a new international convention or to seek to amend existing conventions. The next step was to appoint a Special Rapporteur, Ion Nestor of Romania, to study questions of practical application and interpretation of existing arbitration conventions. Mr. Nestor's definitive report, which was considered by the Commission at its fifth session (1972), recommended among other things: (i) the establishment of a working group to draft, in co-operation with arbitration centers, model arbitration rules; and (ii) the preparation of a model uniform law on international commercial arbitration, limited to a number of basic principles, which could be used by States which wished to modernize their arbitration legislation. The first recommendation was accepted at the sixth session (1973) and resulted in the adoption in 1976 of the UNCITRAL Arbitration Rules. The second met with a great deal of opposition. Opponents of the proposal pointed out that in most countries the code of civil procedure was one of the branches of the law in which national traditions were strongest. Attempts at unification even at a regional level were often unsuccessful as evidenced by the delay in ratification of the 1966 European Convention providing a Uniform Law on Arbitration which was signed by only two States and ratified by one. (The situation has not changed since then. The Convention has not entered into force. It was signed and ratified by Belgium which enacted the Uniform Law. Austria, the other signatory, never ratified the Convention). The Commission decided not to act on the second recommendation, reserving the right to consider what further work it might usefully undertake in the matter of arbitration at a subsequent session. (For the foregoing, see the summary by Fouchard, ibid., pp. 817–819 and 4 UNCITRAL Yearbook (1973) pp. 19–21 and 129–135).

7. AALCC also invited the Commission to consider whether such a protocol could clarify that a governmental agency which was a party to a commercial transaction should not be able to invoke sovereign immunity in respect of arbitration pursuant to the agreement governing the transaction.

8. 8 UNCITRAL Yearbook (1977) pp. 67–68.

9. See n. 5 supra.

10. 484 UNTS p. 364.

11. As a matter of form such requests are usually addressed to the Secretary-General and reports are rendered pursuant thereto in the name of the Secretary-General.

12. 8 UNCITRAL Yearbook (1977) p. 21.

13. A non-governmental organization consisting of a small number of arbitration experts serving in their personal capacity although most of them come from arbitration centers.

14. 10 UNCITRAL Yearbook (1979) pp. 100–108.

15. Ibid., pp. 108–109.

16. For the discussions and decision at the Commission's twelfth session, see 10 UNCITRAL Yearbook (1979) pp. 20–21.

17. As was in fact done by Canada, see Annex infra.

18. Report of the United Nations Commission on International Trade Law on the work of its fourteenth session (1981), GAOR, Thirty-sixth Session, Supplement No. 17 (A/36/17), para. 70. Budgetary constraints stood in the way of the creation of a separate Working Group. This accounts for the confusing numbering of the Working Group's sessions. The five Working Group sessions on the Model Law are recorded as the third to the seventh sessions of the Working Group on International Contract Practices.

19. Reports on the work of those sessions are contained respectively in documents A/CN.9/216, A/CN.9/232, A/CN.9/233, A/CN.9/245 and A/CN.9/246.

20. Report of the United Nations Commission on International Trade Law on the work of its seventeenth session (1984), GAOR Thirty-ninth Session, Supplement No. 17 (A/39/17), para. 101. At the Commission's request the Secretariat prepared an analytical compilation of the comments received (A/CN.9/263 and Add. 1 and 2) and submitted an analytical commentary on the draft text (A/CN.9/264).

21. See Dietz, J.P., ‘International Commercial Arbitration/Development of the UNCITRAL Arbitration Rules’, 27 AJCL (1979) p. 450.CrossRefGoogle Scholar

22. The present writer. Since the ICCA consists of individuals of different nationalities and from different legal and socio-economic backgrounds, there was no ICCA standpoint on the content of the Model Law. Several ICCA members represented their governments in the Working Group and the Commission. The ICCA observer acted as a neutral expert.

23. The Report of the Lausanne meeting which was transmitted to governments was published in the autumn of 1984 as International Council for Commercial Arbitration Congress series no. 2, UNCITRAL's Report for a Model Law on International Commercial Arbitration (P. Sanders, ed.)

24. Honnold, J., ‘UNCITRAL: Mission and Methods’, 27 AJCL (1979) pp. 207–211.Google Scholar

25. Much of the following account of the creation of UNCITRAL is based on Ustor's, E. article, ‘Progressive Development of International Trade Law: a New Programme of the UN’, 7 IJIL (1967) pp. 159–184Google Scholar. Mr. Ustor, ‘the father of UNCITRAL’, was Hungary's representative at the Sixth Committee.

26. Article 13(1)(a) reads: ‘The General Assembly shall initiate studies and make recommendations for the purpose of (a) promoting international cooperation in the political field and (b) encouraging the progressive development of international law and its codification’. It is interesting that for the purposes of determining the proper scope of the General Assembly's competence, the term international law was understood sensu lato as transnational law.

27. Loc.cit. n. 25, p. 161.

28. A brief account of UNCITRAL's activities and achievements in the formulation of legal texts is given by Herrmann, G. in the Encyclopedia of Public International Law, vol. 5 (1983) pp. 298–300Google Scholar. On the occasion of the tenth anniversary of UNCITRAL's commencement of activities two major studies were published: Goldman, B. et al. , ‘Les Travaux de la Commission des Nations Unies pour le Droit Commercial International’, 106 Clunet (1979) pp. 747–845Google Scholar, and a symposium on ‘Unification of International Trade Law; UNCITRAL's First Decade’, edited by Honnold, J., in 27 AJCL (1979) pp. 201–564.CrossRefGoogle Scholar

29. See Ustor, loc.cit. n. 25, pp. 168–171.

30. Initially 29, in 1973 enlarged to 36 by UNGA Res. 3108 (XXVIII).

31. Herrmann, loc.cit. n. 28, p. 300. Dr. Herrmann, Senior Legal Officer of the International Trade Law Branch, was the Secretary of the Working Group dealing with the Model Law on International Commercial Arbitration and in that capacity made a particularly valuable contribution to the formulation of that instrument.

32. Loc.cit. n. 25, p. 180.

33. 19 ILM (1980) p. 671.

34. This does not imply acceptance on my part of the notion of lex mercatoria as positive law superseding national law, as to which see Goldman, loc.cit. n. 28, pp. 752–753.

35. Professor R. David of France has proposed that States agree by means of a general convention to accept rules relating to international transactions adopted by the Commission by a qualified majority as ‘a body of common law’. States would nevertheless be able to avoid the application of such rules by (i) declaring not to accept them in whole or in part and (ii) indicating the rule of their national law which would replace the ‘common law’ provision. See Farnsworth, E.A., ‘UNCITRAL — Why? What? How? When?’, 20 AJCL (1972) p. 322CrossRefGoogle Scholar, and Goldman, loc.cit. n. 28, p. 752.

36. 14 European Law Digest (1986), p. 143.

37. Franke, U., A Model Law on International Commercial Arbitration, Swedish and International Arbitration (1984) p. 54.Google Scholar

38. Such as the 15 permissible derogations (or omissions) from the Uniform Law on Arbitration provided by the 1966 European Convention.

39. See Introduction supra.

40. Ibid.

41. As I shall show in chapter 3.2 infra, these two methods raise different problems.

42. See chapter 2 supra.

43. A/CN.9/216, para. 18.

44. Commission Report, para. 16. The Summary Records show that the representative of the USSR had reminded the Commission that his country had previously expressed a preference for a convention. However, its position was flexible and it was willing to accept a model law if that were the general view. He had also suggested that a decision should be taken at the outset (A/CN.9/SR.306, para. 4).

45. Analytical compilation of comments by governments and international organizations, A/CN.9/263. p. 5.

46. See, e.g., Szász, I., ‘Introduction to the Model Law of UNCITRAL on International Commercial Arbitration’, UNCITRAL's Project for a Model Law on International Commercial Arbitration, ICCA Congress Series no. 2 (1984) pp. 31, 36Google Scholar; Böckstiegel, K.H., ‘UNCITRAL-Modell-Gesetz für die internationale Wirtschaftsschiedsgerichtsbarkeit’, 30 RIW (1984) p. 670Google Scholar, who recalled that the International Chamber of Commerce had been opposed to the Council of Europe project for a uniform law on the ground that the more flexible solution of a model law offered better chances of success; Broches, A., ‘A Model Law on International Commercial Arbitration? — A Progress Report on the Work Undertaken within the U.N. Commission on International Trade Law (UNCITRAL)’, 18 George Washington JIL & Econ. (1984) pp. 79, 80Google Scholar; Herrmann, G., ‘The UNCITRAL Model Law — Its Background, Salient Features and Purposes’, 1 Arbitration International (1985) pp. 6, 11.CrossRefGoogle Scholar

47. See n. 6 supra in fine.

48. Arbitration Act 1975 s. 1(1), I International Handbook on Commercial Arbitration, a publication of the International Council for Commercial Arbitration (hereinafter ‘Handbook’) — England, Annex II-1. S. 1(1) was enacted in order to bring English law in conformity with the New York Convention. In respect of non-Convention arbitration agreements, referral to arbitration is within the discretion of the court.

49. Arbitration (Foreign Agreements and Awards) Act 1982 s. 4, II Handbook — New Zealand, Annex II-1.

50. Foreign Awards (Recognition and Enforcement) Act 1961 s. 3. The 1961 Act implements the New York Convention and pro tanto supersedes the Arbitration Act 1940 and the Code of Civil Procedure. For the text of s. 3 see 9 YCA (1979) p. 272, fn. 2.

51. Arbitration Law 5928–1968, s. 5, I Handbook — Israel, Annex I-1.

52. Arbitration (Foreign Awards and Agreements) Act 1974 s. 7(2), I Handbook — Australia, Annex I-2. This is the only statute that uses the term ‘shall stay the proceedings’. S. 7(2) is in conflict with the New York Convention in giving the court discretion to attach conditions to the stay. The Convention requires a mandatory stay.

53. United States Arbitration Act s. 3, II Handbook — United States, Annex I-2.

54. Judicial Code, Art. 1679, I Handbook — Belgium, Annex I-1.

55. Code of Civil Procedure (ZPO), Art. 1027 (a).

56. Code of Civil Procedure, Art. 1458, I Handbook — France, Annex I-3.

57. Arbitration Act 1972 s. 1.1, I Handbook — Denmark, Annex I-1.

58. Act of 1929 concerning foreign arbitration agreements and awards, s. 3, II Handbook — Sweden, Annex II-1.

59. Code of Civil Procedure, Art. 697.2, II Handbook — Poland, Annex I-1.

60. Fundamentals of Civil Legislation of the USSR and Union Republics 1961 Art 41 II Handbook — USSR, Annex I-1.

61. Code of Civil Procedure, Art. 473(1), II Handbook — Yugoslavia, Annex I-1.

62. For a list of cases see ‘Cumulative Index’, 11 YCA (1986) p. 428Google Scholar. It is not very clear how important the difference in practice is between the common law stay and the civil law dismissal. The former probably reflects suspicion of the arbitral process and helps to show that an arbitration agreement does not amount to the prohibited ouster of the jurisdiction of the courts. In Rhone v. Achille Lauro et al., 9 YCA (1984) pp. 474–479 at 478, the defendants argued unsuccessfully in the US District Court, Virgin Islands, District of St. Thomas and St. John, that if a controversy must be referred to arbitration under the Convention this means that a court is divested of its subject matter jurisdiction over the action. The court disagreed, holding that while no other judicial action should be taken until the arbitration had been completed in the controversy referred to, the controversy referred to arbitration need not be removed from a court's docket.

63. 8 YCA (1983) pp. 394–397.

64. The word ‘triggered’ which appears in the Yearbook text is an obvious error and I have substituted ‘discharged’.

65. Loc.cit. n. 63, p. 396.

66. ETS, no. 56. The text of the Convention and its Annexes is also set out in the Register of Texts of Conventions and Other Instruments Concerning International Trade Law, vol. 2, pp. 65–75 (UN Sales No. E.73.V.3).

67. Pursuant to Art. 11(1) the Convention is open to signature by the members of the Council of Europe. The United Kingdom is a member. Art. 12 provides that the Committee of Ministers of the Council of Europe may invite any non-member State to accede thereto.

68. It goes without saying that I am concerned only with international unification, and not with unification of provincial or state laws within a country with a federal structure such as Canada or the United States. The uniform laws adopted in those countries partake more of the nature of model laws, since they are not offered on a ‘take it or leave it’ basis. More importantly, they are unlikely to run into differences of legal tradition, with the notable exception in Canada of the civil law province of Quebec.

69. The present writer does not claim to be exempt from such criticism as this may imply.

70. A/CN.9/207, para. 59.

71. Report of the Working Group, A/CN.9/216, paras. 35 and 36.

72. Report of the Working Group, A/CN.9/233, paras. 74, 76 and 77.

73. See Introduction supra.

74. Report of the Working Group, A/CN.9/245, para. 186.

75. Note by the Secretariat, A/CN.9/WG II/WP.45, Art. IV(1) and fn. 16 thereto.

76. Report of the Working Group, A/CN.9/246, paras. 20–23.

77. A/CN.9/264, Art. 8, para. 3.

78. A/CN.9/263/Add.1, Art. 8, para. 2.

79. A/CN.9/263, Art. 8, para. 5.

80. A/CN.9/263/Add.1, Art. 8, para. 1.

81. A/CN.9/SR., para. 12. For budgetary reasons no summary records were prepared for the sessions of the Working Group.

82. The individual articles also have headings. A footnote to Art. 1, approved by the Commission (Report, para. 326), states that these headings are for reference purposes only and are not to be used for purposes of interpretation.

83. The question whether an attempt should be made to deal in the Model Law with certain aspects of State immunity had been raised in the Secretariat's ‘Questions for discussion by the Working Group’ (A/CN.9/WG II/WP 35), and was answered in the negative by the Working Group at its first session on arbitration (A/CN.9/216, para. 29). Noting this decision, the Analytical Commentary (A/CN.9/264, p. 11, para. 21) states: ‘For example, it [i.e., the Model Law] does not say whether the signing of an arbitration agreement by a State organ or governmental agency constitutes a waiver of any such immunity’. This is therefore a matter to be determined by national law. (The notion that the New York Convention forbids a Contracting State to accept a plea of sovereign immunity in an enforcement proceeding, advanced in a highly subjective article by Feldman, M.B., ‘Waiver of Foreign Sovereign Immunity by Agreement to Arbitrate: Legislation Proposed by the American Bar Association’, 40 Arbitration Journal (1985) p. 24Google Scholar et seq, must be firmly rejected). Among recent statutory enactments of State immunity law, the UK State Immunity Act 1978 (17 ILM (1978) p. 1123) provides that a State which has agreed to arbitration is not immune from judicial proceedings relating to the arbitration (s. 9) and that property of a State used or intended to be used for commercial purposes is not immune from process for the enforcement of an arbitral award (s. 13), and the Australian Foreign States Immunities Act 1985 (21 ILM (1986) p. 715) declares: (i) that where a State has agreed to arbitration it is not immune from supervisory jurisdiction of a court (including proceedings to set aside the award); and (ii) where the State would not be immune in a judicial proceeding concerning a transaction and has agreed to submit a dispute about that transaction to arbitration, the State is not immune in a proceeding for the recognition or the enforcement of the resulting award (s. 17). Art. 12 of the European Convention on State Immunity (11 ILM (1972) p. 470) contains a provision similar to s. 9 of the UK Act. The two other recent enactments, the US Foreign Sovereign Immunities Act (15 ILM (1976) p. 1388) and the Canadian State Immunity Act (21 ILM (1982) p. 798) do not mention arbitration eo nomine and the immunity or lack thereof of a State in proceedings relating to arbitration or recognition or enforcement of an arbitral award must be found by the application of provisions of general import, such as a State not being immune from the jurisdiction of a court in any proceedings that relate to any commercial activity (Canada, s. 5) or, inter alia, in any case in which it has waived its immunity either explicitly or implicitly (USC s. 1605 (a)(1)), and that a State is not immune from execution if it has waived its immunity either explicitly or implicitly (Canada, s. 11), or that property of a foreign State used for commercial activity in the United States is not immune from execution, inter alia, if that State has waived its immunity either explicitly or implicitly (USC s. 1610 (a)(1)). The legislative history of USC s. 1605 expressly states that an agreement to arbitrate constitutes an implicit waiver and it was so held in Ipitrade International v. Federal Republic of Nigeria, 465 F. Supp. 824 (1978). Whether it also constitutes an implicit waiver from execution is by no means clear. For reports on various countries on the evolving State immunity scene and a general introduction to the subject, see the Symposium on State immunity from execution in 10 NYIL (1979) pp. 3–289.

84. After extensive discussion on draft texts the majority felt that it was too early to deal with adaptation and supplementation, whose usefulness was recognized, in the framework of arbitration.

85. A/CN.9/216, paras. 16 and 17.

86. Cf., New York Convention, Art. I.2: ‘The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted’; European Convention 1961, Art. I(b): ‘The term “arbitration” shall mean not only settlement by arbitrators appointed for each case (ad hoc arbitration) but also by permanent arbitral institutions’. The mention of ‘permanent arbitral tribunals’ in the New York Convention, regarded by some as superfluous, was proposed initially by the USSR and re-introduced by Czechoslovakia (see van den Berg, A.J., The New York Arbitration Convention of 1958. Towards a Uniform Judicial Interpretation (1981) pp. 379–380).Google Scholar

87. For details of the discussion on the definition of ‘international’ reference is made to Working Group Reports A/CN.9/216, paras. 20–21, A/CN.9/232, paras. 34–36, A/CN.9/233, paras. 57–60, A/CN.9/245, paras. 164–168, and A/CN.9/246, paras. 160–164, and, in particular, the Commission Report, paras. 26–33, A/CN.9/SR.306, paras. 45–55 and A/CN.9/SR.307, paras. 1–51.

88. France affords an outstanding example of special treatment of international arbitration, as evidenced not only by the 1981 Decree on international arbitration (since incorporated in the Code de Procédure Civile as Arts. 1492–1507), but already by the policy developed since the 1960s by the Cour de Cassation towards granting an autonomous status to international arbitration (Derains, Y., ‘National Reports-France’, 7 YCA (1982) p. 4).Google Scholar

89. For details of the discussions on the definition of ‘commercial’ reference is made to Working Group Reports A/CN.9/216, para. 19, A/CN.9/232, paras. 26–33, A/CN.9/233, paras. 52–56, A/CN.9/245, paras. 162–163, A/CN.9/246, paras. 158–159 and in particular the Commission Report, paras. 19–26.

90. Para. 26. For a comment on the question of the effect of the footnote and, more generally, of the travaux préparatoires I refer the reader to the Annex—Reception of the Model Law by Canada, infra.

91. A/CN.9/WG II/WP.49.

92. See A/CN.9/246, paras. 165–167 and my comments in UNCITRAL's Project, op.cit. n. 23, p. 210.

93. It should be noted that since an award is deemed to have been made at the place of arbitration (Art. 31(3)), and since Art. 20(2) makes it possible that no part of the proceedings will in fact take place at the place of arbitration, parties may choose a ‘place of arbitration’ in a Model Law State for the sole purpose of having the benefits of the Model Law.

94. For details of the discussion reference is made to the Commission Report, paras. 72–81.

95. See A/CN.9/264, p. 8, para. 8; A/CN.9/263, p. 8, para. 3; A/CN.9/246, para. 188.

96. See chapter 6.6 infra.

97. As to this expression, derived from Art. II(3) of the New York Convention, see chapter 3.3 supra.

98. This provision may be invoked regardless of the place of arbitration (see chapter 5.1.4 supra).

99. This provision which like Art. 8 may be invoked regardless of the place of arbitration (see chapter 5.1.4 supra) is in line with the UNCITRAL Arbitration Rules and modern thinking on the subject. It serves to resolve doubts remaining in some countries, including the United States, as to the availability of pre-award attachment. Contrary to the general trend the 1984 version of the Arbitration Rules of ICSID (International Centre for Settlement of Investment Disputes) permits pre-award judicial remedies only if the parties have so agreed.

100. The Commission agreed that the quoted words were not intended to limit the tribunal's ‘Kompetenz-Kompetenz’ to those cases where a party had raised an objection. Consequently the arbitral tribunal could decide on its own motion doubts or questions as to its jurisdiction, including the issue of arbitrability (Commission Report, para. 150).

101. See Commission Report, paras. 157–163.

102. This was an unfortunate decision by the Commission which uncritically adopted the same rule of finality as it had adopted in respect of court decisions under Arts. 11 (Appointment of arbitrators) and 13 (Challenge procedure). It creates, moreover, an illogical and, in the present writer's view, unjustified distinction between the remedies available in case of a determination by arbitrators on jurisdiction as a preliminary matter and as part of an award on the merits. In the latter case the court's decisions in a procedure for setting aside on the ground of lack of arbitral jurisdiction, or for recognition and enforcement in which lack of jurisdiction is advanced as a defense, are subject to appeal.

103. It will, however, have that effect if the contract was null and void ab initio. A discussion of Kompetenz - Kompetenz and separability, different concepts which are often confused, is beyond the scope of this article.

104. Commission Report, para. 151.

105. This principle was placed in a separate Art. 18 to emphasize its importance and to meet the concern of the British and Commonwealth delegations that ‘misconduct’ of arbitrators should be a ground for annulment and refusal of recognition and enforcement of an award. These delegations were not satisfied that in the absence of Art. 18 this feature of their laws would have been adequately covered by Arts. 34 and 35 which follow the New York Convention language that a party was ‘unable to present his case’.

106. Where a provision of the Model Law refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement (Art. 2(e)). The agreement of the parties may thus be represented by acceptance of institutional or non-institutional rules of arbitration (e.g., ICC, AAA, UNCITRAL).

107. The Working Group considered but rejected two variants of which the first would merely have provided that the arbitral proceedings shall continue and the second that the arbitral tribunal shall treat the default as a denial of the claim and shall continue the proceedings. The variant adopted by the Working Group followed the system of the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States whose Art. 45(1) reads: ‘Failure of a party to appear or to present his case shall not be deemed an admission of the other party's assertions’. The Report of the final session of the Working Group notes that the wording adopted, ‘while according certain discretion to the arbitral tribunal, contained a limitation which was useful in view of the fact that under many national laws on civil procedure default of the defendant in court proceedings was treated as an admission of the claimant's allegations’ (A/CN.9/264, para. 83).

108. Commission Report, para. 214.

109. Ibid., paras. 232–239.

110. It is found, e.g., in Art. 32(2) of the Statute of the International Court of Justice and, as regards arbitration, in Art. 42(3) of the 1965 Washington Convention referred to in n. 107 supra.

111. ‘It was felt that a more cautious approach in paragraph (2) was advisable in view of the fact that paragraph (1) already presented a rather progressive step’ (!) (A/CN.9/245, para. 97).

112. Suggestions that in the absence of a majority a presiding arbitrator could decide as if he were a sole arbitrator (as provided in Art. 19 of the ICC Arbitration Rules) was not accepted. It was pointed out, however, that Art. 29 was not mandatory and that if the parties wished to confer that power on the presiding arbitrator, they could do so.

113. Commission Report, paras. 247–250.

114. Ibid., paras. 266–269. I interpret the quoted words to mean agreement in general as well as in respect of a specific request.

115. For an analysis of the arguments bearing on the pre-1985 history of what became Arts. 34, 35 and 36 of the Model Law see Broches, A., ‘Recourse Against the Award; Recognition and Enforcement of the Award’, in UNCITRAL's ProjectGoogle Scholar, op.cit. n. 23, pp. 201–228.

116. A/CN.9/207, paras. 107–111.

117. That is to say, the only means for actively attacking the award. A party retains the right to attack the award in defending a proceeding for its recognition or enforcement under Art. 36.

118. The words in italics reflect the final decision of the Commission, which adopted the territorial criterion for the application of all but a few articles of the Model Law (notably Arts. 35 and 36), op.cit. n. 23, pp. 209–211. See also chapter 5.1.4 supra.

119. If a request has been made under Art. 33 for the correction of errors in the award, for its interpretation or for the rendering of an additional award, the period runs from the date on which the arbitral tribunal has disposed of the request.

120. Although it was agreed that no change of substance was intended, the proposal to simplify the language which I had first advanced in the Working Group gave rise there, and subsequently at the Commission session, to conflicting views on ‘respect’ due to the New York Convention language (A/CN.9/246, para. 132; Broches, loc.cit. n. 23, p. 212; A/CN.9/SR.317, paras. 6–36; Commission Report, paras. 280–282.)

121. See Analytical Commentary, A/CN.9/264, p. 73, para. 11 and Van den Berg, op.cit. n. 86, pp. 322–330.

122. Working Group Report A/CN.9/246, paras. 126, 127, 135; Commission Report, para. 290.

123. Broches, loc.cit. n. 115, p. 212.

124. Commission Report, paras. 291–294. See also Broches, loc.cit. n. 115, p. 213.

125. Para. 297.

126. A/CN.9/245, para. 154.

127. A/CN.9/246, para. 139.

128. Commission Report, paras. 305–307.

129. Working Group reports A/CN.9/245, paras. 124–133 and A/CN.9/246, paras. 142 and 143; Commission Report, paras. 308–310.

130. This is not the special court designated pursuant to Art. 6 but the court that is competent under the general procedural law of the forum State.

131. As, for example, in the United Kingdom, 8 YCA (1983) p. 27 and New Zealand, ibid., p. 543.

132. United States Arbitration Act, 9 USC ss. 9 and 207.

133. E.g., Brazil (‘homologation’), 3 YCA (1978) pp. 42-33Google Scholar; Syria, 7 YCA (1982) pp. 48–50Google Scholar; Korea, 7 YCA (1982) p. 31.Google Scholar

134. The Netherlands (President of District Court), Code of Civil Procedure, Art. 1062; Switzerland, 3 YCA (1978) pp. 198–200Google Scholar (declaration of enforceability to be followed by execution procedure which may be opposed); France, 7 YCA (1982) pp. 13–15.Google Scholar

135. See supra, n. 120.

136. Loc.cit. n. 23, pp. 222–223. My principal objection concerned the fact that, apart from awkward language, the use of the permissive (‘may refuse’) in Art. 36 was inappropriate with respect to a domestic award as applied to certain grounds for refusal of recognition or enforcement, and that refusal should be mandatory, if the court finds that (i) the composition of the arbitral tribunal or the arbitral procedure was in conflict with a mandatory provision; or the award has been set aside or suspended by the forum's court specified in Art. 6; or the dispute is not arbitrable under the law of the forum or recognition or enforcement of the award would be contrary to the forum's public policy.

137. A/CN.9/245, paras. 156–158 and A/CN.9/246, paras. 149 and 152.

138. That reservation permits a Contracting State to apply the Convention only to relationships which are considered as commercial under its national law.

139. Commission Report, para. 330.

140. A/CN.9/233, para. 128.

141. A/CN.9/264, p. 8.

142. Art. I.1. See Van den Berg, op.cit. n. 86, pp. 22–28. This does not arise in a Model Law State since an award made in that State is always considered a domestic award.

143. Van den Berg, op.cit. n. 86, pp. 17–19.

144. See Annex - Reception of the Model Law in Canada, para. 2 infra.

145. Or case law, in jurisdictions like the United States where the bulk of arbitration law is case law.

146. Without such detail the provisions might have been ‘poisoned gifts’, an expression used in a similar context by Prof. J.C. Schultsz in his Report to the Netherlands Association for International Law (Mededelingen van de Nederlandse Vereniging voor Internationaal Recht No. 93 (1986) p. 7Google Scholar) on ‘Legislation in the Netherlands and international arbitration’.

147. Infra. The Canadian experience is interesting not only in showing the extent to which the Model Law provisions have been accepted, but also in illustrating different ways in which it can be enacted into national law.

148. See n.160 infra.

149. The Netherlands was not represented at the sessions on the Model Law of either the Working Group or the plenary Commission. One also notes a studied avoidance of references to the Model Law proposals by the drafters of the Explanatory Memorandum accompanying the Bill which was introduced in July 1984, that is, after the adoption of the Working Group draft. The Bill gave rise to a number of questions and suggestions in the report of the Second Chamber's Standing Committee on Juridical Matters and in professional journals. A list of amendments was submitted in February 1986. In the accompanying Memorandum of Reply to the Committee Report the Minister of Justice mentions the adoption of the Model Law and explains that it is just a model which need not be followed but that provisions which appeared useful were included in the list of amendments. He concludes that the Bill as amended does not essentially differ in substance from the UNCITRAL Model Law (see Schultsz, loc.cit. n. 146). An evaluation of the new Netherlands legislation, which covers both national and international arbitration, is outside the scope of this article.

150. Mendes, E.P., ‘Canada: A New Forum to Develop the Cultural Psychology of International Commercial Arbitration’, 3 Journal of International Arbitration(1986)Google Scholar. As will be seen, infra, Mendes is quite mistaken when he states that only one UK commentator has even addressed the issue of the adoption of the Model Law.

151. In October 1986 the Lord Advocate of Scotland set up an advisory committee on arbitration whose first task will be to advise on the possible implementation of the Model Law in Scotland, complementing the work of the Mustill Committee. See 14 International Business Lawyer (1986) p. 393.

152. On the final text see Hunter, J.M.J., ‘The UNCITRAL Model Law’, 13 International Business Lawyer (1985) pp. 399–402Google Scholar, and Paulsson, J., ‘Report on the Uncitral Model law’, 52 Arbitration (1986) pp. 98–102Google Scholar. Most of the comments published on the Model Law are based on the Working Group draft and reflect the earlier criticisms, although overall the draft met with approval. See, e.g., SirMichael, Kerr, ‘Arbitration and the Courts — The UNCITRAL Model Law’, 50 Arbitration (1984) p. 3Google Scholar also in 34 ICLQ (1985) p. 16; Hunter, J.M.J., ‘Proposed Model Law on International Commercial Arbitration — Further Developments’, 49 Arbitration (1983) p. 247Google Scholar, id., ‘UNCITRAL Model Law — Which Road Should London Take?’, 49 Arbitration (1983) p. 288Google Scholar; the account of the 1984 UNCITRAL Arbitration Symposium in 41 Arbitration (1974) p. 252 and, in particular, Lord Wilberforce's summing up at p. 257 as well as his Conference Address at the Chartered Institute of Arbitrators Annual Conference 1984, 51 Arbitration (1985) pp. 263–270.

153. See Slade, L., ‘London Court of International Arbitration’ in American Arbitration Association, General Counsel's Annual Report (1986) p. 43.Google Scholar

154. Loc.cit., n. 152, p. 19.

155. Loc.cit., p. 402.

156. Loc.cit., n. 46, p. 670.

157. Ibid., pp. 678–679. Böckstiegel also states (p. 675) that Germany would have preferred not to limit the Model Law to international arbitration.

158. The US delegation included representatives of the State Department, the senior US member of the Iran-US Tribunal and the General Counsel of the AAA.

159. Hoellering, M.F., ‘The UNCITRAL Model Law on International Commercial Arbitration’, 20 International Lawyer (1986) p. 327 at p. 338–339.Google Scholar

160. The Washington Foreign Law Society is undertaking a study which is initially limited to a detailed comparison of the Model Law and US Federal and state law. As mentioned supra some jurisdictions in the United States are considering the possible acceptance of the Model Law in one form or another in their legislation, with a view to establishing international arbitration centers in their territories. The 1984 decision of the US Supreme Court in Southland Corp. v. Keating (104 S. Ct. 852), which holds that the US Arbitration Act supersedes state law in transactions involving inter-state and foreign commerce under the Supremacy Clause of the US Constitution, raises the question to what extent there is room for the contemplated state legislation.

161. Boyd, S.M., ‘Comment of a U.S. Lawyer on the UNCITRAL Model Law on International Commercial Arbitration’, International Practitioner's Notebook, no. 34 (1986) pp. 1–4.Google Scholar

162. Cf., as to English law, Lord Wilberforce: ‘It is not really good enough when we are trying to persuade people to come to London, rather than Paris or New York, to expect them to discover what rights of appeal there are to the courts from a study of the Nema and 16 following cases, or to ascertain what misconduct means from a study of even more numerous authorities’ (taken from his Conference Address at the Chartered Institute of Arbitrators Annual Conference 1984, 51 Arbitration (1985) pp. 265–266).